DOJ Foresees Last-Ditch Push on Commutations – LISA Newsletter for Week of May 9, 2016


Vol. 2, No. 21

This week:
Obama Commutes 58 More as DOJ Urges “Final Push”
8th Circuit Punts, Even As Law Review Article Argues
Johnson Must Apply to “Career Offenders”
Have Mercy on an Orphan
Using the F-Word
Judge Holds Flying Spaghetti Monster Is Not A Deity
All Quiet on the Congressional Front

In his second round of clemency grants in 6 weeks, President Obama commuted the drug sentences of 58 prisoners last Thursday, about half of whom came from petitions supported by the DOJ’s volunteer lawyer-staffed “Clemency Project 2014.”

count160509Cynthia W. Roseberry, project manager for the Project, said “there are a significant number of deserving applicants… including over 900 through Clemency Project 2014, and are awaiting action by the administration.”

DOJ is pressing hard to keep the clock from running out on thousands of federal inmates still hoping to get their drug sentences commuted by the President before he leaves office. At the end of April, Deputy Attorney General Sally Yates pleaded with the Clemency Project to get recommendations filed right away. “Time is of the essence and the inmates who raised their hands for your assistance still need your help,” she wrote, noting the group has set internal deadlines for most cases as soon as today and for other cases in mid-May.

clemency160509“I cannot stress how important it is to meet those deadlines,” Yates said. “If those deadlines cannot be met, we need to ensure that inmates have sufficient time to file pro se petitions, and that the Department of Justice has enough time to process and review them.”

Yates’ reference to inmates filing additional clemency petitions in the coming months – as well as the fact that half of those whose sentences were commuted last week apparently did not meet Clemency Project criteria – implies that the President intends to aggressively commute more sentences this year, and that those commutations may include a number of people who do not meet the Clemency Project guidelines.

Last Thursday, Obama said that commutation was “something I will keep working to do as long as I hold this office.” The President has granted 306 commutations to federal prisoners. As of last Friday, 9,115 commutation petitions were pending, and of these, fewer than 2,000 appear to be eligible for the president’s clemency program, according to a DOJ official. Thousands more are still being reviewed by outside lawyers.

Washington Post, Lack of resources, bureaucratic tangles have bogged down Obama’s clemency efforts (May 6, 2016)

The White House, President Obama Grants Commutations                 (May 5, 2016)

Politico, Obama team making last-ditch push on commutations          (Apr. 29, 2016)


punt160509Last week, the 8th and 9th Circuits both punted on the question of whether the holding in Johnson v. United States – that the residual clause violates due process – applied to Guidelines career offenders as well as to Armed Career Criminal Act sentences.

In United States v. Martinez, the defendant and Government had agreed one of the predicate crimes for his “career offender” enhancement was no longer a crime of violence. The Court of Appeals set aside the “career offender” enhancement, saying “we assume without deciding that Johnson applies to the residual clause of the guidelines.” In United States v. Lee, the 9th Circuit decided that even not applying Johnson, the defendant’s predicate conviction was not a crime of violence.

So does Johnson apply to career offenders? In an Oregon Law Review article published online last week, Kelsey Heilman argued the Guidelines are still the starting point from which sentences are calculated, as the Supreme Court noted two weeks ago in Molina-Martinez). She said “the real and pervasive effect the Guidelines have on sentencing” require that Johnson apply to “career offender” just as it does the ACCA.

career160509“The Guidelines continue to exert enormous influence over sentences,” the article said. “In 2014 nearly half of sentences were within the applicable Guidelines range, and a large majority of sentences were either within-Guidelines or below-Guidelines at the government’s request.” Since 2005, DOJ has tracked federal sentencing trends after Booker. Its most recent report, released in 2012, conceded “‘the guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.’ After reviewing sentencing statistics both pre- and post-Booker, the report goes on to conclude there is ‘relative stability over time in the relationship between the average guideline minimum and the average sentence for offenses in the aggregate’.”

The current batch of Sentencing Commission amendments includes one to change the “career offender” definition of “crime of violence” to bring it in line with Johnson, and the Commission could make everyone’s life easier if it were to make the change retroactive. Ohio State University law professor Douglas Berman said in his blog that retroactivity is unlikely, however, because “doing so could prove almost administratively impossible.”

Nevertheless, the Heilman article concluded that “roughly 75,000 individuals are sentenced each year in the federal system. For each of them, the Guidelines are the mandatory starting point, the most likely ending point, and in all cases a powerful gravitational force. Immunizing the Guidelines from vagueness challenges deprives these individuals both of notice of the likely consequences of their actions and of any meaningful way to challenge arbitrary enforcement of the Guidelines. The Due Process Clause requires the application of the vagueness doctrine to the Guidelines.”

United States v. Martinez, Case No. 15-1004 (8th Cir. May 3, 2016)

United States v. Lee, Case No. 13-10517 (9th Cir. May 6, 2016)

Heilman, Why Vague Sentencing Guidelines Violate the Due Process Clause, Social Sciences Research Network, Apr. 28, 2016)


orphan160509Everyone has heard about the guy who killed his parents, and then asked the court to have mercy on him because he was an orphan. Life sort of imitated art in the 8th Circuit last week.

Mike Fiorito was looking at a lot of time for mail fraud. The government offered him either a deal in the 151-month range, concurrent with a 10-year state sentence he was serving. It was much than going to trial, his lawyer explained to him, where he was likely to get hammered.

Fiorito took the deal, but – back in his jail cell – had second thoughts. He wrote to the judge demanding to withdraw his guilty plea. His lawyer warned him that withdrawing the plea would lead to dire consequences. But Mike kept writing, and after a third letter, the judge gave him what he wanted. Without holding a hearing, the district court let Fiorito withdraw his plea.

hammer160509Fiorito went to trial in front of a different judge, and you can guess the rest. He did get hammered, receiving a 270-month sentence on top of his state term. Fiorito filed a motion under 28 U.S.C. § 2255 claiming the district court denied him the right to counsel before granting his pro se request to withdraw the plea, and it should have warned him of the dangers of withdrawing the plea on his own.

Last week, the 8th Circuit denied his claims. The Court said “the mere fact that the district court considered Fiorito’s letters requesting to withdraw his guilty plea did not necessarily render him unrepresented. Fiorito was represented by counsel, who repeatedly advised him not to withdraw his guilty plea. Fiorito made the personal decision to ignore this advice and withdraw his guilty plea; as the defendant, he maintained the ultimate authority to make certain fundamental decisions regarding the case, including whether to plead guilty.”

Courts have a lot of leeway in deciding whether a hearing is needed before granting a motion to withdraw a plea, or whether a defendant should be warned about self-representation. Here, the Court said, “Fiorito did not need assistance from counsel – or a warning from the court about the dangers of proceeding without counsel – in litigating an adversarial hearing on his request to withdraw,” because there was no hearing to litigate.

Fiorito got just what he asked for without a hearing. Have mercy on an orphan.

Fiorito v. United States, Case No. 15-2319 (8th Cir. May 3, 2016)


FWord160509As part of its “Reentry Week” activities the last week of April, the Office of Justice Programs at DOJ adopted a new policy statement that replaces “unnecessarily disparaging labels” like “felon” or “convict” or “offender” with terms like “person who committed a crime” or “individual who was incarcerated.”

The director of the Office said this would “decouple past actions from the person being described and anticipating the contributions we expect them to make when they return. We will be using the new terminology in speeches, solicitations, website content, and social media posts, and I am hopeful that other agencies and organizations will consider doing the same.”

The new policy does not apply to any other DOJ offices.

Washington Post, Justice Dept. agency to alter its terminology                for released convicts, to ease reentry (May 4, 2016)LISAStatHeader2smallJUDGE DECLARES FLYING SPAGHETTI MONSTER NOT A DEITY

Steven Cavanaugh, a Nebraska state inmate, sued under the 1st Amendment and the Religious Land Use and Institutionalized Persons Act because officials wouldn’t let him wear pirate duds, worship the Flying Spaghetti Monster (FSM), or take part in other Pastafarian pleasures. He said that the prison was violating his constitutional right to practice his religion.

FMS160509Last month, U.S. District Judge John Gerrard (already in the news for his opposition to mandatory minimum sentences) denied Cavanaugh’s motion: “What drives the FSM’s devout followers, aka Pastafarians?” the Judge’s opinion asked. “Some say it’s the assuring touch from the FSM’s Noodly Appendage. There are those who love the worship service, which is conducted in Pirate-Speak and attended by congregants in dashing buccaneer garb. Still others are drawn to the Church’s flimsy moral standards, religious holidays every Friday, and the fact that Pastafarian Heaven is way cooler. Does your Heaven have a Stripper Factory and a Beer Volcano? Intelligent Design has finally met its match—and it has nothing to do with apes or the Olive Garden of Eden.”

But after examining the elements constituting religious beliefs, the Judge decided that Pastafarianism is not a religion, only a parody made to look like one. “This is not a question of theology,” the Court wrote. “It is a matter of basic reading comprehension… it is evident to the Court that FSMism is not a belief system addressing ‘deep and imponderable’ matters: it is… a satirical rejoinder to a certain strain of religious argument… Nor, however, does FSMism advocate for humanism or atheism… Those belief systems, although not theistic, still deal with issues of ‘ultimate concern’ and take a position ‘on religion, the existence and importance of a supreme being, and a code of ethics.’ FSMism takes no such position: the only position it takes is that others’ religious beliefs should not be presented as ‘science.’ Despite touching upon religion, that is a secular argument.”

Cavanaugh v. Bartelt, Case No. 4:14-CV-3183                                          (D.Neb. Apr. 12, 2016)LISAStatHeader2small


SR160509After the prior week’s frenzy surrounding the announcement of a revised Sentencing Reform and Corrections Act, Congress seems to have taken the first week of May off to catch its breath. Nothing happened legislatively last week on either S. 2123 or H.R. 3713.

The website Real Clear Politics reported that “time is running out for Congress to act this year, with a shortened calendar and long breaks during the summer and fall for campaigning. Still, there was confidence last week among supportive senators, who unveiled new changes to legislation intended to increase support among Republicans, that the measure could be finished this year.”

salt160509Others were not so upbeat. A liberal-leaning writer for website Politic365 asked last week “will Senate Majority Mitch McConnell move… S. 2123… against the backdrop of a Republican race that could possibly become a monstrous failure for the Republican Party? “Six target seats just turned into twelve target seats,” said NBC’s Chuck Todd today. That alone should turn Team Mitch into a pillar of salt regarding moving forward on Grassley’s bill.”

It does not contribute to S. 2123’s chances of passage that likely Republican presidential nominee Donald Trump has said that the real victims are the police, who, he insists, “have been treated horribly.”

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.

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