Sentencing Reform in Trouble? – LISA Newsletter for Week of February 15, 2016


Vol. 2, No. 7

This week:

Death of Justice Antonin Scalia

Reading the Fine Print

Branded: International Megan’s Law Signed By Obama

If It’s Quacking …

It Means What It Says

The Week’s Best …

Keep Up On Current Events

Sriracha Is Losing Its ‘Hot’ – Sentencing Reform In Trouble On Capitol Hill



scalia160215The passing of Associate Justice of the Supreme Court Antonin Scalia last Saturday will undoubtedly throw the politics of the Supreme Court into chaos, as Democrats clamor for the appointment of a ninth (and presumably political liberal justice immediately, while Republicans drag their feet so that the next president may appoint a justice who is presumably more politically conservative.

“Nino” Scalia was a brilliant legal mind, but equally important, he was a funny, insightful and sharp-penned writer.  It is fair to predict that his biting dissent in last year’s gay marriage decision will someday be the lodestone for jurists trying to rein in the constitutional Pandora’s Box that the decision opened.

For those interested in criminal justice, it would be tempting to fall for the shorthand analysis that losing a strong conservative jurist would be good for pro-defendant criminal law decisions.  Life is more complicated than that.  Justice Scalia supported the abolition of mandatory Guidelines in United States v. Booker, but dissented over parts of the opinion that he thought muddled up the standard for appellate review.  He dissented in Alleyne v. United Statesbut was the author of the decision invalidating the Armed Career Criminal Act “residual clause” for vagueness in Johnson v. United States.  

Justice Scalia’s position on criminal law issues could not be predicted, because his approach was driven more by legal interpretation than political predisposition.  In his gay marriage dissent, Justice Scalia argued that “[t]he world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.”  That was his unwavering approach.

The loss of his contributions to Supreme Court jurisprudence weakens the high Court.



fineprint160215Eric Solano was charged with drug trafficking, so he did what over nine out of 10 defendants do: he made a deal. The plea agreement included a paragraph waiving his right to appeal the conviction or sentence.

What’s a little fine print, anyway? Eric soon found out. After he was sentenced, he told his lawyer to file a notice of appeal. His lawyer didn’t bother, so Eric filed a post-conviction motion under 28 U.S.C. § 2255, complaining that his lawyer was ineffective for not following his directions.

Waivers160215In most circuits, Eric’s motion would be a slam-dunk. But even though it admitted that seven other circuits had reached the opposite conclusion, the 7th Circuit stuffed Eric.  “Solano waived any right to appeal his sentence in his plea agreement, and thus may not bring an ineffective assistance of counsel claim for his attorney’s failure to file an appeal, even one he explicitly requested,” the Court of Appeals said. “Once a defendant has knowingly and voluntarily waived his right to appeal both in a plea agreement and in court under Rule 11(b), the Sixth Amendment does not require an attorney to disregard the waiver by complying with the defendant’s request to file an appeal.”

It’s always important to read the fine print.

United States v. Solano, Case No. 15-1290 (7th Cir. Feb. 5, 2016)


The good news is that after months of hype about the bipartisan consensus to reform American criminal justice, President Obama finally signed a justice reform bill last week. The bad news is that instead of making the system fairer, the new law makes it more vindictive and petty. Specifically, the International Megan’s Law requires people who have been convicted of sex crimes against minors to carry special passports in which their status as registered sex offenders is marked with conspicuous identifying labels.

brand160215The goal is to prevent “sex tourism” by making it harder for people to “hop on planes and go to places for a week or two and abuse little children,” according to the bill’s sponsor. That sounds like a good idea — a wise precaution to prevent perverts from victimizing kids. But like the domestic sex offender registry, the law is premised on a profound misunderstanding of how sex crimes usually happen. Current data from the DOJ indicates that the vast majority of sex abuse victims are attacked not by strangers, but by family members and other acquaintances.

A lawsuit was filed in Federal court in San Francisco last week by four “John Does,” seeking to overturn the law. The suit complains that “for the first time in the history of this nation, the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship: their United States passport.”

Critics of the law point out that if sex offenders can be identified with a scarlet letter on their passport, there’s no telling who will be next.

LISAStatHeader2small IF IT’S QUACKING …

Some people get pretty creative with post-conviction pleadings. Certainly, there is no shortage of law library schemes involving the UCC or admiralty, or declarations of sovereign citizenry and the like. But even when a prisoner tries to color within the lines, he may find out that regardless of what he says a pleading is, the court may decide it’s something else.

Steve Johnson filed a motion with his court after a prior Sec. 2255 motion was denied. He called it an “Independent Action in Equity, Pursuant to the District Courts Traditional Equitable Authority to Prevent a Miscarriage of Justice.” The District Court called a second and successive 2255 motion, and threw it out. Johnson, who apparently is a hyperactive filer, appealed.

DuckB160215Last week, the 5th Circuit refused to hear the appeal. It said that “contrary to Johnson’s belief, the label he placed on his pleading was not dispositive. Because Johnson raised a claim grounded in an ‘error[] that occurred at or prior to the sentencing,’ the district court did not err by concluding that his suit arose under § 2255.” For good measure, the Court fined Johnson $100 because he had “ignored this court’s warning against filing frivolous or repetitive filings.” It admonished him “that any future frivolous, repetitive, or otherwise abusive filings will subject him to additional and progressively more severe sanctions.”

In the world of post-conviction motions, if it walks like a 2255 and quacks like a 2255, calling it something else won’t fool anyone.

United States v. Johnson, Case No. 15-40402 (5th Cir. Feb. 5, 2016)


Best Headline:Judge Slams Prosecutor For Misconduct, Prosecutor Gets Promoted,” Orange County, California Weekly, Feb. 10, 2016

misc160215Best Quote: “The district judge said that [the officers’] inaction had not “denied Plaintiff the minimal civilized measure of life’s necessities.” We think that civilization requires more in a life and death situation, and are left to wonder what the judge thinks the minimum level of care is to which a prisoner who is suffering a heart attack is entitled.

Mathison v. Moats, Case No. 14-3549 (7th Cir. Feb. 8, 2016)

Best Admission: “Among my many responsibilities as attorney general of the United States was to do everything in my power to ensure that justice remains blind … I support tough justice, but to be justice at all, only the guilty must be punished. My experience and growing data on exonerations reveal a troubling picture of American justice today, one that requires action.”

Former Attorney General Alberto Gonzalez, “Justice System Wrongs Too Many,USA Today, Feb. 10, 2016



Crack entrepreneur Sylvan Abney was due to be sentenced after the Fair Sentencing Act of 2010 – a law that lowered mandatory minimums for cocaine base offenses – was passed by Congress, but a few days before it reached Pres. Obama’s desk.  If Sylvan’s defense attorney had asked for a continuance for just a few weeks more, the FSA would have been law, and Sylvan would have probably been looking at a lower sentence. But counsel did not seek delay, and Sylvan got hammered.

events160215Last week, the District of Columbia Circuit held Sylvan’s attorney was ineffective. Noting that defense counsel all over the country were busy delaying sentencings until the FSA was signed, and noting that it was “reasonably probable” that courts would rule the FSA applied to people convicted before the law was signed but not sentenced until afterwards, the Court of Appeals found that Sylvan’s lawyer has screwed up, and that Sylvan was prejudiced.

The case is interesting for the suggestion that effective assistance of counsel requires lawyers to be aware of more than just what’s going on in the courtroom. They had better be reading the papers, too.

United States v. Abney, Case No. 14-3074 (D.C. Cir. Feb. 5, 2016)


sriracha160215Advocates of the Sentencing Reform and Corrections Act of 2015, referred to on Capitol Hill as Sriracha, felt a growing sense last week that Congress is unlikely to pass anything this year worthy of being called reform. Some are already muttering about chances being better in 2017.

Reforms that had some momentum a few months ago have run into fierce opposition from law-and-order hawks such as Sen. Tom Cotton, R-Arkansas – who credited mandatory minimum sentences for the 25-year decline in violent crime in a speech on the Senate floor last Tuesday – and Sen. Ted Cruz (R-Texas). Cruz was a supporter of sentencing reform only two years ago, but has now reinvented himself as what The Marshall Project calls “the meanest man” in the presidential race. “We know to an absolute certainty that an unfortunately high percentage of those offenders will go and commit subsequent crimes,” Cruz is saying these days. “And every one of us who votes to release violent criminals from prison prior to the expiration of their sentence can fully expect to be held accountable by our constituents.”  Many lawmakers facing reelection this year can imagine hearing the same alarmist rhetoric coming from the lips (and campaign ads) of their opponents.

Major reform still has its advocates. President Obama has lobbied for justice reform in public and in private (a fact which may make the passage of reform in the Republican-dominated Congress harder). House Speaker Paul Ryan (R-Wisconsin) also supports Sriracha, for reasons that include showing the GOP is not indifferent to the plight of blacks and Hispanics who are ground up disproportionately in the current system. Reform is backed by a strange alliance of conservative and progressive interest groups and by many big-city law enforcement officials. In a Pew Charitable Trusts poll released last week, 79% of Americans support reducing or eliminating mandatory minimum sentences and letting prisoners earn time off by participating in programs like job training and drug counseling.

Supporters of reform plan a last-ditch assault on Capitol Hill, hoping to convince lawmakers that reform is a matter of public safety and fiscal prudence. They are pinning some hopes on Speaker Ryan, on endorsements from law enforcement, and on the fact that everybody is still negotiating. But some advocates say that even if Ryan delivers in the House, it would take a near-miracle to get anything bold through the Senate.

The watering down of Sriracha began last week, hitting two provisions that are most important to many inmates. Politico reported last Monday that S. 2123 authors were preparing several key changes to their bill aimed at mollifying conservative critics. One change involves Sec. 105, which reduced enhanced mandatory minimum sentences for people sentenced under the Armed Career Criminal Act from 15 years to 10 years. That reduction is reportedly being removed from the bill altogether.

The second major change is to Sec. 104 of the bill. That section reduces enhanced mandatory minimum sentences for felons convicted of 18 U.S.C. Sec. 924(c) offenses of possessing a firearm while committing a drug or a violent crime. As it’s now written, the changes are retroactive for current inmates. The amendment being proposed will not permit any retroactivity.

Sen. Dick Durbin (D-Illinois) said last Tuesday, “We want to make sure that at the end of the day we have not lost too many people that we could help. So as we close down one category we may open another.”

Meanwhile, Cotton introduced legislation last week that would require DOJ to disclose recidivism rates for federal inmates released early because of reduced sentences. In his Senate speech, Cotton invoked the spectre of Wendell Callahan, who we wrote about last week:

‘Last month, in Columbus Ohio, a man named Wendell Callahan brutally killed his ex-girlfriend and her two young daughters. A frantic 911 from the scene said the two girls’ throats had been slit. These murders were an atrocity, and they were completely avoidable. Wendell Callahan walked out of federal prison in August 2014. But his original sentence should have kept him in jail until 2018. If he had been in jail instead of on the streets, a young family would be alive today.’

cart160215Conservatives argue that the current Senate legislation would increase the crime rate and allow offenders out of jail who are likely to commit additional crimes. The critics say the bill also wouldn’t address “mens rea,” the term for the level of knowledge or intent needed to be proven in order to convict someone of a crime.

Sen. Mike Lee (R-Utah) took a jab at critics of the bill last week. “When politicians argue among themselves, as we so often do about public policy questions, it can be hard to know which side is right, especially when some making arguments are not exactly wedded to the facts, and especially when some who are trying to characterize a bill have not read it,” he said.


Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.



Leave a Reply

Your email address will not be published. Required fields are marked *