Federal Judges Need Empowerment

Why the Circuits and U.S. Supreme Court Need to Delegate More Effectively

In a recent ninth circuit decision, judge Diarmuid F. O’Scannlain wrote a 10-page concurring opinion on a moot finding. In this opinion, O’Scannlain lectured the judge from the lower court (Hon. Judge Phillips: Riverside, CA) and the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s 2003 decision in Lawrence v. Texas. The per curiam opinion, including O’Scannlain’s opinion is available here.

There is a problem here. The opinion of the Circuit found the case moot, but that didn’t seem to be enough for one of its judges. The issue there was a now-famous lower court decision by Judge Phillips which called the Congressionally enacted “Don’t Ask, Don’t Tell” policy unconstitutional. Because this policy has now been repealed by Congress, the case is moot.

This, however, didn’t stop O’Scannlain from blasting the lower court’s decision. From SCOTUS Blog:

“Accusing a federal trial judge of misusing her authority when she struck down the military’s ban on gays and lesbians in the service, a federal appeals court judge on Thursday lectured the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s famous ruling eight years ago in Lawrence v. Texas. Circuit Judge Diarmuid F. O’Scannlain did so as the Ninth Circuit Court threw out that lower court judge’s ruling interpreting Lawrence broadly. The three-judge panel found that decision by District Judge Virginia A. Philllips to be moot, because the so-called “don’t ask/don’t tell” policy at issue has now been repealed by Congress.”

The Core Problem

The problem here is not the constitutional application of a now-dead policy. It has much less to do with the rights of homosexuals as it does the rights of the rest of the American population. There is a culture within the judiciary that seems to neuter federal judges in District courts from making many landmark decisions.

Most huge decisions are, understandably, made by the Supreme Court. This occurs when issues arise of Circuit splits, constitutional interpretation questions, and other case-specific reasons the United States Supreme Court (SCOTUS) uses for granting Cert. The deferment to Supreme Court authority is a necessary part of the check-and-balance process of American law.

That said, federal judges at the District level appear afraid to rule anew on any major issue for the exact reason here. If a judge sticks his or her neck out on an issue they believe is blatantly unconstitutional, they risk being publicly admonished by their Circuit brethren for over-stepping their bounds.

This Sounds Familiar

The military had this problem in Vietnam. Specific targets had to be affirmed by high-ranking generals and sometimes even the President before being hit. Sometimes this decision was made, for or against, whilst a bombing pilot was en-route to the target.

The idea of delegating this authority to lower-ranking commanders came about because of the absolute inefficiency of these missions, and the “war” as a whole.

Large issues remain undecided out there today because SCOTUS won’t hear or re-hear cases. District courts often seem afraid to blaze new ground. Making big decisions needs to be less scary for lower courts.

Case in Point

To illustrate this problem, one need to look no further than SORNA laws. The Sex Offender Registration and Notification Act ((Sex Offender Registration and Notification Act)) (part of the Adam Walsh Act of 2006 ((The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act” or “Act”) )) mandated States to comply with federal minimum guidelines for implementing Sex Offender Registries. Sounds like a good idea.

Problems arise, however, when the language of the Act makes the laws they spur unconstitutional. SCOTUS ruled in Smith v. Doe, 538 U.S. 84, that SORNA laws were civil regulatory schemes and not punitive in nature. Thus, SORNA laws are not unconstitutional violations of the ex post facto clause in the U.S. Constitution. ((Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause.))

Justice Souter, in a concurring opinion, commented that his tip toward constitutionality (ie. the laws were regulatory and not punitive in nature) of the statute from Alaska was premised on the presumption of constitutionality afforded to the State.

However, Alaska answered by finding that same law unconstitutional in its own Supreme Court. ((Alaska Supreme Court Declares Sex Offender Registration Law Unconstitutional)) This would, inherently, shift SCOTUS’s opinion (at least the opinion of Justice Souter) the other direction.

Unfortunately, Smith v. Doe has opened the door for 8 years of State laws that continue to get harsher and more punitive in nature because of the carte blanche perceived from this decision. Whats worse, SCOTUS has yet to grant Cert for any new case that questions the constitutionality of newer, harsher laws made for SORNA-compliance.

Empower Federal Judges in the Districts

If federal judges at the district level felt less constrained to make rulings on constitutional issues, matters like the example above would have resolutions more swiftly. The unintended effect of empowering District judges would be an increase of conflicting opinions that need to be heard by the Circuits. However, that seems to be the purpose of the Circuits in the first place.

Whats best for the American people may not be what is easiest to process by the courts. Empowering District judges to make tough decisions without fear of Circuit reprisal might create a large case load for the Circuits, but would greatly change the dynamic and speed at which facially unconstitutional laws are able to be tossed out.


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.

Will Congress Make Crack Law Retroactive?

Crack Cocaine Sentence Reductions – Retroactivity

It is fairly common knowledge at this point that the United States Sentencing Commission has made their Sentencing Guideline Manual reductions for crack cocaine sentences retroactive. However, this policy has raised quite a few questions regarding how it works and who it helps. This article is meant to clear up many of the questions that visitors to this site, and families of incarcerated loved-ones in general, have regarding the new policy.

The Basics

In 2010 Congress passed the Fair Sentencing Act of 2010, which raised the triggering quantities of mandatory minimum sentences for crack cocaine offenses. The Sentencing Commission then lowered the sentence ranges for all such charges. On June 30, 2011, the Sentencing Commission made their reductions retroactive to all inmates in the federal Bureau of Prisons.

This is a good thing. Many inmates will qualify for reductions in their sentences because those sentences were “Unfair”. The new policy, however, doesn’t have the effect of a new Congressional law that would make FSA 2010 retroactive.

What’s the difference?

Policy can only change the guideline range, so those who were sentenced to mandatory minimums under the old law cannot get a sentence reduction (with one exception). The only way these inmates can get relief is if Congress specifically makes FSA 2010 retroactive.

So, will Congress make the new crack cocaine law retroactive? Currently there seems to be no movement on the side of Congress on FSA 2010 at all. It has the opportunity to block the Sentencing Commission’s policy with a blocking Bill before the enactment date of November 1, 2011. However, so far nothing has been presented.

It (Congress), can also pass a new law making all these changes retroactive to every inmate sentenced for applicable crack cocaine crimes. Again, there is no movement on this front either. The good folks at FAMM even made a page with lots of great information and up-to-date news on these guidelines changes.

Crime and Corruption in Law Enforcement

Obama Administration Investigations

At a record-setting pace, the Department of Justice is currently conducting 17 separate investigations to determine whether law enforcement officers are guilty of brutality or discrimination against minorities. This, as reported by the Washington Post, is the highest number of such investigations at one time in American history.

The excerpt below highlights a few of the stories behind investigations and contains a dramatic quote claiming one law enforcement agency shows a “staggering level of crime and corruption” within its ranks.

In recent months, the Justice Department has begun inquiries into major city police departments like Portland, Or., where officers shot several people who had mental health issues, and Seattle, where police were accused of gunning down a homeless Native American woodcarver. The department issued a scathing report this month accusing Puerto Rico police of a “staggering level of crime and corruption.”

And later. . .

Thomas E. Perez, assistant attorney general for civil rights, said the investigations into local police are “really a cornerstone of our work.” He was speaking to reporters about the report on Puerto Rico, which accused officers of widespread brutality, unconstitutional arrests and targeting people of Dominican descent.

Much can be said, and many personal accounts float around all over the country of law enforcement bias against minorities. These investigations are being conducted amidst events like the recent one in Texas where the United States Supreme Court halted the execution of Duane Buck who claims that racial motives during trial/sentencing led to his death sentence.

Alabama Inmates File Federal Lawsuit

Overcrowding and Poor Conditions

Jefferson County, AL – According to a story from The Birmingham News, lawyers for inmates John Mason IV and Ishmael Gregory filed a federal lawsuit in Birmingham, Alabama alleging inhumane conditions in the county jails in Jefferson County. The basis for the lawsuit is the standard “Deliberate indifference of government officials” ((Alabama’s 11th Circuit Precedent for the deliberate indifference standard is found in Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996)))to protect and provide proper care for inmates, as well as an alleged violation of Religious Land Use and Institutionalized Persons Act (RLUIPA).

What is more noteworthy about this case is the conditions that are claimed to exist in these Jefferson County jails. Here is a short list of the conditions alleged in the lawsuit:

  • Six to eight inmates are in cells designed for two, and three to four inmates are sleeping on the concrete floor, often without mattresses;
  • Only two meals are served a day, “and these meals would shame any standard of decency.”;
  • The sheriff has discontinued any jail visitors or clergy, though attorneys are allowed;
  • There is no effective segregation of the inmate population as to varying levels of offenses;
  • The mental health of inmates is ignored; ((This same issue was part of what caused the United States Supreme Court to rule that California’s prison conditions were unconstitutionally overcrowded))
  • The physical health of inmates “is at best abysmal.”;
  • The sheriff has effectively only allowed the practice of Christianity in the jail – denying inmates access to “virtually all outside reading material except letters and the Christian Bible.”

The Reason for this Overcrowding

The problems in these jails doesn’t seem to be as much a part of rising crime rates as it does falling budgets. Sheriff Mike Hale closed his county jail in Bessemer in 2009 after the Councy Commission cut his budget by $10 million. The lawsuit claims that the Birmingham jail is designed for 600 inmates but currently has 1,700.

Budgets get cut and jails get closed. However, no apparent attempt was made to find suitable inmates for early release to alleviate the obvious problem of overcrowding that would naturally flow from a jail’s closing such as this.

According to Randy Christian, chief deputy of the Jefferson County Sheriff’s Office “Christian said the jail was built to hold a maximum of 900 inmates but averages 1,200.” Christian is also on record saying that “[a]s of today, we are in a very poor position to defend such a suit. Things at the jail are going to have to be rectified or Jefferson County is going to be in for a long day in court.”

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; ((Interpolated from 1.8% above range plus 54.3% below (56.1% subtracted from 100%))
  • 61% of all below-guidelines sentences were initiated by the prosecuting US Attorneys; ((26.8% of all sentences were government sponsored, below guidelines sentences where a vast majority were §5K1.1 or §5K3.1 motions))

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%; ((Trafficking, Communication Facility, Simple Possession))
  • 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


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. ((August 3, 2010)) 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);


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? ((§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.))
    • 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)


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;


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


How NOT to Travel to a Federal Halfway House

Rapper T.I. was turned away from his federal halfway house and sent to serve the remainder of his prison sentence (for violating his Supervised Release) in a holding facility in Atlanta. The NY Times posted this amusing story about the events. Here’s an excerpt:

The rap artist T.I. was sent back to prison Thursday after he showed up at a halfway house in Atlanta in a luxury bus with an entourage. He was sent to a federal prison in downtown Atlanta to continue serving his sentence on a parole violation a day after it was announced he had a book deal with HarperCollins and a television reality show lined up with VH1.

Federal prison authorities did not say why they had decided that T.I., whose real name is Clifford J. Harris Jr., should remain in a cell. His lawyer, Steven H. Sadow, said they had taken issue with “T.I.’s method of transportation” from Forrest City, a low-security prison in Arkansas, to the Dismas House in Atlanta.

“We don’t comment on specific inmate behaviors,” said Chris Burke, a spokesman for the Bureau of Prisons. He said T.I., who is 30 and a native of Atlanta, would be released Sept. 29.

In 2009 T.I. was convicted of trying to buy unregistered guns and silencers from undercover federal agents and served about seven months in prison before being released on probation. He was arrested again in September 2010 in Los Angeles on drug charges after the authorities said he had been found with four ecstasy pills, and he received an 11-month sentence from a judge for violating his probation.

He was all set to spend the last month of that sentence at the halfway house, and posted a joyous note on Twitter as he was released Wednesday morning: “The storm is over & da sun back out.”

VH1 announced the same day that it would have television cameras follow him after he is released for a reality television show to be broadcast in December. MTV did a similar show on him in 2009 called “T.I.’s Road to Redemption.” He also has a novel called “Power & Beauty,” co-written with David Ritz, coming out. It tells of two childhood friends caught up in violence on the streets of Atlanta….

After he was released from prison in 2009 he spoke frequently to schoolchildren about the dangers of drugs and gangs as part of more than 1,000 hours of community service he was required to perform. A federal judge declared that experiment in rehabilitation had failed when the authorities in Los Angeles discovered that he was carrying ecstasy.