Sunday, August 31, 2014

Rick Perry's Indictment Brings Prosecutorial Overreach into Focus

Prosecutorial Misconduct an All Too Common Problem


By Derek Gilna


            If you are like me, you are always a bit resentful that prisoner rights, over-sentencing, and criminal justice reform are not topics of daily discourse in the media.

Finally, however, commentators or every ideological stripe have finally shown the “American Criminal Justice System” for what it is, a gross over-reaction to upheaval in American society over forty years ago.   Non-partisan groups like Pew, and even the DOJ, have proven with cold-hard facts that the most-sentenced groups are the non-white and the poor, disadvantaged, and mentally-ill.  All you have to do is look around you to see the truth of that statement.

            For those reasons, I was struck by an item prominently mentioned in the news recently regarding the legal troubles of one certain Texas governor not known for his warm embrace of prisoner rights. Suddenly, the shoe is on the other foot. That governor faces decades in prison if convicted of the crimes of which he is accused.  Highly ironic, since Texas is a poster child for everything that is wrong with American criminal justice.  (Four out of the six top jurisdictions for federal prosecutions are in Texas. Florida and Oklahoma have one each).

            In the Texas case, the media is exercised by what they see as “prosecutorial abuse,” as if it is a relatively new concept, and confined only to Texas.  Not true.  The sad fact is that prosecutorial “abuse,” “overreach,” or “heavy- handedness,” is present in every federal district in the country.  It is ingrained into the system, and subject to almost no limitations or consequences for its practitioners. Prosecutors routinely use threats to get innocent people to plead guilty to crimes they didn’t commit, and beat down and overawe appointed defense attorneys who often rely upon referrals from the court system to make a living. Statistics also show that federal courts will “stand on their head,” to avoid sanctioning or even criticizing federal prosecutors for these tactics, which leads to some interesting court decisions.

            You have only one solution:  you must do what you can to level the playing field.  You cannot rely on the government to come to the rescue, no matter how compelling their public relations campaign to convince you and your family otherwise.There are many opportunities to gain sentence relief if you have someone in your corner that knows the system, and can advocate for you.  We can’t wait for the American public to wake up to prosecutorial and other abuses.  We have to take responsibility for our own futures.  Perhaps in some way we can do our part to bring the American Justice system back into balance.


Thursday, August 21, 2014

Sentence Relief Requires Expertise

Sentence Relief Legislation Moves Slowly Through Congress

By Derek Gilna 

            While most of the recent publicity has been focused on the significant reforms approved by the United States Sentencing Commission, sentence relief bills continue to move forward in Congress, but at a glacial pace.  One of those bills in the Smarter Sentencing Act, meant to extend the benefits of the Fair Sentencing Act of 2010, and introduced by a bipartisan group including Senator Dick Durbin, a partisan Democrat, and Senator Ted Cruz, a tea-party Republican. No vote on this legislation is currently scheduled.

            This bill, although it would also reduce the length of certain offenders and reduce the federal prison population, will not help everyone.  Like most things done by Congress, this bill is focused on showing that members are still “tough on crime,” but only on certain offenders. Unfortunately,, the exclusions appear to overshadow the relief offerred.  Individuals with higher criminal history points, prior convictions involving the use of physical force or violence, or various firearm, racketeering, and sex offender (as defined in the Adam Walsh Act), get nothing from this bill.

            Relief is clearly targeted to “certain (minor) drug offenses.” Mandatory minimum sentences are all reduced dramatically and retroactivity is extended for certain offenses.  However, what does this mean to the already-incarcerated, whose offense does not fit into these narrow categories of relief?

            The answer is obvious. You can’t rely upon others to do your work for you or look after your welfare better than you can.  Although it may be comforting to some to put their fate in the hands of Congress, or a “kinder-and-gentler” DOJ, or an already-overworked Federal Defenders Program,   decades of experience has shown us that relief only comes from a focused, individualized approach.

Saturday, August 9, 2014

Sentence Relief, Clemency, and Pardons: Is the BOP Ready for Reform?

Will Hopes Raised by Administration’s Commutations and Pardons be Realized?

by Derek Gilna

In December of 2013, President Obama created a wave of excitement in the incarcerated  community when he announced the commutation or pardon of 21 federal
prisoners,bringing his first-term total to 23,  and made clear his intention to change how sentence relief was granted by the United States Justice Department. In early 2014, Attorney General Holder announced an initiative to accumulate thousands of clemency applications from federal prisoners. However, many observers question whether the results of the program will match the benefits promised in the initial press releases.
These laudable developments followed a wave of criticism from prisoner-rights advocates decrying the record-low number of pardons in Obama’s first term in office.  The President issued a record-low number of pardons and commutations in his first four years,, compared to the 30 issued by George W. Bush, the 56 of William Clinton, the 77 of George H.W. Bush, and the 250 of Ronald Reagan in their first terms.
Obama, referring to those he pardoned, said, “If they had been sentenced under..current law, many of them would have already served their time and paid their debt to society.  Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.” The President also noted, “In several cases, the sentencing judges expressed frustration that the law at the time did not allow them to issue punishments that more appropriately fit the crime.”
In an era where almost no government official publicly opposes sentence reform, one would think that pardons would be a way for Presidents and Governors to show compassion while cutting the bloated prison population.  However, despite the recognized fact that prisoner counts are too high, and both Congress and state legislators are looking for ways to reduce their corrections budgets, there has been a notable lack of action on the pardons, commutations, and clemency front. in many jurisdictions.
An example of the minimalist approach to executive compassion is the State of New York, where Governor Cuomo had issued no commutations of sentence by the end of 2013.  It’s not because the issue hasn’t been brought to his attention, according to Anthony Papa, spokesman for the Drug Policy Alliance, whose goal is to reduce sentences for drug offenses.  “Every year, I ask him to use his power of executive clemency.  He has not used any yet,”  Papa said.
Other New York observers feel that Cuomo, a Democrat, fears the “Willie Horton Syndrome,” referring to the individual pardoned by then governor Dukakis in Massachusetts, who then committed a murder, possibly costing Dukakis the Presidency. Jim Murphy, former jail chaplain and Capital Region prison-reform activist, said, “The Democrats have been scared.  They are more vulnerable to the tough-on-crime talk.”
Cuomo’s predecessors in New York, however, have all granted pardons or commutations: Eliot Spitzer, one; David Paterson, three; George Pataki, 32; Mario Cuomo, 37; and Hugh Carey, 155.
Cuomo’s fellow Democratic governor, Jerry Brown of California, in late 2013, issued 127 pardons,mostly for drug crimes.  This followed the 128 pardons that he issued in 2012, and the 21 he issued in 2011.
However, it is executive sentence relief on the federal level that will have the greatest effect on the sentence relief landscape.  With over 220,000 in custody and thousands more in pretrial detention, as well as tens of thousands in immigration detention, the federal government is well-positioned to send a message to the public that compassion is as important to the American justice system as arrest and conviction.  Although recent developments are encouraging, many remain skeptical that the Reforms will be administered in the same fashion as their well-publicized goals, and self-congratulatory press releases.
Studies by not only the non-partisan Pew group, but also the Department of Justice have shown that for recidivism to be reduced, institutional rehabilitation must be as important to the Bureau of Prison’s Mission Statement as the “confinement of individuals pursuant to judicial order,” to paraphrase the message the BOP publicizes at its institutions and on its website. However, success cannot be measured merely by making sure that their prisoners do not escape;  if prisoners are not given sufficient education, counseling, and drug and alcohol treatment to succeed after their release date by the BOP, that institution has failed the American public.
Unfortunately, there is legitimate reason for concern that the federal government in general, and the Bureau of Prisons in particular, severely challenged organizationally by the admittedly daunting task of preparing prisoners who will be granted sentence reductions under the retroactive sentencing guidelines, will not be up to the task.  Expectations have already been raised by the “questionnaire” prisoners have been encouraged to fill out through the Corrlinks system. The fact remains that the BOP, constantly under criticism for mismanagement by Congress and the General Accounting Office, is probably not up to the task. A look at previous BOP attempts at reform is not been encouraging.
The Second Chance Act led prisoners (and the public) to believe that 12 months of halfway house would be extended to releasing prisoners to help them reintegrate into society.  Never happened.  There are too few halfway houses and too few beds, facts the BOP knew before the Act was passed.  Compassionate Release was another highly-publicized program, whose results have been almost nil.  The reason is that the BOP has not trained its personnel in how to accept and process applicants.  Therefore, there is reason for skepticism that the new Clemency Initiative will be any different.  For this and other sentence relief programs to succeed, the BOP must change its mindset to embrace rehabilitation, as well as the training necessary to properly implement President Obama’s salutary attempts at prison reform.

Monday, August 4, 2014

U.S. Sentencing Commission Retroactivity Updates

Sentencing Commission Changes Bring Opportunities

by Derek Gilna

Although the recent retroactivity amendments by the U.S. Sentencing Commission are clearly beneficial to all drug defendants, certain questions have arisen that should be clarified.  As with the Crack Law amendments, the extent of the relief granted will depend upon judicial interpretation before its full impact can be assessed.
However, unlike the Crack Law changes, there is no arbitrary cutoff date for relief which left many without sentence reductions. Additionally, the two-level reduction is across the board, for all drug crimes that did not involve crimes of violence.  Mere possession of a firearm will not disqualify a petitioner unless it was immediately present at the crime scene. Also, for the first time, the Sentencing Commission has a target number of individuals that it would like to see released:  46,000, dwarfing the Crack Law release figures.
Petitions can be filed at any time, but no order for relief can be carried out until after November, 2014, for November, 2015 release.  That tells me that the BOP is not ready to process the one-quarter of its prisoners who are going to be released.  If the program is going to be successful, immediate changes to release processing procedures will have to be made by institution case managers and halfway houses.  The US Probation Department, hit by layoffs, furloughing, and attrition of staff, will also see their caseloads increase dramatically as more prisoners are released.
The wild card in the whole process is the “Public Safety” issue,  which must be considered by the court during resentencing. This is one area where astute representation will pay big dividends, because this is the subjective portion of the process. Release will NOT be automatic, so it will be important to have an advocate who can recommend the best course of action for your individual circumstances.

Over $100,000 Paid by NY Cops for Civil Rights Settlement

NY Police Settle Excessive-Force “Replica Gun”  Wrongful Arrests and Detentions

by Derek Gilna

Guillermo Zavalas, his wife Ileana, and two other families in the same apartment building have settled their federal civil rights complaint under 42 U.S.C. 1983 against the City of NY, the NY City Police Department, and various individual officers, according to their attorneys, Jeffrey A. Rothman and Ronald L. Kuby.
The plaintiffs were asleep in their apartments when New York City police broke down their apartment doors, and accosted and arrested members of the three families, most of whom were in bedclothes or their underwear.  When the  heavily-armed officers screamed their demands to be shown any guns on the premises, they were shown replica, non-operable collectible copies of weapons. Despite the fact that the replicas were clearly not firearms, the Zavalas and the other plaintiffs,  as alleged in their lawsuit, were roughly handled by the arresting officers, tightly handcuffed, and their homes ransacked.  Taken to jail, some of the plaintiffs were unable to make bail, and further alleged that police authorities delayed revealing that the confiscated items were inoperable collectibles, resulting in their being in police custody for an inordinate amount of time.
The complaint alleged not only violations of plaintiffs’ federal constitutional rights, but also violation of various NY constitutional protections, as well as false arrest and trespassing. Plaintiffs settled their lawsuit for varying amounts, depending upon the damages allegedly suffered, for a total of $117,000.
Mr.Zavalas received $17,000,and his wife received $7,000. Plaintiff Angel Zavala got $30,000, and Gregory and TIffany Negron and their child received $7,000 each. Elijah Irlanda and Cynthia Irlanda received $35,000 and $7,000, respectively. As part of the settlement, the defendants did not admit any wrongdoing.