Writing to Your Sentencing Judge

Does a Letter Before Sentencing Help?

In many cases, a defense attorney will encourage his or her client to write their judge before sentencing to humanize a defendant. Judges receive many of these such letters. So many, in fact, that they can lose their potency with the Court.

Every defendant is a person. They are somebody’s son or daughter. They have families, friends, and often children of their own. Putting a vulnerable, human face to the name a sentencing judge sees is a good thing. Normally.

When do These Letters Hurt?

However, take for instance a convicted drug lord who is purported to have been responsible for the murders of hundreds of people. He wrote such a letter to his judge pleading for mercy. As detailed in a recent article in the New York Times titled, “In 7-page Note, Drug Lord Asks a Judge for Leniency“.

Here is an excerpt from that article:

“Good day to you, sir,” the letter to the judge began. “I am humbly asking if you could be lenient on me.”

Judges receive letters all the time from defendants who are about to be sentenced, but this letter, seven pages long and neatly handprinted, came from no ordinary prisoner.

The writer was Christopher M. Coke, described by United States prosecutors as one of Jamaica’s most brutal drug lords. He led a trafficking ring from an armed stronghold in Kingston, moving guns and drugs between Jamaica and the United States, prosecutors said, and his soldiers patrolled the streets and guarded stash houses. He ordered murders, shootings and beatings, and, when one man stole drugs, the prosecutors said, Mr. Coke killed him with a chain saw.

Last year, Mr. Coke was arrested and sent to Manhattan, where he has since pleaded guilty to conspiracy charges. He could receive a 23-year sentence.

And it was in that context that Mr. Coke, 42, took it upon himself to send a polite letter to the judge, Robert P. Patterson Jr. of Federal District Court.

Addressing him as “Justice Patterson,” Mr. Coke said he accepted responsibility for his actions, although he did not apologize in the letter. And he asked that the judge use his “discretion” to sentence him “below the guideline range.”

In doing so, Mr. Coke offered a list of 13 reasons, with some broken into subcategories. For one thing, he said, he had lost his mother recently. “I was told that while she was on her deathbed, she was crying and kept calling my name.”

And his 8-year-old son had been traumatized by his arrest, he said. “I was told that he is constantly asking for his daddy,” Mr. Coke explained, adding “He cries all the times since I am gone.”

The letter goes on to describe all the good things Mr. Coke has done for his community and whines that he’ll be deported after he completes his sentence:

Mr. Coke also complained that because he would be deported after serving his sentence, he would leave the country “without the possibility of ever visiting” his brother or other relatives who he said lived here.

Mr. Coke also described “charitable deeds and social services” that he said he had provided to his community, including efforts for the elderly, the unemployed, parents and a “back-to-school treat” for students that included school bags, books, pens, pencils and uniforms.

How This Hurts Defendants

In his letter, Mr. Coke tells his woeful tale of how his sentence will effect him. However, because of his perceived evil deeds, the next time his sentencing judge receives a similar letter, he may only remember the last time he read one. This could have no effect on his next sentence pronouncement, or it could make his decision even harsher.

Here’s the good news. Many judges want to see remorse and guilt. A well written letter to the sentencing judge taking responsibility for the actions a defendant has already plead guilty to (or been convicted of) can go a long way. Apologies and expressions of remorse go much further than trying to look like the victim. As seen in the letter written above, Mr. Coke never apologies for his actions which lead to his conviction.

This omission could mean the difference between leniency from the court and a harsher sentence. Time will tell in this case, but take heed when writing a letter to a sentencing judge.

Painting yourself as a victim is bad.

Expressing remorse for your sins is good.

New US Sentencing Commission Data Shows Interesting Trends

New US Sentencing Commission Data: 3rd Qtr. 2011

Just released from the US Sentencing Commission is their quarterly report containing a considerable amount of data concerning the October – June months of sentencing in United States courts. Below is a short, and by no means total, breakdown of some of the interesting data points.

Sentences Inside and Outside the Guidelines

  • Only 1.8% of cases went above the guidelines range;
  • 43.9% of all sentences were below guidelines range;1
  • 61% of all below-guidelines sentences were initiated by the prosecuting US Attorneys;2

Now we’ll look at crimes by category:

  • The most cases sentenced were immigration cases: 21,415 or 35.2% of all cases during this time period;
  • Drug offenses, not surprisingly, were the second-most cases: 18,371 or 30.2%;3
  • Fraud (5,351) and Firearms (5,726) charges came in a close 3rd/4th: together accounting for another 18.2%;
  • Together these crime categories make up 83% of all sentenced defendants in the first three quarters of 2011;

Best and Worst

Circuits

Being a defendant in some circuits is better than others. For instance the 1st, 3rd, and 11th Circuits have ruled that the Fair Sentencing Act of 2010 applies to cases that were pending, but not yet sentenced, at the time of the law’s enactment.4 Below is a breakdown of the most favorable and least favorable circuits to federal defendants, by the numbers.

  • A defendant is most likely to get a within-guidelines sentence within the 5th Circuit: 70.7% of all cases within that circuit are within range;
  • A defendant is most likely to get a below-guidelines sentence in the 9th Circuit, followed closely by D.C.: 61.2% and 60.1% of defendants of those circuits, respectively, were given below-guidelines sentences;
  • A defendant is most likely to get an above-guidelines sentence in the 7th Circuit: 2.3% of their cases are above range (that is 28% higher than the national average);

Districts

As with the Circuits above, the District Courts below them have an even wider variance in data. Below are some amusing numbers about US District Courts.

  • Where will a defendant get ratted on?
    • Most likely District: Eastern Kentucky with 37.7% of all sentences reduced for US Sentencing Commission §5K1.1 substantial assistance to the government;
    • Least likely District: Nebraska with only 2.3% of cases reduced for §5K1.1 assistance;
  • Where can you get fast track departures?5
    • The 9th Circuit gave the lion’s share with 36.7% of their cases getting these reduction (constituting 81.1% of all cases getting §5K3.1 reductions nationwide) with the Districts of Arizona and Southern California leading the way;
    • The 10th Circuit (by the District Courts of New Mexico and Utah) and 5th Circuit (by the District Courts of Southern Texas), make up nearly all the rest of these reductions (11.9% of all Tenth Circuit cases and 4.3% of all 5th Circuit cases got these reductions make up 18.2% of nationwide §5K3.1 reductions)

Offenses

What are the worst offenses to be charged with?

  • Manslaughter has the highest rate of above-guidelines sentences: 21.2%;
  • Murder comes in a distant second with 14.6% of sentences being above the guidelines range;

What are the “best” offenses to be charged with?

  • Antitrust had the largest percentage of below-guidelines sentences with 80%, but the sample group was only 8 cases;
  • Money Laundering came in second with 65.5% of cases receiving lower-than-guidelines sentences;
  • Third place goes to Child Pornography sentences with 61.7% of sentences going below the guidelines;

Disclaimer

All of the data herein comes from the report from the United States Sentencing Commission as cited and linked at the top of this post. The data interpretations and opinions derived from all of this data are my own and are in no way exhaustively researched with scientific peer review. I hope you enjoyed reading the data fragments I found most entertaining! The following is a data disclaimer from the US Sentencing Commission report itself

According the US Sentencing Commission:

Users of the quarterly releases are cautioned that the quarterly data are preliminary only and subject to change as the Commission collects, analyzes, and reports on additional cases throughout the fiscal year. When data for each new quarter is made available, the Commission will update the previous preliminary quarterly totals in the most recent release until the release of the final fiscal year data in the Commission’s Sourcebook … As a result, quarterly data should not be considered final until publication of the Commission’s Annual Report and Sourcebook

============================================================================================

  1. Interpolated from 1.8% above range plus 54.3% below (56.1% subtracted from 100% []
  2. 26.8% of all sentences were government sponsored, below guidelines sentences where a vast majority were §5K1.1 or §5K3.1 motions []
  3. Trafficking, Communication Facility, Simple Possession []
  4. August 3, 2010 []
  5. §5k3.1 Early Disposition Programs: Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides. []

Norway v. American Criminal Justice Statistics

As The Right Bemoans Norway’s Criminal Justice System, It Is One Of The Safest Countries On Earth

This heading is the title of this article from ThinkProgress which takes a close look at the criminal justice statistics of Norway’s criminal justice system. There has been a sharp emotional response to Norway’s statutory maximum prison sentence of 21 years (parole in 14) in regards to the suspect, Anders Breivik, in the recent terrorist attacks.

While these attacks are horrific and unconscionable, the statistics on Norway’s criminal justice system should give American’s pause before criticizing what seems like a much-too-lenient system. Below is an excerpt from that article:

[B]efore Americans rush to judge Norway’s criminal justice system — which relies far less on punitive measures than ours and that has a strong focus on rehabilitation — they should look at the results it produces. Norway is one of the safest countries on earth, boasting some of the world’s lowest crime rates:

Norway Has Some Of The Lowest Murder Rates In The World: In 2009, Norway had .6 intentional homicides per 100,000 people. In the same year, the United States had 5 murders per 100,000 people, meaning that the U.S. proportionally has 8 times as many homicides.

Norway’s Incarceration Rate Is A Fraction Of That Of The United States: 71 out of every 100,000 Norwegian citizens is incarcerated. In the United States, 743 out of every 100,000 citizens was incarcerated in 2009. The U.S. has the world’s highest incarceration rate.

Norway’s Prisoner Recidivism Rate Is Much Lower Than The United States’: The recidivism rate for prisoners in Norway is around 20 percent. Meanwhile, it’s estimated that 67 percent of America’s prisoners are re-arrested and 52 percent are re-incarcerated.

While many Americans may have an understandable emotional reaction to a country that strives to treat even the most heinous of murderers humanely, they should also be aware of the fact that Norway’s criminal justice system appears to have produced a nation that is much safer and imprisons far less of its people than the United States or just about any other country.

Decisions Involving Tapia v United States

Rehabilitative Sentences are Illegal

If you have a loved one who was sentenced to a longer than normal term of imprisonment specifically so he or she could participate in rehabilitative programs within the Bureau of Prisons, that sentence is unlawful and we can help get it reversed! Please read on for important information.

Contact Us for a Free Consultation

PCR Consultants is a different kind of consulting agency. PCR stands for Post Conviction Relief and we focus on changing outcomes when contending with the Department of Justice and Bureau of Prisons.

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses and learn about us and how our services work on our about page.

Tapia and its Fallout

As reported in this earlier article on Supreme Court decisions this session, Tapia v United States was an important sentencing decision that can and will impact sentencing in U.S. District courts from now on. The collateral effects of the decision are now beginning to be felt, and here we’ll see two opposing decisions from two separate circuits involving the Tapia ruling in supervised release revocation decisions.

In Tapia, the Ninth Circuit decision was reversed in a 9-0 decision by the United States Supreme Court. The high court’s opinion was authored by Justice Elana Kagan on June 16, 2011. Justice Sotomayor filed a concurring opinion, which was joined by Justice Alito. This ruling held that:

18 U.S.C. § 3582(a) does not permit a sentencing court to impose or lengthen a prison term to foster a defendant’s rehabilitation.

This says that sentences passed down by judges that were lengthened specifically to enable the defendant to participate in rehabilitating programs within the Bureau of Prisons are considered unlawful. The ruling here is not challenged now by lower courts in original sentencing hearings. It is, however, being picked apart within hearings which deal with revocations of supervised release.

The First Circuit, in US v. Molignaro, No. 10-1320 (1st Cir. July 6, 2011), applied SCOTUS’s ruling in Tapia to reverse a lengthened term of imprisonment intended to facilitate a defendant’s rehabilitation upon revocation of his supervised release:

Acting under 18 U.S.C. § 3583(e), the district court revoked the order for supervised release and resentenced the defendant. Federal advisory sentencing guidelines recommended imprisonment of 3 to 9 months after such a violation, but the district court ordered 22 months (followed by further supervised release). The court imposed the longer prison sentence so that Molignaro would have ample time to take part in a course of sex therapy at a nearby federal prison (Devens) that could run for up to 18 months, and although the judge did not state the period he would have imposed in the absence of the treatment program, he did say that 9 months would have been too short in light of what he found to be Molignaro’s choices to go where children were present and the risk of untoward behavior was great. Molignaro objected that setting the imprisonment term with the goal of providing therapy was error as a matter of law, and that in any case 22 months was unreasonably long. We hold that the resentencing court’s objective of tailoring the length of imprisonment to provide adequate time for treatment was barred by statute, and we vacate the sentence and remand for resentencing.

The Fifth Circuit ruled the opposite way in US v. Breland, No. 10-60610 (5th Cir. July 19, 2011):

The question presented in this appeal is whether a district court may consider a defendant’s rehabilitative needs when revoking the defendant’s supervised release and requiring him to serve the remainder of his sentence in prison. The district court sentenced the defendant, William C. Breland Jr., to thirty-five months of imprisonment upon revocation of his supervised release. On appeal, Breland challenges the procedural reasonableness of that sentence, arguing that the district court imposed it for the sole purpose of qualifying him for the Bureau of Prison’s (“BOP”) 500-hour drug-treatment program. He also challenges the substantive reasonableness of the sentence. Because the plain language and operation of 18 U.S.C. § 3583(e) and (g), which governs post revocation sentencing, permits the consideration of rehabilitative needs, and because Breland’s sentence is not otherwise unreasonable, we affirm.

What this all means

To the lower courts, the application of Tapia to sentences handed down during supervised release revocation hearings is open to interpretation. Circuits are split and there is no way to tell which Circuit will go in which direction. This conflict in Circuit decisions will invariably be brought to the Supreme Court for further interpretation. Whether Certiorari will be granted is only up to the high court itself. Before this happens, however, different Circuit courts will continue to treat this issue within their own decisions.

If you want to find out if these rulings can help you or a loved one, please contact us to find out.

The (over)Power of the Federal Government in America

How America’s Federal Government is Taking Over

“They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
– Benjamin Franklin

Today, the United States government enjoys unprecedented power over its citizens. With each new administration that enters 1600 Pennsylvania Ave., new legislation is passed which encroaches more and more into the freedoms that American citizens once enjoyed.

Let’s face it: the United States of America that most of us perceive it to be only exists in Country-Western music. In this piece, I’ll shed light onto:

  • The Constitution and its amendments that were created to protect our freedoms;
  • The origin and evolution of the federal government as we know it today;
  • Laws and court decisions that affect them;
  • The difference between freedom and security.

Constitutional Protection

The Supremacy Clause

Before the U.S. Constitution was written and ratified, the Articles of Confederation1 was the document by which all other laws were judged against. These articles held a much stronger stance on the idea of individual state sovereignty and a much weaker stance on the role of centralized government in daily life. To resolve the eventual and unavoidable conflict between state and federal laws, the Constitution included the Supremacy Clause2 which reads:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” (Emphasis added)

In plain English this states that the law of the U.S. government takes precedent over conflicting laws of any state only if the federal government is acting within its constitutionally authorized powers. That is why the phrase “in pursuance thereof” was put into the text of the Supremacy Clause above.

The Tenth Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
— Tenth Amendment to the United States Constitution

Reading this very short amendment to the U.S. Constitution shows that, unless the constitution delegates a power to the centralized federal government, the federal government doesn’t get that power. However, this amendment is missing a word that originally appeared in Article II of the Articles of Confederation, and the omission of this word makes it weak and ambiguous.

That word is: Expressly.

Specifically, the debate at the time the States were considering ratification of the Bill of Rights (including the Tenth Amendment above) involved starting the proposed amendment with “The powers not (expressly) delegated . . .” to the federal government. Doing so would keep the federal government from having what are called Implied Powers3 which can be open to interpretation depending on the mood, whim, or fad of the current era and administration in power.

The original debate4 from August 21st, 1789 is a fascinating view into discussions the Founding Fathers had about, and insight into the thought processes behind drafting the Constitution.

If the Supremacy Clause and Tenth Amendment are put together, it shows that the Supremacy Clause places all federal laws over conflicting state laws, so long as the federal law is made pursuant to the Constitution. However, now that we’ve seen that the powers of the federal government to make laws are not expressly limited, this opens the door for federal law to trump any state law and call it an “Implied Power.”

Necessary and Proper Clause

The last piece of the Constitution which bears mentioning here is the Necessary and Proper Clause (Article I, Section 8, Clause 18)5, which states that

“The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the Enumerated Powers6, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

When these three parts of the Constitution are looked at together, a problem can be seen:

  • The Supremacy Clause7 places all constitutional federal laws above State laws which may conflict with them;
    • The Tenth Amendment doesn’t expressly limit federal lawmaking, except to the self-interpretation of Implied Powers;
      • The Necessary and Proper Clause8 gives power to the federal government to make any law which is considered necessary and proper to carry out the powers it can imply for itself.

At the time of ratification, the architects of the Constitution thought it would be superfluous to enumerate explicit powers to the federal government. James Madison felt that without implied powers, the “Constitution descended to recount every minutia,” and did not wish to make the Constitution that long (taken from the 1789 Constitutional debate minutes, above).

Although well-intentioned, Mr. Madison didn’t take into consideration where future Presidents and their administrations would push their implied powers. If a Congress can mandate that a state comply with a national law which violates the Constitution’s provision for a state to manage itself where the federal government is not given power (see The Patient Protection and Affordable Care Act9 and the The Patriot Act10 below, to name just two), then a State would have no power at all to govern itself unless it is at the discretion of the federal government and not the Constitution.

In the Beginning…

Pre-Civil War

Alexander Hamilton, one of the founding fathers, recognized the danger in a centralized government over-stepping its bounds when making laws and addressed the intent of the Supremacy Clause in the Federalist Papers: Federalist No. 3311. The relevant part of that essay is this:

“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.” (Emphasis added)

Some states began to recognize the over-stepping of the federal government and would consider a federal law, “Null and void” if it considered a law unconstitutional. This was the reason behind laws passed by some southern states, such as South Carolina’s Nullification Ordinance12 (enacted November 24, 1832), in response to tariffs enacted by a northern-dominated government. (In this case, the tariffs in question were considered beneficial to the industrial North, but were detrimental to the industrially dependent, agricultural South.)

This protest from the South led to the Nullification Crisis13: the first open aggression between the federal and a State governments in American History. In reaction to the Nullification Ordinance, then-President Andrew Jackson sent a small naval fleet down to South Carolina and also threatened to send federal ground troops to enforce the tariffs.

“Jackson authorized this under color of national authority, claiming in his 1832 Proclamation Regarding Nullification that “our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land; and for greater caution adds, “that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Here, Jackson clearly omitted the phrase “which shall be made in pursuance thereof” from the Supremacy Clause, indicating that the Constitution was a document conferring absolute sovereign authority to the federal government — which was starkly in opposition to Jefferson’s assertion in The Kentucky Resolutions of 179814, that “the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; would make the federal government, and not the Constitution, final judge of its own powers.” Hence under Jackson’s view, federal law was final, and states had no choice but to obey it.”15

As can be seen here, President Jackson didn’t bother concerning himself with the constitutionality of the tariffs. His concern was that states fall in line with federal law without challenge.

The Civil War

In grade school we learn that the Civil War was about ending slavery in America. While slavery was one issue, the larger issue at hand concerned a State’s right to enact its own laws regarding issues such as legalized slavery. Since slavery by today’s standards is a very bigoted and all-around-unpopular idea, using the idea of abolishing slavery was an easy way to mask the real reason behind the Civil War: Establishing U.S. governmental supremacy over states, regardless of constitutionality.

Abolishing slavery was a good vehicle to play on the emotions of the masses in order to garner popularity for a conflict that stripped away the rights of States and individuals within those States. The immediate impact, though, was about money.

Some historians argue that the Southern secession and the “War Between the States” was actually much more of a financial fight than a war over slavery. Northern-inspired tariffs benefited Northern interests but were detrimental to Southern interests and were destroying the economy in the South16.

With the defeat of the Confederacy in 1865, the U.S. federal government solidified its presence as the highest law in the land — affirming that any challenges to its authority would be met with military might. The constitutionality requirement of the Supremacy Clause could now be overlooked as Andrew Jackson did, with little or no resistance from individual states.

As you can seen here, in the 89 years after the ratification of the U.S. Constitution, the centralized government moved from:

  • Assuming that the Supremacy Clause was a truism and needed no further clarification of specific powers; to
  • Pushing the applicability of the Supremacy Clause under a broad definition of Implied Powers within the Constitution; to
  • Ignoring State’s rights under the Constitution and asserting supreme, centralized federal rule with military might.

Laws and Jurisprudence

I will not delve into every law that encroaches into a State’s right to govern itself effectively, or every court case decision that legalizes the centralized U.S. government’s attempts to do so. I will, however give a few examples of each of these to illustrate the aforementioned assertions.

Health Care Reform
The most recent, red-button issue that brings to light the national government’s move to expand its powers is The Patient Protection and Affordable Care Act. Some call this new law Obamacare. This law mandates that every American purchase and maintain health insurance, or face fines if found without it.

In a lawsuit17 filed by 26 states jointly, the constitutionality of the new health care reform legislation was called into serious question:

“The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax. The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.”18

District and Circuit Courts are split in their decisions regarding these cases (there are more than just the joint case cited above). It is effectively the government-mandating that a citizen of the U.S. purchase a private-sector product. There is a very slippery slope here — one that we shouldn’t be facing given the protections in the Constitution and Tenth Amendment. However, this is what we’re facing and the courts are conflicted.

The Patriot Act
The Patriot Act is a minefield of Constitutionality issues. The passage of the bill came shortly after the terrorist attacks of September 11, 2001, and was a reaction to a national sense that our security was breached. The sense of nationalism in America was so strong at the time that opposition to the bill was considered “Un-American.” (The name itself suggests that proponents are patriots, and detractors must not be!)

Most of the criticisms of this bill, constitutionally speaking, are related to the Fourth Amendment protection against unlawful searches. From National Security Letters19, which allow the FBI to conduct records-searches (telephone records, e-mail, financial) without a warrant, to indefinite detention of illegal immigrants, this knee-jerk bill arguably did more to violate the Constitution and individual civil rights than any other bill in history.

Entire novels have been written about this controversy20, but the main idea of the bill is that it gave agencies like the FBI freedom to search people without a warrant and without informing them of the search. The Fourth Amendment to the U.S. Constitution is short and sweet:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Court decisions of note
The following is a short list of court cases which pertain to this trend of governmental power grabbing.

United States v. Darby21 is an often repeated decision by the U.S. Supreme Court which highlights the problems that exist because the word “expressly” was omitted from the Tenth Amendment. This establishes that the federal government can construe Implied Powers very broadly with little to no recourse by a State government.

Missouri v. Holland22 held that the federal government’s ability to make treaties trumps any State concerns that such treaties might abrogate States’ rights arising under the Tenth Amendment.

Mayfield v. United States23 found that one or more portions of the PATRIOT Act violated the Fourth Amendment protection against illegal searches and seizures.

United States v. Alfonso Lopez Jr.24 was the first Supreme Court case since the New Deal to set limits to Congress’s power under the Commerce Clause of the United States Constitution.

Gonzales v. Raich25 ruled that under the Commerce Clause, Congress may criminalize the production and use of home-grown marijuana even where States approve its use for medicinal purposes.

(Author’s Note: this decision means that even when the act is committed inside a State, and the results of such commerce never leave the State, it can still be a federal crime. Why? Because growing medicinal Marijuana can impact the supply-and-demand chain outside a given State’s borders. Justify it however you want, Supreme Court, but anything grown, used, and/or sold within a single State’s borders cannot constitutionally be criminalized at the federal level.)

Freedom vs. Security – Boiling the Frog

Boiling the Frog

Have you ever learned how to boil a frog? If you drop a frog into a pot of boiling water, it’ll immediately hop out. However, if you place the frog into room temperature water, then slowly boil that water with the frog in it, he’ll gradually boil to death before realizing the need to escape.

It’s an old proverb that is applicable to contemporary Americans. Over the last 180 years, since the time of the Nullification Crisis before the Civil War, the centralized federal government has incrementally exercised more and more power over the States and citizens beneath it that, much of the time, there is no public outcry at all for the loss of rights and freedoms enjoyed before.

Other times the power transfer is much more observable. In the case of the PATRIOT Act, as the United States was grieving deeply over the instantaneous loss of thousands of civilians at the hands of terrorists, we as citizens were willing to tolerate this Act and all the intrusions it meant in order to feel safer and more secure. Initially we were told it was just emergency provisions, as it was set to expire three years later.

Even though it was written with an expiration date, the emergency powers granted by the Act have not gone away. Congress has extended the Act multiple times, as recently as February 8, 2011 by the oversight of President Barack Obama.

Why has there been no public outcry? The short answer is that we’ve been living with infringed civil liberties for enough time that it wasn’t even news. This is our boiling frog.

Freedom vs. Security

A financial author and investment expert named Robert Kiyosaki confronted a simple human emotion and illustrated it with jobs. Freedom is what most Americans claim to cherish to their core. Safety and security are basic human needs and the drive to achieve security is very strong26. However, to Kiyosaki, freedom and security are opposing ideals.

One of the most secure jobs one can think of in America would be government service — more specifically, military service. Once out of basic training, a new member of the military cannot quit. It is a steady paycheck, for the period of enlistment, guaranteed. However, the security of this employment means giving up a number of freedoms (ironically, to protect the freedoms of others). A soldier cannot choose where he or she lives, what job he or she is assigned, when he or she deploys, or how much he or she makes. Security of employment, therefore, comes with a sacrifice of freedoms.

Freedom of employment, namely self-employment, comes with a complete lack of security. Personal income has infinite potential, there are no set work hours, and one has as many vacation days as one wants. However, there are no guarantees in business-ownership. There is no safety net; no security of income.

The desire for freedom directly opposes security. It is much the same for citizens of free and democratic societies. The level of desired security always comes at the price of freedom. The number of freedoms that we, as American citizens, are willing to sacrifice in the name of security is a tough balancing act. However, once a society loses any freedom by relinquishing it to the power of the federal government, that freedom is rarely, if ever, returned.

Conclusion

Some of the most fundamental aspects of American society are based on security, not freedom. The largest expenditures of the U.S. government are defense and Social Security/Welfare/Medicare. The national debt is over $14 Trillion. The daily budget deficit is over $4 Billion every day.

As a society, the U.S. is going broke. It/we are going broke to protect physical security (defense and Medicare/Medicaid), and financial security (Social Security/Welfare). These are safety nets that the People won’t do without. These programs deprive us of our freedoms of income potential (taxes) and civil liberties (the PATRIOT Act, et. al.).

Calling America a “free society” is a complete fallacy and misnomer. Americans have accepted the bending and breaking of our Constitution and the freedoms it provides in the name of security.

  • In the name of equality we abolished slavery and won the Civil War. What we got was a federal government that could rule outside the Constitution for an immediate “greater good” but established a precedent that went far beyond slavery.
  • In the name of financial security, we established Social Security27. What we got was the second largest expenditure in the current U.S. budget and the taxes/debt that go towards maintaining it. Almost half of federal income tax dollars go to Social Security and medical care (Medicare/Medicaid).
  • In the name of safety we allowed the PATRIOT Act. What we got was government and law enforcement that could violate the Fourth Amendment at will, so long as it was construed to protect against terrorism.
  • In the name of protecting our children, America has established and tolerated laws which violate the basic freedoms given by the Constitution on a daily basis28.

Freedom is a warm and fuzzy word that gives pride to Americans. However, how much freedom is there left that we had in 1776? Is it worth it?

Before you answer, take a look at the Traffic Safety Administration. Just voicing one’s opinion negatively toward the TSA, a First Amendment guarantee, can justify being treated as a terrorist29.

My personal answer is no.

A lot of hot air is given to the topic of “Personal Responsibility” that citizens should take upon themselves. This idea of fending for one’s self is the basis of what freedom is. Taking responsibility for income, health, personal safety, and future is what freedom is. Reliance on the government to supply these things for us is, in essence, giving away the freedoms we love.

It cannot be had both ways.

I choose freedom every time. However, the representative government America has will not bend on spending for defense and Social Security lest they be voted out of office. We, as a people, have traded (or tolerated the trade of) freedom for security. It’s hypocritical to expect security while demanding freedom. Until the voting citizens of America demand their freedoms and accept the responsibility their own security, the status-quo will not change.

Freedom and security are trade-offs. It cannot be had both ways.

  1. Text of the Articles of Confederation []
  2. Provision under Article IV, Section 2 of the U.S. Constitution, providing that federal law is superior to and overrides state law when they conflict. Legal Information Institute []
  3. The Necessary and Proper Clause from Article I, Section 8, clause 18 of the U.S. Constitution grants to Congress the power to enact laws to carry out the “enumerated powers” (Clauses 1-17) that are specifically assigned to the federal government. []
  4. House of Representatives, Amendments to the Constitution; 18, 21 Aug. 1789;Annals 1:761, 767–68 []
  5. Implied Powers []
  6. Article I Section 8, Clauses 1-17 []
  7. Provision under Article IV, Section 2 of the U.S. Constitution, providing that federal law is superior to and overrides state law when they conflict. Legal Information Institute []
  8. Implied Powers []
  9. H.R.3590 – Patient Protection and Affordable Care Act: full text []
  10. H.R. 3162 — USA PATRIOT Act: full text []
  11. Full text of Federalist No. 33 []
  12. South Carolina Ordinance of Nullification, November 24, 1832 []
  13. Discussion of the Nullification Crisis []
  14. http://www.constitution.org/cons/kent1798.htm []
  15. Taken from the Wikipedia entry for “State’s Rights” []
  16. The Great Centralizer: Abraham Lincoln and the War between the States>/a>; DiLorenzo (1998) []
  17. 26-State Class Action Complaint filed 3/23/10 []
  18. 26-State Class Action Complaint filed 3/23/10 []
  19. A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 []
  20. Amazon’s list of books on the PATRIOT Act and its impact []
  21. United States v. Darby 312 U.S. 100, 124 (1941) []
  22. Missouri v. Holland, 252 U.S. 416 (1920) []
  23. Mayfield v. United States, 504 F. Supp. 2d 1023 (2007) []
  24. United States v. Alfonso Lopez Jr., 514 U.S. 549 (1995) []
  25. Gonzales v. Raich, 545 U.S. 1 (2005) []
  26. see Maslow’s Hierarchy []
  27. The Social Security Act of 1935 []
  28. Trading Freedoms: for the Children []
  29. TSA security looks at people who complain about … TSA security []

Important Recent Supreme Court Decisions

The U.S. Supreme Court has made some very important decisions during this year’s session. Some of these decisions directly affect the life and possibilities of relief for those facing or serving time in federal prison. Here are three of the biggest ones.

Tapia v. United States

[Decision]

Federal law does not allow rehabilitation to be used as a factor when handing down a sentence1. Now the Supreme Court has put case law behind this. Ms.Tapia was given a lengthened sentence of incarceration for the purpose of providing sufficient sentence-length to participate in the Bureau of Prison’s Residential Drug Abuse Program (RDAP). Successful completion of this program could shorten her sentence by up to on year if completed successfully. However, this reduction is not guaranteed.

Why is this important? Two reasons: First, the U.S. Supreme Court is on-record acknowledging that prison has no rehabilitative properties. Second, a judge cannot extend a sentence that would have normally been handed down in the interest of rehabilitation. If you were sentenced in this way, you can now appeal citing Tapia v. United States and have the excessive length removed from your sentence. Let us help you do that!

Brown v. Plata

[Decision]

The United States incarcerates its citizens at seven to ten times the rate of European countries2. In real-world terms, one out of every 736 people in the United States is currently behind bars.

We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do3.

In California, overcrowding has become so sever that — as of this court decision — being incarcerated there is a violation of the Cruel and Unusual Punishment clause of the 8th amendment to the U.S. Constitution! The decision in Brown v. Plata was to order California to decrease its prison population. While this decision seems obvious to many citizens who recognize how broken the prison system is, the Supreme Court wasn’t so convinced. What should have been a slam-dunk, unanimous decision ended up being a 5-4 split in favor of Plata. Some justices believe that releasing any individual before their sentence is completed puts the public at undue risk.

Respectfully, I believe that his notion is simply the result of fear-mongering by the uninformed. Releasing people from their sentences ahead of schedule will not cause the sky to fall.

Bond v. United States

[Decision]

Until this decision, many defendants were prevented from making legitimate claims against the court because certain parts of the Constitution were not considered to be appropriate for these individuals to use.

In Bond, the defendant inflicted a minor burn on her husband’s mistress by putting caustic substances on objects the woman was likely to touch. She was charged in federal court for violating the Chemical Weapons Treaty4. This charge is reserved for terrorists using chemical weapons and dirty bombs — not putting skin irritants on a mistress’ keyboard and mouse. Bond challenged this, citing that her charge violated the 10th amendment to the U.S. Constitution which prevents the federal government from interfering with powers reserved for States.

More can be said about this decision, but in basic terms: if the federal government can bring down charges based on major treaties and Congressional acts simply to railroad a defendant, then a defendant can bring down the full force of the Constitution to combat such insanity. The 10th amendment was formerly reserved for State’s use only in federal court (e.g., the 26-state class action lawsuit against the current “ObamaCare” bill). Now, under Bond, an individual defendant may use the 10th amendment as a defense in federal court.

Round-up

While only the Tapia ruling has immediate implications on federal defendants and federal inmates, all three decisions are important in the inevitable reform of the American system of mass incarceration. How this reform will occur is anybody’s guess. However, when the federal and state government refuse to actively remedy the cruel and unusual conditions under which they incarcerate the citizens of this country, the courts can and do assert their power to provide relief and take the lead in the needed reform of laws, jurisprudence, and perceptions of the prison system.

  1. 18 U.S.C. 3582 []
  2. From the International Centre for Prison Studies []
  3. In Defense of Flogging by Peter Moskos []
  4. 18 U.S.C. §229(a), F(1), (7), (8) []

Felons in America are no Longer Citizens

Felons Losing Citizenship

What makes the difference between a citizen and non-citizen of the United States? A laundry list of items can be made to cite what makes a these differences, but the core of this list can be found in the U.S. Constitution.

The Bill of Rights1 contains the first ten amendments to the Constitution, and enumerates what the Declaration of Independence calls “Inalienable Rights”2of all men. Specifically, those who are residents and citizens of this country. The Amendments that follow the Bill of Rights expand these rights further.

What happens when a citizen of the U.S. becomes a felon? Answer: many of those inalienable rights become alienated to them. Lets take a closer look at some of these.

The Second Amendment3 says that the right to keep and bare arms shall not be infringed. Yet, a felon in the U.S. cannot keep and bare arms legally and the consequences for doing so are dire4.

The Fourth Amendment5 protects citizens of the U.S. from unlawful search and seizure. Yet, a felon on or off of probation, parole, or supervision loses the standard of the Fourth Amendment where law enforcement needs only
reasonable suspicion to invade their privacy.

The Fifth Amendment6 protects citizens against self-incrimination. Yet, a felon on probation, parole, or supervision must adhere to rules that require honest answers to their supervising officer or risk violating their supervision. Even if
answering that question would mean incriminating themselves. That is placing a felon between a rock and a hard place: between their Fifth Amendment protections and their rules of supervision.

The Sixth Amendment7 ensures a speedy and public trial by impartial jury. Is this even possible for somebody with a pre-existing felony record?

The Fifteenth8 and Nineteenth9 Amendments expand the right to vote to all U.S. Citizens. Yet, felons lose this right (some States, however, are starting to give this one back).

This is a short list and a short article. However, the point is to highlight what makes a man or woman a citizen of the United States. Above are six Amendments to the U.S. Constitution which guarantee rights to citizens of its borders.
These six Amendments do not apply to felons, so the title of this article stands: Felons in America are no Longer Citizens.

  1. Text of the Bill of Rights []
  2. Text of the Declaration of Independance []
  3. The Second Amendment to the US Constitution []
  4. Congressional panel on the construed nature and consequences of violating arms control law []
  5. The Fourth Amendment to the US Constitution []
  6. The Fifth Amendment to the US Constitution []
  7. The Sixth Amendment to the US Constitution []
  8. The Fifteenth Amendment to the US Constitution []
  9. The Nineteenth Amendment to the US Constitution []

Federal Supervised Release

Your First Days On Federal Supervised Release

After the prison walls are left behind, after the (hopefully) 6 months spent in a halfway house are finished, the feeling of freedom can be incredible. However, that feeling is usually short-lived with the first visit to the United States Probation Office. Although free of all the rules associated with the Bureau of Prisons, an entirely new set of regulations to abide by.

To begin with, a former inmate on federal supervised release will have a set of standard conditions of release. These include rules that apply to all probationers such as monthly reports, financial disclosures, travel restrictions, firearm prohibitions, and other issues of a general nature. A second set of rules will follow this one, and is specifically designed for each crime of conviction. Drug tests, home inspection details, treatment requirements, etc will all be a part of this second set of conditions.

These conditions are not static and can change as supervision progresses. A change in circumstance or Probation Officer can bring new conditions with it. On the other hand, unnecessary or boilerplate restrictions can be removed (with good reason) with a standard motion to the court. Avoid making the mistake of believing that the rules, and the Probation Officer, you start out with are going to stay that way until released from supervision.

Supervision on a Daily Basis

In every day life, the supervising officer makes little impact on an individual on federal supervised release. Policy normally dictates that an officer sets eyes on their ex-offenders once a month at the least. Post-release treatment will most likely have a much larger impact on daily life. Treatment for drug offenders can be very different, from in-patient facilities to mandated AA/NA types of meetings. If fines, restitution, or special assessments have not been paid, the PO will be very interested and ‘involved’ in your case until those are paid off.

**Important Note: If you plan on applying for early release from federal supervised release, community service and any money owed to the government should be completed and paid before a judge will consider the request**

Expect the first few months of freedom to be much more active months with a supervising officer than normal. After three to four months, without any incidents, violations or trouble, you will drop off their radar and see/hear very little from United States Probation.

 

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