Vol. 2, No. 16
White House Promises “All-Nighter” On Commutation Petitions
Playing the Percentages
Report Suggests BOP Saving $2 Billion From 2014 Guideline Reduction
Why You Should Have a Lawyer – Judge Convicted of Ordering Pro Se Defendant Stunned
Minnesota Towns Ban Sex Offenders in Wake of Federal Court Ruling
Because We Say So
Government Challenges EDNY Expungement of Conviction
Is the Bloom Off the Sentencing Reform Rose?
WHITE HOUSE PROMISES “ALL-NIGHTER” ON COMMUTATION PETITIONS
White House Counsel Neil Eggleston said last week he told his staff “no more eating, sleeping or drinking until we get all these commutations done,” in response to criticism that the Obama administration has done little to address a backlog of 9,000 clemency petitions.
Obama has commuted the sentences of 248 federal prisoners – mostly low-level drug defendants – including 61 at the end of March. The commutations have come in small batches, with last December’s 95 commutations the biggest to date. Last week, Eggleston said he believes the “infrastructure is now very much in place” to file and process clemency petitions.
So far, few federal prisoners have met the Administration’s strict criteria for clemency, which include serving at least 10 years in prison and high standards for nonviolence.
Eggleston said that most of the problems cited two months ago in a sharply-worded resignation letter by DOJ Pardon Attorney Deborah Leff have been addressed, and he rejected a recent New York Times editorial claim that the pardon process should be moved out of DOJ because federal prosecutors are trained to put people in jail, not get them out. “They’re quite committed to this,” Eggleston said.
Politico, White House promises to speed up clemency program (Apr. 1, 2016)
RETROACTIVITY DATA SUGGESTS BOP SAVING $2 BILLION FROM 2014 2-LEVEL GUIDELINE REDUCTION
The U.S. Sentencing Commission’s released a report last Friday finding that Amendment 782 – the Commission’s latest 2-level reduction for most drug offenses – has reduced sentences for 26,850 federal prisoners by an average of two years each.
Ohio State law professor Doug Berman estimated that Amendment 782 retroactivity is “on track to save federal taxpayers around $1.9 billion.” He argued last Friday in his sentencing blog that “as federal statutory sentencing reforms remained stalled in Congress and as Obama continues to be cautious in his use of his clemency power, this data provides still more evidence that the work of the U.S. Sentencing Commission in particular and of the federal judiciary in general remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.”
U.S. Sentencing Commission, 2014 Drug Guidelines Amendment Retroactivity Data Report (Apr. 8, 2016)
PLAYING THE PERCENTAGES
Happily for Eladio, he later got a 2-level reduction under Guidelines Amendment 782. The district court recalculated his new advisory Guidelines range as 70 to 87 months, and then applied the same percentage reduction he had gotten for substantial assistance before, giving him a new sentence of 58 months.
Unhappily for Eladio, the district court did not apply his “level-based” approach. His original sentence had been reduced three Guidelines levels, and Eladio thought his new lower range should be reduced by three levels, too. This would have given him a sentence as low as 51 months. The district court refused, believing that it only had the authority to use a percentage-based approach under U.S.S.G. Sec. 1B1.10(b)(2)(B).
A week ago, the 11th Circuit ruled for Eladio. It held the Guidelines just grant a sentencing court the discretion to comparably reduce a defendant’s sentence where that defendant previously received a Sec. 5K1.1 departure at his original sentencing. “If a sentencing court chooses to exercise its discretion and make a comparable reduction,” the Court said, “it is not bound to use the percentage-based approach – or any one specific method – to calculate the comparable reduction. Rather, the court may use any of the reasonable methods that were available to calculate the original Sec. 5K1.1 departure, so long as they result in a comparable reduction.”
United States v. Marroquin-Medina, Case No. 15-12322 (11th Cir. Apr. 1, 2016)
WHY YOU SHOULD HAVE A LAWYER – JUDGE CONVICTED OF ORDERING DEPUTY TO STUN PRO SE DEFENDANT
A former Maryland judge who ordered a sheriff’s deputy to set off a defendant’s “stun-cuff” ankle device was sentenced last week to anger-management classes a $5,000 fine.
Judge Robert C. Nalley will also spend a year on probation. Nalley pleaded guilty earlier this year to a civil rights violation for ordering a deputy to activate the “stun-cuff.” that a defendant appearing before him was wearing around his ankle. The defendant, who was acting as his own lawyer, was before Nalley in July 2014 for jury selection and had failed stop speaking when the Judge ordered him to do so.
After he was shocked, the defendant fell to the ground screaming. Prosecutor Kristi O’Malley noted that the defendant remained courteous at all times, but the Judge “very quickly grew impatient,” and that his use of the stun-cuff was “highly disproportionate” for “nothing more than verbal interruptions.”
Nalley, who was a judge in Charles County from 1988 to September 2014, did not apologize in court but did say he had made an “error in judgment.”
AP, Ex-judge fined $5,000 for ordering defendant shocked (Mar. 31, 2016)
Minnesota has seen a dramatic rise in municipal laws restricting where sex offenders can live after they have served their terms, setting up a fight at the State Capitol. Some state legislators want to give local communities more control to enact new restrictions, as communities brace for the release of more sex offenders from forced civil commitment in response to a federal ruling that declared the state’s program unconstitutional.
In Karsjens v. Jesson, Judge Donovan Frank ruled last year that the Minnesota Sex Offender Program is essentially permanent confinement with no clear path to release.
A group of legislators has proposed a measure allowing cities and counties to enact tougher laws to keep Level 3 sex offenders — considered the most likely to reoffend — away from schools, parks and other places frequented by children. The chief sponsor says he hopes the bill will give the towns stronger legal standing to defend their sex-offender ordinances in court.
Minneapolis Star-Tribune, Cities are rushing to restrict sex offenders
(Apr. 4, 2014)
Karsjens v. Jesson, Case No. 11-3659 (D. Minn. Jun. 17, 2015)
BECAUSE WE SAY SO
The request was unremarkable. An inmate wanted a copy of his plea agreement unsealed. The district court refused, citing its universal policy to make such agreements available only to the parties, explaining cryptically that “the Court has reasons to do what it’s done.”
Ten days ago, the 6th Circuit reversed. Noting that “plea agreements play a central role in our criminal justice system… What has been said of the plea bargaining process can also be said of the plea agreement itself: It is not some adjunct to the criminal justice system; it is the criminal justice system.” The Court argued public access to plea agreements “plays a significant role in monitoring the administration of justice by plea.” That makes plea agreements “the quintessential judicial record, entitled to the protection of the First Amendment.”
The Court of Appeals said plea agreements may be sealed “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” The district court’s saying only that “it has its reasons” did not offer “findings specific enough that a reviewing court can determine whether the closure order was properly entered… The district court’s ruling, based on a blanket policy, does not satisfy either the constitutional or common law standards.”
United States v. DeJournett, Case No. 14-4204 (6th Cir., Mar. 30, 2016)
GOVERNMENT CHALLENGES EDNY EXPUNGEMENT OF CONVICTION
Federal prosecutors last week urged the 2nd Circuit Court of Appeals to overturn an E.D.N.Y. district judge’s expungement of an unemployed woman’s decade-old conviction, while her attorneys argued it would be a mistake for the court to depart from existing case law.
Last summer, Judge John Gleeson expunged the conviction of a defendant known in the pleadings as Jane Doe, who had been unable to get a job in the wake her sentence for playing a minor role in an insurance fraud 10 years before.
During oral argument, Circuit judges put both sides to the test with questions on when a judge’s jurisdiction ceased, the difference between arrest and conviction records, and whether Jane Doe had adequate remedies through state laws forbidding job discrimination based on one’s criminal history.
There is no general federal statute for expungement, but a 1977 2nd Circuit ruling – United States v. Schnitzer – said expungement power is within a judge’s “equitable discretion.” Schnitzer held it should only be granted in “extreme circumstances.” Gleeson said Doe, with no subsequent criminal history and a repeatedly unsuccessful effort to get work, fit the definition.
Judge Gleeson, now in private practice, held the public was better served if Doe was a working member of society than if her conviction was a matter of public record. He wrote he had sentenced Doe “to five years of probation supervision, not to a lifetime of unemployment.”
New York Law Journal, Gleeson Expungement in ‘Doe’ Is Put to the Test at the Circuit (Apr. 8, 2016)
IS THE BLOOM OFF THE SENTENCING REFORM ROSE?
Things are not looking rosy for the Sentencing Reform and Corrections Act of 2015, before the Senate as S. 2123, and before the House as H.R. 3713. The Marshall Report said last Friday that “there is a growing sense that a) Congress is unlikely to pass anything this year worthy of being called reform, and b) it might be better to start over in 2017.” Many criminal justice reform advocates – and more than a few inmates – have heard that refrain before.
The Sentencing Reform and Corrections Act of 2015 was predicted to be a defining issue of this Congress, a rare unifying moment for Republicans, Democrats and the President. Instead, the members of the Judiciary Committee who wrote the criminal justice package are now at war over whether to consider Mr. Obama’s nominee to the Supreme Court, Judge Merrick B. Garland.
The New York Times reported last Thursday that the feud over the nomination has overshadowed the effort to pass sentence reform. Supporters of reform are worried about the bill’s fate, especially with the Senate about to turn to time-consuming spending bills, and with the election-year calendar approaching a point where only the most essential work gets done.
“If this is going to happen along with 12 appropriations bills, we are going to have to elbow our way into the queue,” Sen. Richard Durbin (D-Illinois), one of the bill’s authors, said. “The ball is now on the Republican side of the net.”
The Capitol Hill newspaper Roll Call reported last week that Administration officials are “quite optimistic” that the Senate will act on a criminal justice overhaul bill “quite soon,” according to White House Counsel Neil Eggleston. But Senate leaders who have been working closely with White House officials, sounded more cautious. “It doesn’t seem to be moving,” said Judiciary member Sen. Jeff Flake (R-Arizona) admitted. “We’ve got to get agreement on some things so it doesn’t take much time,” he said.
Meanwhile, criminal justice issues are generating some heat for the Democrat front-runner. Former President Bill Clinton spent more than 10 minutes last Thursday confronting protesters at one of his wife’s campaign rallies in Philadelphia over criticisms that a 1994 crime bill he approved while president led to a surge in the imprisonment of black people.
The former President gave as good as he got. Clinton said the bill lowered the country’s crime rate, which benefited African-Americans, achieved bipartisan support, and diversified the police force. He told one protester, “I don’t know how you would characterize the gang leaders who got 13-year-old kids hopped up on crack and sent them out onto the street to murder other African-American children … Maybe you thought they were good citizens … You are defending the people who kill the lives you say matter.”
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