June Roundup

The end of May was not a good one for anybody sitting at the defense table in Federal (and even State) courtrooms. This post is a quick look at the decisions that make defendant’s lives harder.

Maryland v. King

This case is all about 4th Amendment rights, and what constitutes too much invasion of personal liberties (and one’s own body) without a judge’s authorization. In short, can police take a DNA sample of citizens suspected of felony crimes?

In recent years, law enforcement and prison bureaus have taken DNA samples from inmates who are convicted of felonies and certain misdemeanors. These samples get loaded into local and national databases to be compared to DNA samples from unsolved crimes.1

In Maryland, a law was passed which allowed law enforcement to take DNA samples of citizens who were arrested of crimes, but not yet convicted. All without a judicial warrant for this “search” of the body. An old case was solved using DNA, and a conviction for a rape in 2003 was achieved through this process. Defendant King appealed, saying that DNA collection from people not yet convicted of any crime violates 4th Amendment Protections against unreasonable search and seizure.

The United States Supreme Court, in this recent and sharply divided decision, said that these DNA collections are not protected by the 4th Amendment and do not need a judges signature for those arrested for certain crimes.

Some Good News

Managers and leaders are taught in training courses that, in order to communicate dismay, such news must be presented in between positive notes. While there aren’t enough good cases to bookend the bad, there was one decision from the 6th Circuit that bodes exceptionally well in the Fair Sentencing Act (FSA) arena.

The FSA 2010 brought down the sentencing disparity in federal courts between powder and crack cocaine. In the pre-FSA days, there was a disparity between sentences of 100:1. This meant that 2.2 pounds of distributed powder cocaine carried the same sentence as only 10 grams of crack cocaine. FSA 2010 brought that ration down to a mere 18:1. These drugs are not treated equally yet, and it still punishes poor urban defendants disproportionately, but its a start.

Later on, the US Sentencing Commission decided unanimously to apply these reductions retroactively. This retroactive ruling, however, did nothing for those sentenced to mandatory minimum sentences before FSA 2010 became active. In US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013), the 6th Circuit decided in a split decision that it would be the UN-Fair Sentencing Act of 2010 if it did not apply retroactively to defendants who were sentenced before the enactment of the law.

This decision is sure to be reviewed by the entire panel of 6th Circuit judges en banc and may well not make it through that review, but its good news for incarcerated crack cocaine defendants in the 6th Circuit until then.

Brady Rules of Evidence

Prosecutors want convictions. Defense council wants the opposite. However, in the American justice system, the prosecutor holds almost all of the cards. The landmark US Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963) the interest of justice was put before simple conviction numbers.

This opinion editorial from the NY Time on May 18th begins by describing Brady this way:

Fifty years ago, in the landmark case Brady v. Maryland, the Supreme Court laid down a fundamental principle about the duty of prosecutors — to seek justice in fair trials, not merely to win convictions by any means. The court said that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence.
It might seem obvious that prosecutors with any sense of fairness would inform a defendant’s lawyer of evidence that could be favorable to the defendant’s case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

Read more about this complete lack of punishment for prosecutors who commit misconduct from their office in this lengthy Yale Law Journal post. Noting how the Brady decision above has been so thoroughly gutted since 1963, the Times article points out the Thompson case.2

The 2011 case of John Thompson is particularly instructive — as an example of atrocious prosecutorial misconduct and of the Supreme Court’s refusal to hold the prosecutor accountable. Mr. Thompson spent 14 years on death row for a murder he did not commit. He was exonerated when an investigator found that lawyers in the New Orleans district attorney’s office had kept secret more than a dozen pieces of evidence that cast doubt on Mr. Thompson’s guilt, even destroying some. Yet the Supreme Court’s conservative majority overturned a $14 million jury award to Mr. Thompson, ruling that the prosecutor’s office had not shown a pattern of “deliberate indifference” to constitutional rights. Outrageous breaches of due process rights in such cases show that the Brady rule — which seems essentially voluntary in some places — is simply insufficient to ensure justice.

To summarize, prosecutors must disclose all evidence which would be beneficial to the defendant, in order to secure fairness in the judicial system. Prosecutors are not supposed to withhold or suppress evidence in order to secure convictions simply for the sake of convictions. However, prosecutors are not required to exercise this mandate during 95% of federal cases because that many cases end up with plea deals. Further, even if a prosecutor plays unfairly, there are no consequences of note.

Many clients believe that the cards are stacked against them. If this isn’t objective evidence enough that they’re right, what is?
And last but not least…

Fricosu: A final Update

This is a story that we’ve followed through half-dozen-or-so posts (see here, here, here, and here to get started). The anti-climatic ending to this very important 5th Amendment case was reported in this related article over at Wired.com yesterday.

What could have been a huge case in the 5th Amendment fight against a judiciary that doesn’t understand technology fizzled when a co-defendant went all “5K” and gave authorities the password that Fricosu was supposed to supply.

  1. crimes of murder, rape and the like… []
  2. Connick v. Thompson, 09-571 (SCOTUS 2011) []

Clear Views on Supervised Release from the Seventh Circuit

Terms and Length of Supervision

It can be difficult to find discussions at the appellate level of district court obligations when deciding how to impose length and conditions of supervised release. It can be harder still to force a discussion at all from a district court at sentencing to understand the thought process behind these decisions.

On October 18, 2012 the Seventh Circuit published this short opinion in the case of US v. Quinn No. 12-2260 (7th Cir. Oct. 18, 2012). Its short length is reprinted in its entirety below.

Quinn asked the judge to choose a ten-year term of supervised release. He submitted a forensic psychologist’s evaluation, which concluded that he has a lower than- normal risk of recidivism. He also submitted the testimony that two psychologists (Michael Seto and Richard Wollert) recently had presented to the Sentencing Commission regarding the recidivism rate for persons convicted of child-pornography offenses…. [But] the district judge did not discuss either the length of supervision or the terms that Quinn would be required to follow while under supervision.

The prosecutor has confessed error, and we agree with the prosecutor’s conclusion that a district judge must explain important decisions such as the one at issue here. On remand the judge should consider not only how Quinn’s arguments about recidivism affect the appropriate length of supervised release, but also the interaction between the length and the terms of supervised release. The more onerous the terms, the shorter the period should be. One term of Quinn’s supervised release prevents contact with most minors without advance approval. Quinn has a young child, whom he has never been accused of abusing. Putting the parent-child relationship under governmental supervision for long periods (under this judgment, until the son turns 18) requires strong justification.

Our research has turned up only a few decisions that discuss the relation between the terms and length of supervised release. The third circuit has observed that the more onerous the term, the greater the justification required — and that a term can become onerous because of its duration as well as its content…. Rules that allow public officials to regulate family life likewise call for special justification, and lifetime regulatory power is hard to support when the defendant has not been convicted of crimes against his family or other relatives. Other terms of Quinn’s supervised release also may require strong justification when extended for a lifetime.

Although district judges can reduce the length of supervised release, or modify its terms, at any time, 18 U.S.C. §3583(e) — an opportunity that may lead a judge to think that uncertainties at the time of sentencing should be resolved in favor of a long (but reducible) period — still this is a subject that requires an explicit decision by the judge after considering the defendant’s arguments. The judge also should consider the possibility of setting sunset dates for some of the more onerous terms, so that Quinn can regain more control of his own activities without needing a public official’s advance approval, while enough supervision remains to allow intervention should Quinn relapse.

Take Aways

Most notably in this decision, at least in this bloggers opinion, is the call1 for “sunset dates” on the more onerous terms of supervised release. Naturally, the longer a released inmate spends on supervision without incident, the less restrictive and intrusive the terms of release should be (considering the goal of supervision is re-integration back into the community.

Applause goes to the 7th Circuit for hitting this issue head-on and laying out very simple-to-understand guidance for district courts regarding the imposition of federal supervised release or probation.

Ending Supervised Release Early

Of course, there is no need to ever complete a full term of supervision, as seen in the last paragraph of the opinion above. Trouble is, though most people on federal supervision know that ending supervised release early can be done, most don’t know how and won’t pay a lawyer a ton of money to get it done. The cost can outweigh the benefit.

Fortunately, PCR Consultants (that’s us) have been helping people for the last 3 years accomplish this task on their own, at the fraction of the cost of an attorney doing it for you. All that is necessary is to represent yourself on paper and file a request like this to the supervising court.

Learn more by reading our e-book. Start the process of ending your supervision now by contacting us by e-mail or phone (or our contact submission form) today.

  1. Written by Chief Judge Esterbrook for the 7th Circuit Court of Appeals []

Federal Prison Reform and Unusual Allies

Common Sense and Federal Prison Reform

In a piece from Truth-Out entitled “Push to Reform Prison System Brings Unlikely Allies Together”, the unusual and unlikely are no joining forces to push for federal prison reform that has been needed for over two decades. (See Sentencing Reform Act of 1984). Excerpts from the Truth-Out article are below:

Over the past 15 years, the US prison population has more than doubled. There are 2.3 million Americans behind bars – that’s one in 100. About half of the people in prison are serving time for nonviolent offenses, including drug possession. More than 60 percent of US prisoners are black or Hispanic, according to the Pew Center on the States.

With just over 4 percent of the world’s population, the US accounts for a quarter of the planet’s prisoners and has more inmates than the leading 35 European countries combined.

Corrections is now the second-fastest growing spending category for states, behind only Medicaid, costing $50 billion annually and accounting for $1 of every $14 discretionary dollars. California spends approximately $50,000 per prisoner per year, far more than the state spends on students.

The push to reform the prison system has brought unlikely allies together. Earlier this year, the National Association for the Advancement of Colored People joined forces with Republican presidential hopeful Newt Gingrich who is part of a new prison reform initiative called Right on Crime.

In September, Inimai Chettiar, policy counsel at the American Civil Liberties Union wrote about speaking alongside members of Right on Crime and the faith-based Prison Fellowship at the American Bar Association’s initiative to “Save States Money, Reform Criminal Justice and Keep the Public Safe.”

“Never before have so many legislators, governors and advocates from all sides of the aisle come together with a single unifying theme on criminal justice: we need to end our addiction to incarceration,” she writes.

Yet, it’s all too rare to hear about their efforts.

Tim Cavanaugh, managing editor of Reason.com, the web site for the libertarian Reason Magazine, says prison reform should be a major issue for conservatives, yet more often than not, it’s falsely framed as a liberal issue. He notes that Mario Cuomo, the “great liberal governor of New York,” was the pioneer of the three-strikes-and-you’re-out law, and California, the most liberal state in the country, passed a three-strikes law in 1994.

Reason’s July issue was dedicated to prison reform with articles focusing on prosecutorial misconduct on death row, the costs involved in leading the world in locking up human beings and how California prison guards became the country’s most powerful union.

Cavanaugh says one solution would be a ten-year moratorium on new laws at the city, state and federal levels. He would also end the so-called war on drugs. “You can get rid of a huge body of cancerous US legal code just by eliminating the war on drugs. Ending the war on drugs would solve these problems,” he says. “We are the revolutionaries. We are the ones who are trying to tear down the castle walls and there are a lot of folks who want to keep it.”

Why the Resistance to Less Incarceration?

The simple answer to the title of this section is: Money. The prison industry makes billions of dollars every year, and the growing trend is in private prisons. The Justice Policy Institute did a major report on the private prison industry which explains its lobbying and influence on justice policies that keep their prisons full (read: profitable).

The report (available here) is called “Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies.” Here are the basics:

At a time when many policymakers are looking at criminal and juvenile justice reforms that would safely shrink the size of our prison population, the existence of private prison companies creates a countervailing interest in preserving the current approach to criminal justice and increasing the use of incarceration.

While private prison companies may try to present themselves as just meeting existing demand for prison beds and responding to current market conditions, in fact they have worked hard over the past decade to create markets for their product. As revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.

For-profit private prison companies primarily use three strategies to influence policy: lobbying, direct campaign contributions, and building relationships, networks, and associations.

As policymakers and the public are increasingly coming to understand that incarceration is not only breaking the bank, but it’s also not making us safer, will this shrink the influence of private prison companies? Or will they use their growing financial muscle to consolidate and expand into even more areas of the justice system? Much will depend on the extent that people understand the role for-profit private prison companies have already played in raising incarceration rates and harming people and communities, and take steps to ensure that in the future, community safety and well-being, and not profits, drive our justice policies. One thing is certain: in this political game, the private prison industry will look out for their own interests.

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.