Monday, June 12, 2017

Comey Hearings Show the Public that Federal Government Only Serves Itself, Not Them

Now the Public Has a Clearer Picture of How the Federal Government Only Serves Itself


 No new opinions issued by the U.S. Supreme Court this morning, but there should be several in the next two weeks.  However, was anyone even remotely capable of turning away from the over-hyped Congressional testimony this past week of the former "Top Law Enforcement Officer of the United States?" Turns out that he was just another "CI," who leaked information (or made stuff up) in hopes of improving his circumstances (or reducing his sentence). 

Although the media circus was allegedly about the President and his administration, it was the disingenuous nature of the American justice system that was actually publicly "unmasked."  Add this development to the general public's growing unease with the narrative that "we're from the government, and we're here to help you."
 
Make no mistake, the DOJ and BOP are an integral part of the "Deep State." If you believe in the maxim, "the enemy of my enemy is my friend," the current administration's disruptive attack on the federal  bureaucracy is cause for guarded optimism. It will be interesting to see where this goes.
 The other consequence of this turmoil in Washington is the new-found assertiveness of the federal judiciary, who have been looking for ways to assert their independence of the DOJ and the executive branch. In this new atmosphere, there is hope that the Chevron case, which granted broad judicial deference to federal agency (i.e., BOP) rulemaking powers, will finally be revisited.  This would be huge, as lawsuits on matters such as substandard medical care and compassionate release would not face the current high threshold for success.

In the circuits,  there were some interesting cases the past week.  In U.S. v. Zuniga, the defendant overcame a Beckles defense to his sentence, successfully arguing "that his prior Texas conviction for delivery of a controlled substance cannot serve as a predicate offense for purposes of Section 4.B1.1's enhancement," and reversing and remanding his conviction, following Hinkle, Decamps and Mathis. (14-11302, June 5, 2017).

In a follow-up to the 7th Circuit stash-house sting cases, the 7th rejected a 2255 habeas alleging inadequate representation of counsel where defense counsel failed to raise an entrapment defense. Unlike the case of his co-defendant Mayfield, 771 F.3d at 424, n. 3, Nathan Ward lost his direct appeal, and was left with only the habeas to contest his guilt. Ward v. U.S, 15-2599, June 5, 2017.

Monday, June 5, 2017

Supreme Court Updates




Supreme Court Continues to Extend "Vagueness" Doctrine; Appellate Updates

 

            The U.S. Supreme Court this morning again extended the breadth of Johnson vagueness doctrine by extending it to three cases where defendants received career-offender status for what amounted to consensual sexual relations with barely-underage minors. The original 2017 SC holding, Esquival-Quintana v. Sessions, which rejected the application of such incidents involving minors 16 and over, was a convincing 8-0 decision. Three cases from the Fifth and Sixth Circuits, were summarily vacated and remanded for resentencing.

            We are also following and considering the application of an interesting case out of Oklahoma, U.S. v Jeffrey Dan Williams, 97cr171,brought to our attention by one of our readers. In this case, compelling new evidence casting doubt upon the veracity of law enforcement and CI testimony against Williams brought about the granting of a second-successive 2255. Williams, who did not dispute his guilt in a drug case he said involved 37 grams but always contested the amplification of his drug quantity that resulted in a 35-year sentence, argued that U.S. v. Blackwell, 127 F.3d 947, and its progeny applied to redress unfairly obtained indictments and guilty, resulting fundamental miscarriages of justice that amounted to fraud upon the court. We are currently reviewing several of our cases to apply the reasoning of this case.

            In his decision vacating the judgment and sentence and dismissing the indictments, Judge James H. Payne noted that "the court finds it has the inherent power and jurisdiction to grant relief." and that the fraud upon the court harmed the "integrity of the judicial process."

            This follows on the heels of the scandal in Kansas City, Kansas federal court, involving the  admitted recording of confidential communications between unconvicted defendants and their attorneys, that has now resulted in the resignation (or dismissal) of two assistant federal prosecutors caught up in the scheme.

            In the circuits, the Ninth Circuit ruled that there is no right to file a 2255 alleging ineffective assistance of counsel in a Section 3582(c)(2) sentence reduction matter, since the Supreme Court ruled in the Dillon case that such proceedings did not constitute a sentence reduction. Sherrod v. U.S., 16-72178, (9th Cir., May 24, 2017).
 

Monday, February 13, 2017

Johnson Case Doctrine Extended to Fifth Circuit Texas Case of US v Tanksley


Fifth Circuit Tanksley Decision Another Johnson-Based Reversal of Texas Drug Offense

 

            Appellant Dantana Tanksley pled guilty to felony drug possession, and at sentence was advised that his previous Texas drug conviction qualified as a "controlled substance offense" under US Sentencing Commissions Guidelines. Previous Texas law had held that his prior qualified under the guidelines.

            However, Mathis v. US changed the law, and the court held that the underlying Texas drug delivery statute, 481.112(a) was divisible., defining two crimes: possession with intent to deliver (which qualified for the enhancement under the Guidelines, ), and mere delivery, which did not.  Mathis held that this approach was proper only when the statute list element in the alternative. "Mathis is 'more than merely illuminating with respect to the case before us,' it unequivocally resolves the question in favor of Tanksley,'" the Fifth Circuit said.

            The case also rejected the government's fall-back defense of "harmless error," ruling that nothing the district court said substantiated that defense, and the Fifth Circuit refused to bail out the government. The court reversed the sentence and remanded for resentencing.

            This particular case is yet another in the line of Johnson-related cases that have granted prisoner relief.
           

 

 

Monday, January 16, 2017

Obama Should be Celebrated for Criminal Justice Progress He Achieved


On Martin Luther King Day, Let Us Remember Obama's Accomplishments

 

            As the United States prepares to inaugurate a new President, it is time to look back at the last eight years and consider what they have meant to all federal prisoners.  Although we have not been shy in this space to express our disappointment in the President on the subject of broad sentence relief, we must not lose sight of his accomplishments that laid the groundwork for more progress in that area.

            First, although Obama will be remembered as the first African-American President, you would be hard-pressed to point to any one instance where he favored one segment of the population over another on the basis of race. He was elected by the people, and whether you supported him or not, that is a fact.

            Second, when you eliminate the media "noise" surrounding him, whatever your politics, you must applaud his basic decency as a husband, a father, and as a man. Whether you agree with his politics or not, his personal life has been completely free of scandal or innuendo, and he has been an excellent role model to all Americans whatever their race  and not just because of his unique background.

            Thirdly, Obama put all prisoners "on the map" of responsible public discussion. He was the first President in memory to visit a federal prison, and the optics of that visit will be helpful for years to come.  The BOP is the most publicity-adverse agency in the federal government, and its archaic management style only can survive in the absence of media attention to its practices. Obama blew that up, and there is no going back.

            Fourthly, one can not overstate the impact that over 1000 commutations and pardons had on public consciousness of the plight of prisoners, and every announcement of more executive mercy was more positive publicity for the cause of even more sentence relief. 

            Finally, it may be hard to understand when you are enduring the many daily  indignities of incarceration, but the general public IS aware of your situation, and is open to change, and is tired of footing the bill for excessive sentences.  People who voted for both Clinton and Trump think that the federal government does a poor job of managing ALL of its agencies, including the DOJ and the BOP. When the only people opposing sentence relief are the labor unions for assistant U.S. Attorneys, and prison guards, we see an opportunity for a serious disruption of the old way of doing business in the American "Justice" system."

           

Monday, January 2, 2017

Sentencing Reform's Success in 2017 May Depend Upon Faith-Based Groups


Faith-Based Coalitions Prepare to Weigh in on Sentence Reform in New Year

 

            After the past year, when the old political order was swept aside, traditional media discredited, and government institutions under renewed scrutiny by a skeptical electorate, we are not surprised that many organizations who failed to predict all of these upheavals are once again missing the newest trend in 2017 sentence relief hiding in plain sight. Many faith-based religious organizations, fresh from providing difference-making grass-roots support to the winning presidential candidate,  are preparing to take the lead in pressuring Congress to take action to reduce federal incarceration and recidivism.

            This process has already begun on the state level, as state officials come to realize that for-profit prisons and reentry facilities like halfway houses are just aren't getting the job done. Expect the new administration to strongly consider measures that get religious communities closely involved in the criminal justice system.

            The groundwork has already been set. The new administration has big plans for reducing the footprint of the federal agencies, none of which they are going to like. Put into an office by voters tired of the old, wasteful way of doing the people's business, they owe absolutely nothing to the federal bureaucracies,  and there are no more opaque or inefficient agencies than the BOP and the DOJ.

            .The harsh reality is that the previous administration, lauded by the media for its many  eloquent words supporting the concept of sentence relief, failed to take advantage of the fact that a majority of Congressmen and senators supported sentence relief. Yet, no sentence relief bills were even called for a vote.  Those votes are still there, and ready for executive leadership on measures that have broad bipartisan support, and support of an increasing number of religious organizations.
 
           In 2017, there will be an opportunity for faith-based groups of all denominations to
provide the leadership, initiative, and moral force to do their part to make sentence reform a reality, and thereafter accept the responsibility to  do whatever is necessary to make it successful.
 
 
 
 

Thursday, December 1, 2016

Beckles Argument Creats New Hope for Federal Relief


Monday's Supreme Court Argument on Beckles Completed; Early 2017 Decision Likely

 

            The U.S. Supreme Court (SC) held its long-awaited argument in Beckles v. US this past Monday, and the results were positive. Beckles was questioning the constitutionality of the residual clause in the career offender section 4B1.2 of the guidelines after the Johnson case found an identically worded residual clause in the ACCA statute unconstitutionally vague.

             Both the petitioner and government attorneys agreed that a favorable ruling on the guidelines vagueness issue would retroactive on collateral review. Counsel for Beckles argued that the guidelines language at issue was virtually identical to that of the ACCA residual clause, which the Johnson case  found vague and unenforceable, and implied that it was up to the SC to interpret the language in a consistent fashion.

            Defense counsel then concentrated on the retroactivity argument (essential to prisoners seeking relief), citing Welch v. U.S., Montgomery v. Louisiana, and Miller v. Alabama, which all  were found to be retroactive. The government's attorney then argued that if the court found guideline vagueness in this case, that it was merely procedural , and hence, not retroactive, but this argument was met with some skepticism by some of the justices, who were concerned that a finding on the issue "vagueness" might put all of the Guidelines rules in jeopardy. The government then argued that since it conceded the issue of retroactivity, that the vagueness issue could be put aside for now.

            The government's argument was: "no circuit has actually ruled on retroactivity...(but) have ruled on vagueness.  All except ...the Eleventh have either said vagueness applies to the Guidelines and the residual clause falls, (or) they have said we accept the government's concession that vagueness applies."

            The government conceded that many district courts and appellate courts have already indicated their view on the subject and have already started granting relief to petitioners, essentially pushing the SC in the direction of retroactivity in future cases concerning the 4B1.2 vagueness issue.       

            The court-appointed amicus counsel argued that since the guidelines system of discretionary sentencing, despite its argument, was preferable, but he drew few questions, an indication that his argument was not well received by the justices.
            In summary, the retroactivity issue looks to be favorably decided, given the government's concession, and the justices appear to think that it is substantive rather than just procedural. It appears from the questions that Beckles will be a favorable decision, hopefully by an outright majority rather than a plurality, and may well open the door a little wider for even more vagueness challenges on Guidelines provisions that began with the Booker holding that the Guidelines were only advisory.

Friday, November 11, 2016

Trump Presidency Should Not Slow Pace of Justice Reform


Trump Presidency Does Not Mean End of Justice Reform; Expect More Commutations
 
by Derek Gilna 

        In response to many requests, we are writing today about what prisoners should expect from a Trump administration. Fortunately for prisoners on both the state and federal level, this change, by itself, is just one factor that will impact prisoners. Sentence relief was not a partisan interest in this election, and although Democrats like Bernie Sanders talked a lot more about the issue, it was more in the context of increasing social justice, attacking Wall Street, and the like. No major player in the Trump campaign opposed sentence relief or the bills currently before Congress.

         But, other people say, Trump was the “law and order” candidate. However, Clinton was not AGAINST law and order, just in favor of Black Lives Matter, appealing more to her African-American voting base, who were concerned about excessive police violence. However, Trump also tweeted his concern about police violence.  This was NOT a major issue in the campaign, so let’s not get sidetracked.

         Congressional votes on justice reform were delayed because legislators didn’t want to “stir the pot” before the election, but the election is now over.  It is likely that there will now be a major push to call  the sentence relief legislation for a vote in the “lame duck” session. Both the Republicans and Democrats in leadership positions are in favor of the major bills. Now, with the Republicans controlling the Presidency (as of January 20) and both houses of Congress, they have no excuse for delaying.   We will help hold their feet to the fire (more on that in the future).

         Another positive factor is that Trump campaigned on assisting the common man, and reached out to the Black and Hispanic communities;  he got 2% more votes than Romney did in 2012. Dr. Ben Carson will have a major position in this administration. Also remember that all DOJ statistics show that decreasing incarceration has NOT increased crime, and politicians are tired of prioritizing prison expenses. The fewer the prisoners, the less expense. Our guess is that as a businessman, Trump would be receptive to the economic savings and “smaller government” arguments of a smaller criminal justice bureaucracy.

         We are hopeful that President Obama, before he leaves office, will accelerate the commutation process.  It is an understatement to say that we are profoundly disappointed about his lack of leadership of pushing sentence reform, especially when he had Democratic control of Congress in 2008, but wouldn’t object to a few thousand more over-sentenced prisoners being released.

        Finally, there is little public support for the lack of accountability shown by federal agencies, like the BOP, who hate publicity and public attention to its many shortcomings.  Many faith-based groups have taken up the cause, and is there any question they could do a better job of rehabilitation than the BOP has done, for less money? Trump got 81% of the Evangelical vote, and should be receptive to reform and shrinking the BOP. Forcing the BOP to follow its own Compassionate Release policy would be a good place to start.