Just Because Your Friends Do It Doesn’t Mean It Isn’t Hopemongering – Update for July 5, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


mouse170706From time to time, we rail about hopemongerers, people who traffic on the desperation of federal inmates to make a buck. The people who do this spectrum from those proceeding out of naïve self interest, like the Colorado prison reform group that is really just the families of the co-conspirators in a white-collar fraud, to the genuinely corrupt, like the bunch selling a sentence reduction scam.

(A happy note: Alvin Warrick, aka “Pete Candlewood,” last week got slammed with a 235-month sentence in the Southern District of Florida, while sidekick Colitha Bush got 96 months – we’ll be sure to offer them the Rule 35 Deal of the Century).

But sometimes someone with the most altruistic of motives inadvertently stirs the pot of hope, sending the system into a tizzy for no good reason. And that brings us to our friends at Prisology.org.

Prisology is an on-again off-again prison reform group headed by Brandon Samples, a former federal inmate who is now a practicing attorney. Brandon’s a sharp guy, someone who has been in both seats at the defendant’s table, as a defendant facing a harsh sentence and as counsel working to get his client the best outcome possible.

prisologyL170706Prisology, formed in 2013, became active in about 2014, organizing a letter-writing campaign to the U.S. Sentencing Commission when Amendment 782 – retroactivity of the two-level reduction in drug base offense levels contained in USSG Sec. 2D1.1(c) – was being considered. The organization’s website touts its involvement in the 2014 efforts, claiming that its “monumental effort” in submitting tens of thousands of letters to the Sentencing Commission in support of retroactive application of the 2-level drug reduction “helped prompt change to harsh drug guidelines.” Indeed, in a press release issued in March 2015, Prisology said, “Key to the Sentencing Commission’s unanimous approval of Amendment 782 was its receipt of over 75,000 comments favoring the reform, mostly prompted by an intensive email, letter writing and social media campaign organized by Prisology. This is the first major victory for the barely year-old nonprofit organization dedicated to criminal justice system reform.”

Really? This would certainly be news to Families Against Mandatory Minimums, the 25-year old big gorilla in criminal justice reform. FAMM took credit for generating most of the 65,000 plus letters the Sentencing Commission received, a claim that – given FAMM’s prominence in sentencing reform – is much easier to swallow that Prisology’s assertion that it organized the effort.

rooster170706In all fairness, even if one credits Prisology’s rather far-fetched contention that it ramrodded the 2014 drug reduction retroactivity decision, the organization is pretty much the rooster taking credit for the sun rising. After all, in 2007, the Sentencing Commission reduced the offense levels for drug quantities, and made those changes retroactive in Amendment 706. In 2011, the Sentencing Commission again made reduced crack cocaine offense levels retroactive in Amendments 750 and 759. After those retroactive reductions, the 2014 decision was hardly a seismic event.

Plus, it’s not like the retroactivity decision had any natural predators. The Obama Administration supported it. There was no effort in Congress to thwart it. The Sentencing Commission’s vote on retroactivity was unanimous. And FAMM, a considerably larger advocacy group, was generally credited at the time with generating a vast volume of mail in support of retroactivity.

After 2014, Prisology seemed to fall dormant. It posted two press releases in early 2015, one of which was its self-adulation for spearheading the 2014 retroactivity decision. There was one project, Prisology’s Freedom of Information Act lawsuit against the Federal Bureau of Prisons, in which the nonprofit had its hat handed to it by the D.C. Circuit earlier this year. But otherwise… nothing.

prisology170706Until now. A few weeks ago, we heard from a number of inmate readers asking us what was about to happen in the sentence reform world. It seems they had received emails from well-known federal post-conviction attorney Jeremy Gordon – a Prisology board member who was at the helm of the FOIA suit when it foundered on the D.C. Circuit’s shoals – who told them something big was in the works: One wrote

Do you know who Jeremy Gordon is? He’s a federal lawyer that sends out newsletters every week. Any way he said to tune in next week because there’s going to be a big sentencing reform push bigger than the drugs minus 2 and has the potential to affect everyone in federal prison… have you heard anything?

Yes, we have now heard something. After all of the hoopla, Jeremy, Brandon and Prisology last week brought forth a… mouse.

It seems that Prisology has drafted a new sentencing table (Chapter 5A of the Guidelines), which proposes substantially lower sentencing ranges for each step in the chart than those in the current table. It wants to generate 50,000 letters to the Sentencing Commission in an effort to browbeat the agency into adopting the proposal. The organization includes a form on its website that you can complete and submit online, complete (of course) with your name, address, email and phone number.

OK, so what could possibly be wrong with this? To be sure, the Guidelines would benefit from a more rational sentencing range chart. And, as one inmate complained to us, at least this constitutes “doing something” toward sentence reform. Something’s always better than nothing, right?

petition170706We have two – maybe two-and-a-half – complaints with Prisology’s approach. First, the Sentencing Commission’s statutory mandate nowhere mentions vox populi. The Commission is a judicial agency, not a representative democracy, and flooding it with 50,000 online forms, all of which are different names attached to the same message written by Prisology, is not going to sway any bureaucrat. Online petitions do not get read. If the sentencing tables should be rewritten, then a compelling case should be made, one that addresses the sentencing factors of 18 USC 3553(a) and that statutory goals of the Commission. After all, 50,000 online signatures in a country where more than half of Americans believe aliens have visited earth does not really establish much.

Our second complaint is more significant. By trumpeting this online petition so prominently, and billing it to inmates as “bigger than the drugs minus 2,” as our correspondent put it, Prisology has committed the cardinal sin of hopemongering. Let’s say for a moment that the Sentencing Commission really did adopt the new sentencing table. Nothing about that adoption makes the change retroactive. Rather, as with all of the drug reductions, the Commission would have to hold a second proceeding to determine retroactivity.

And there’s the rub. In considering retroactivity, the Commission considers, among other factors, (1) the purpose of the amendment, (2) the magnitude of the change in the guideline range made by the amendment, and (3) the difficulty of applying the amendment retroactively. See USSG Sec. 1B1.10.  In 2010, when the Commission abolished the extra criminal history point assigned for “recency,” that is, when the new crime occurred within two years of getting off parole or supervised release for a prior crime, the Justice Department and the Judicial Conference strongly opposed retroactivity for the “recency” amendment – which would have affected maybe 7,997 prisoners – because of the disruption such a change would have caused the court system. Bowing to those views, the Sentencing Commission turned down the retroactivity proposal.

falsehope170206How likely would the Sentencing Commission be to approve retroactivity for over 150,000 prisoners, so that each could file a petition with his or her judge seeking resentencing at a lower sentencing range?

Finally, our complaint No. 2½: We cannot help sensing that maybe Prisology’s primary purpose in the online petition is to capture data. As Heather Horn wrote in The Atlantic:

It’s the great lie of online organizing: that your voice to Congress or your voice to whomever can make a difference. It can, it should, but not through them. Nearly every organization in Washington is focused on one thing–inventing new and interesting ways to get your email address. And they want your email address so that they can ask you for money.

You don’t need a physical address, phone number and email address to sign an online petition. Congress alone gets over a billion emails annually. No one has time to read them, let alone record the user information. The organization, however, does, and it gains a valuable email, phone and address database from which to solicit funds.

We are left with the disquieting feeling that Prisology may be as interested in bulking up its email list as it is in selling the Sentencing Commission its new Sentencing Table.

Is the Prisology online petition push a scam? We have no opinion on that, but it has clearly raised inmate hopes without foundation and has little chance of having any impact.

The Atlantic, Your Online Petition Is Useless (Aug. 12, 2010)

– Thomas L. Root


6th Circuit Reverses Self, Holds Tennessee Agg Burglary Not “Crime of Violence” – Update for June 29, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


anger170630You might remember Victor Stitt from your last anger management class. He was the guy who tried to shove a loaded handgun into his girlfriend’s mouth during a little domestic spat. When a neighbor called the police, Vic decided to man up by running home to mommy. The cops followed, and he finally emerged from his mother’s house to be arrested. Police recovered the gun.

Unsurprisingly, Vic had a record, and so was convicted of being a felon in possession under 18 USC § 922(g)(1). The district court counted nine prior felonies that qualified him for a sentence enhancement under the Armed Career Criminal Act (which only requires three prior crimes of violence or drug offenses). Six of the nine qualifiers were for Tennessee aggravated burglary. The ACCA enhancement qualified Vic for at least 15 years: the court gave him 24.

violent170315On appeal, Vic argued that none of his nine convictions qualify as predicates under the ACCA. The government conceded that Johnson v. United States invalidated the violent-felony status of three of his prior offenses, leaving only the six aggravated-burglary convictions at issue. The 6th Circuit, bound by its prior decision in United States v. Nance, upheld the prior burglaries as ACCA predicates.

But then, like the cavalry riding up at the nick of time, came Mathis v. United States. The 6th Circuit granted Vic rehearing to figure out whether Nance was still good law, and earlier this week, it reversed itself, holding aggravated burglary in Tennessee did not qualify as a burglary under the ACCA.

Tennessee defines aggravated burglary as the “burglary of a habitation.” A “habitation” is “any structure . . . which is designed or adapted for the overnight accommodation of persons.” The term “habitation” includes “mobile homes, trailers, and tents,” as well as any “self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant.”

The Supreme Court has determined that under the ACCA, “generic burglary” means an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. Although the Court left “building or other structure” undefined, it confirmed in Mathis that vehicles and movable enclosures (e.g., railroad cars, tents, and booths) fall outside the definitional sweep of “building or other structure.”

burglary160502The 6th Circuit said that the only wrinkle is “whether a burglary statute that covers vehicles or movable enclosures only if they are habitable fits within the bounds of generic burglary.” The Circuit held that it does not. The Supreme Court has emphasized that a place’s form and nature — not its intended use or purpose — is what determines whether a burglary statute’s locational element is a “building or other structure.”

The government argued that the 6th should follow the Model Penal Code and the statutes of most states, which include movable structures like boats and cars within the sweep of the burglary statute. The appellate court declined, noting that Congress was specific in using the word “building” in the 1984 generic burglary definition, and the Supreme Court previously found that “nothing in the legislative history suggested that Congress intended in 1986 to replace the 1984 ‘generic’ definition of burglary with something entirely different.”

Until the law is changed, a burglary statute criminalizing burgling of anything in addition to a building is simply too broad to support an ACCA enhancement.

United States v. Stitt, Case No. 14-6158 (June 27, 2017)

– Thomas L. Root


District Judge Won’t Go Along With the Government’s Program, Gets Slapped – Update for June 28 ,2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


mario170628Mario Crancho, a trucker from Mexico, got busted in Arkansas with 43 kilos of coke hidden in his trailer. He wisely agreed to cooperate, and proceeded to make controlled deliveries, identified stash houses and debriefed extensively on the trans-border coke trade.

Of course, the government freely used its considerable powers to assist Mario, too. First, the government somehow failed to pass on to the Presentence Report writer the actual drug quantity Mario had shipped, instead mentioning only two of over 20 trips Mario had made from south of the border. This conveniently omitted probably 95% of the quantity he had actually shipped, leaving him with a very favorable advisory sentencing range of 168-210 months. The district judge wondered why, but lacking any cooperation from the parties in providing the right number, he ultimately adopted the PSR “without change.”

Then, at the sentencing hearing, the prosecution waxed rhapsodic about Mario’s assistance, calling it very substantial and asking for a 50% sentence cut from the low end of his guidelines pursuant to a USSG § 5K1.1 downward departure.

So how many pallets of Mario’s cocaine did the court not hear about? Inquiring minds – including the judge’s – want to know…

The district court reluctantly granted the government’s 5K1.1 motion, concluding that Mario had provided substantial assistance. But the judge was troubled, and pretty clearly had had a bellyful of these kinds of deals. The court said he was “really struggling with this because, while he has provided substantial assistance, what it does is shows me the breadth of… his involvement in these drug crimes, and it’s huge.” The district court had “seen people with not nearly this culpability go to jail for extended periods of time” and was “struggling with the 50 percent reduction and with the low end of the guidelines.”

And isn’t that the problem? The government has so much power to shower love on people who assist it, no matter their prior culpability. And the poor shmuck who peddled nickel bags on the corner. He didn’t know nuthin’, and so he’s got no information to trade. Watch the U.S. Attorney’s young guns hammer that kid at sentencing.

hammer160509However, when Mario’s judge expressed his misgivings, the government doubled down, becoming even more effusive. It argued Mario was super, having placed himself in great personal danger by making the controlled deliveries, that he began cooperating with the government at his first opportunity (forgetting his previous 21 coke runs from Sinoloa to North Carolina), and that had provided other valuable information as well. Defense counsel chimed in that Mario was a great guy and had a successful trucking business (that success helped no doubt by payments received for shipping hundreds of kilos of coke to the Tarheel State).

The government’s happy talk did not allay the district court’s concerns:

The problem I have with this is he’s given the opportunity to cooperate because he was so high up and because he was driving so much drugs and he was dumping that crap here in Winston-Salem, and we send people to jail every day for .6 grams of drugs, and it is massive amounts of drugs, and… in terms of the equity in sentencing… I can tell you I am not going to the low end, and I am still struggling with whether or not I am going to do the actual total 50 percent.

The judge sentenced Mario to 210 months, the top of the guidelines, and then cut it by 40% for substantial assistance. So instead of walking out of the courtroom with 84 months, Mario ended up with 126 months. That’s 44 months more than Mario expected, for the math-challenged among us.

Mario appealed, and on Monday, the 4th Circuit slapped the district judge’s hand.

Fourth Circuit case law requires a district court determining the extent of a 5K1.1 departure to consider assistance-related factors only. The district court clearly found Mario’s assistance to be substantial, but then judged the 50% reduction not on the extent or quality of Mario’s assistance but instead to the scope of the charged conspiracy and the level of Mario’s culpability in that conspiracy, questioned the equity of giving Mario a lower sentence than is often imposed on less culpable defendants, and condemned the destructive effect of the “junk” that Mario was “dumping” on the community.

The 4th Circuit's subtle advice to the district judge...
The 4th Circuit’s subtle advice to the district judge…

The Circuit admitted there was no problem relying on those other factors in setting the 210-month end of the guidelines, but the district court used it again in selecting a 40% instead of 50% reduction. The Court of Appeals said, “these concerns, which focus on facts related to the charged conspiracy, simply bear no relation to the nature, extent, and significance of the defendant’s assistance.”

Bottom line: The district judge was substituting his judgment for the prosecutor’s. There’s little room for that kind of judicial independence under the current sentencing regime.

The case was remanded for resentencing.

United States v. Crancho, Case No. 15-4760 (4th Cir. June 26, 2017)

– Thomas L. Root


Not With a Bang But a Whimper – SCOTUS October Term 2016 ends – Update for June 27, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


The Supreme Court ended its October 2016 term yesterday by issuing several higher-profile decisions, including one on not denying state programs to churches, and granting certiorari on the Trump Administration’s travel ban

scotus170627But we are nothing if not one-issue commentators here, so we left the final session of the term unsatisfied, as the Court left two immigration cases –  including the long-awaited Sessions v. Dimaya – undecided.

The Court is adjourned until October 2, 2017, when its next 9-month session begins.

The issue in Sessions v. Dimaya, Case No. 15-1498, is this:

When a noncitizen is convicted of a crime, he can be deported if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined in 18 U.S.C. § 16 as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In 2015, the court ruled in Johnson v. United States that the “residual clause” in the Armed Career Criminal Act had a definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – that was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence,” and by extension, the 18 U.S.C. § 16 definition of a crime of violence.

punt1606134Yesterday, the Supreme Court punted, setting the case for reargument next fall. This suggests that the Court was splintered as to how to decide it, probably split 4-4 (the case was argued before Justice Gorsuch joined the court). That means Justice Gorsuch will be the swing vote.


No Justice announced retirement yesterday, although rumors flew that Justice Anthony Kennedy, who just turned 80, might do so. Justice Kennedy’s wife, Mary, was not present in the courtroom (as she often is), leading SCOTUS observers to discount the likelihood of a Kennedy retirement this year.

The failure of any Justice to make a retirement announcement is not terribly significant. Justices announce retirement at any time, not specifically on the last day of the term. If one would retire before October, a reargument could still leave the court deadlocked.


The Court also issued two orders of interest:

gun160711Sessions v. Binderup, Case No. 16-847: The question was whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms and ammunition, is unconstitutional under the Second Amendment based on the petitioners’ claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

The Court relisted the petition six times – an unusual number of times to reconsider a petition for writ of certiorari – but yesterday it denied the petition for certiorari.

The multiple relistings suggest that the court may be close to accepting a case on this topic.

Hicks v. United States, Case No. 16-7806: When Marcus Hicks was sentenced, he was eligible for the lower sentence for crack cocaine offenses under the Fair Sentencing Act, because while he committed the crime before the FSA passed, he was being sentenced after it passed. But no one noticed, and before the 5th Circuit, nobody argued it. Marcus got the higher sentence. He asked the Supreme Court for certiorari to correct it.

errorA160425Yesterday, the Supreme Court GVR’d the case (which is SCOTUS shorthand for granted certiorari, vacated and remanded all at once) summarily reversing the 5th Circuit, and sending  the case back. Everyone agreed Marcus met the first two elements of plain error: The court could see a mistake had been made, error was obvious. But two other elements had to be met also: Marcus’s substantial rights to a lower sentence had to have been harmed, and the error had to implicate the fairness, integrity, or public reputation of judicial proceedings.

The Supreme Court sent the decision back to the 5th Circuit to determine the last two factors.

Justice Neil Gorsuch, only two months on the Court, filed a concurring opinion on Marcus’s remand which hints that he may approach federal criminal law matters with an open mind and a sense of fairness. The Justice wrote:

Everyone agrees that Mr. Hicks was wrongly sentenced to a 20-year mandatory minimum sentence under a now-defunct statute. True, Mr. Hicks didn’t argue the point in the court of appeals. But before us the government admits his sentence is plainly wrong as a matter of law, and it’s simple enough to see the government is right…

A plain legal error infects this judgment—a man was wrongly sentenced to 20 years in prison under a defunct statute. No doubt, too, there’s a reasonable probability that cleansing this error will yield a different outcome. Of course, Mr. Hicks’s conviction won’t be undone, but the sentencing component of the district court’s judgment is likely to change, and change substantially. For experience surely teaches that a defendant entitled to a sentence consistent with 18 U. S. C. §3553(a)’s parsimony provision, rather than pursuant to the rigors of a statutory mandatory minimum, will often receive a much lower sentence.

When it comes to the fourth prong of plain error review, it’s clear Mr. Hicks also enjoys a reasonable probability of success. For who wouldn’t hold a rightly diminished view of our courts if we allowed individuals to linger longer in prison than the law requires only because we were unwilling to correct our own obvious mistakes?”

– Thomas L. Root


The Boy Who Cried ‘Wolf’ Is Denied a Sentence Reduction – Update for June 26, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Defendants rat out other defendants. It’s the way of the world, especially because the federal sentencing structure places so much power in the hands of the United States Attorney to control a defendant’s destiny.

snitch161004The government can control application of mandatory minimum sentences by what counts it brings and which counts, as part of a plea deal, it dismisses. It controls which facts it brings to the court’s attention at sentencing (such as deciding to mention the hunting rifle agents found in a drug defendant’s closet – which will get a 2-level enhancement and make him ineligible for a “safety valve” reduction under 18 USC 3553(f) – or deciding the gun had nothing to do with the crime, and so omitting its mention. It even controls the timing of the criminal case by deciding when within the 5-year period of limitations to bring an indictment.

It’s no wonder that smart defendants figure out very quickly that if they want a break, they had better give the government something on someone. In FY 2016, 11.1% of defendants did so before sentencing, winning downward departures for providing substantial assistance to the government. Another 8.2% had sentences set below the guidelines range because of government sponsorship, many of which were because of some assistance given to law enforcement.

Finally, for about 1.8% of inmates who miss the boat at sentencing, F.R.Crim.P. 35(b) provides post-sentence relief for people who provide assistance to he government after sentencing.

Anyone who provides assistance to the government knows that only the government controls whether any sentence credit will be awarded. To get credit at sentencing, a defendant has to hope the government files a USSG § 5K1.1 motion. If the assistance comes after sentencing, a sentence reduction can only be granted under F.R.Crim.P. 35(b), and again, only the government is allowed to file that motion.

scarpa170626Greg Scarpa, a self-described “made” member of the Colombo crime family, got locked up in 1988 for something like 482 months on a RICO beef. While in MCC New York, Greg had a cell next to 1993 World Trade Center bomber Ramzi Yousef. Greg colluded with Ramzi, and told government agents a whopper that led them on a wild-goose chase. At a 1999 sentencing, Greg’s judge hammered him for lying to the government, and excused the U.S. Attorney from filing a 5K1.1 motion.

yousef170626After Greg went back to prison, he testified on several occasions against mobsters who were attacking their sentences. But his testimony was found to be “problematic,” which is to say more than one judge found him to be unhelpful and a liar.

Finally, in 2005 Greg found himself celled next to Terry Nichols, one of the two Oklahoma City bombers. Greg approached law enforcement again, telling that that Terry had admitted that a batch of explosives was hidden in Terry’s former residence. By this point, no one believed him, and after he failed an FBI polygraph test, the agents told him never to call them again.

nichols170626Greg told his own investigators about the hidden bomb-making materials, and they told a congressman, who in turn pressured the FBI. Agents finally searched the old residence, and lo and behold, they found the bomb-making parts.

Greg had his lawyer write to the U.S. Attorney to ask for his Rule 35(b) motion. The U.S. Attorney refused, saying that “Scarpa’s info is suspect, his sources are suspect, and even if he did provide the info, the Eastern District is not interested in giving him Rule 35 relief. I asked if they would proffer him for his additional info, and they say they do not want to spend the money or the effort. All this is based upon his past track record.”

Greg had a 2255 motion pending, so he supplemented it demanding that he get his Rule 35(b) motion. The government responded with a history of Greg’s prevarications. Meanwhile, Greg had outlasted his previous judge, who retired, and got a new district judge who decided that the U.S. Attorney’s discretion “is not entirely immune from judicial review.” Citing Wade v. United States, the district court held that Greg would be entitled to relief if the U.S. Attorney’s refusal to move for the 35(b) “was not rationally related to any legitimate Government end.” Believing the U.S. Attorney had no legitimate basis to withhold a sentence reduction, the district court cut Greg’s sentence by 120 months.

Last week, the 2nd Circuit reversed the sentence cut. It is true that a defendant is entitled to a Rule 35(b) reduction if the U.S. Attorney’s refusal to move for sentence cut was for an unconstitutional reason or “is not rationally related to any legitimate Government end.” But here, the 2nd said, the government had legitimate reasons to spare. The “legitimate governmental concerns included, inter alia, findings of judges in three federal cases that Scarpa has given sworn testimony or statements that cannot be credited, along with the government’s 1999 (sealed) submissions describing the prior “variety of wild-goose chases,” induced by Scarpa in the guise of proffering substantial assistance.”

wolf170626The Circuit was clearly offended that Greg had tried to game the U.S. Attorney with phony information on several prior occasions. “Willfully making materially false statements to the government is in itself a crime, and Scarpa’s history of false statements was of special concern to the government in the circumstances at issue here. Such concerns cannot be deemed irrational… Such fraudulent cries of “Wolf” not only cause the misallocation of government resources, but they also make less likely an appropriate government response if the man who cried “Wolf” subsequently sounds an alarm that is genuine. Plainly, it is a legitimate government objective to deter such fraudulent proffers, rather than to encourage them by indicating that, so long as a genuine alarm is sounded eventually, the former parade of frauds is forgiven.”

United States v. Scarpa, Case No. 16-303 (2nd Cir., June 22, 2017)

– Thomas L. Root

Defendant Who Could Not Win at Trial Can Still Argue Bad Plea Advice – Second Update for June 23, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


If a post-conviction petitioner argues in a 28 USC 2255 motion that he or she would never have taken a plea deal if defense counsel had done a competent job of explaining it, the courts have held that the prisoner must show (1) the advice was deficient (either bad or missing altogether); and (2) but for the bad representation, he or she would have rejected the plea and gone to trial. This is the Hill v. Lockhart test, from a 1985 Supreme Court decision.

pleading170502A prisoner might have a lot of reasons for going to trial that have nothing to do with whether he or she can win. But over the years, the government has convinced courts that if the petitioner had no reasonable chance of winning at trial, he or she cannot prove that but for the lousy advice, he or she would have rolled the dice with a jury.

Korean-American restaurant owner Jae Lee was in that boat. Jae had moved to the United States from South Korea with his parents when he was 13. In the 35 years he spent in this country, Jae has never returned to South Korea, but neither had he become a U. S. citizen, living instead as a lawful permanent resident.

In 2008, federal law enforcement found drugs, cash, and a loaded rifle in Jae Lee’s house. Jae admitted that the drugs were his, and a grand jury indicted him. His attorney talked pleas with the Government. During the plea process, Jae repeatedly asked his attorney whether he would face deportation; his attorney assured him that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted a plea and was sentenced to a year and a day in prison.

plea161116The attorney was dead wrong. Jae was subject to mandatory deportation as a result of the plea. When Jae learned of this consequence, he filed a 2255 motion, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing, both Jae and his lawyer testified that “deportation was the determinative issue” to Jae in deciding whether to accept a plea. The attorney acknowledged that although Jae’s defense to the drug charge was really weak, if he had known Jae would be deported upon pleading guilty, he would have advised him to go to trial anyway.

The district court denied the 2255, holding that while Jae Lee’s counsel had performed deficiently, Jae could not show that he was prejudiced by his attorney’s erroneous advice. The 6th Circuit agreed.

Today, the Supreme Court reversed, 6-2, in a substantial victory for Jae. The Supremes noted that the basic rule since Hill v. Lockhart has been that when a defendant claims his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

The problem with Government’s per se rule that a defendant without a viable defense cannot show prejudice from the denial of his right to trial, Chief Justice Roberts wrote, is that “categorical rules are ill suited to an inquiry that demands a case-by-case examination of the totality of the evidence.” What’s more, the Government overlooks that the Hill v. Lockhart inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.

hailmary170613The Court said the decision whether to plead guilty involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For Jae, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial.

The Government argued that “a defendant has no entitlement to the luck of a lawless decisionmaker,” quoting Strickland v. Washington. The Court said that the “lawless” quote was made in the context of discussing the presumption of reliability applied to judicial proceedings, which has no place where, as here, a defendant was deprived of a proceeding altogether. When the inquiry is focused on what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent.

The Supreme Court said that district courts should not upset a plea solely because of after-the-fact assertions by a defendant about how he would have pleaded but for his attorney’s deficiencies. Rather, they should look to contemporaneous evidence to substantiate a defendant’s expressed preferences. Here, Jae has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.

The Government argued that Lee cannot “convince the court that a decision to reject the plea bargain would have been rational under the circumstances, since deportation would almost certainly result from a trial. But the Chief Justice was not willing to let courts decide that “that it would be irrational for some-one in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation.”

We think this decision will have a significant effect on 2255 petitioners seeking to set aside an incompetently-advised plea.

Lee v. United States, Case No. 16-327

– Thomas L. Root



Brady Takes a Hit (Maybe) – Update for June 23, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


The Supreme Court issued three opinions yesterday, all on criminal matters.

  • Brady Material Not Material

Turner v. United States, Case No. 15-1503:  The case concerns the murder of Catherine Fuller, a District of Columbia mother, nearly a quarter-century ago. The petitioners in the case were a group of Washington, D.C., men who were convicted of the crime, based primarily on testimony from alleged eyewitnesses. Years later, a reporter learned that the men’s lawyers had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had not turned over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts. However, last fall the justices agreed to review the case, focusing on whether the men’s convictions must be set aside under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant.

The Supreme Court affirmed, 6-2, holding that the government did not violate Brady. Justice Breyer wrote that the question before the court was whether the withheld evidence was material under Brady. In the case, a group attack was the very cornerstone of the Government’s case, and virtually every witness to the crime agreed that Fuller was killed by a large group of perpetrators.

Pat Brady - Roy Rogers' comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.
Pat Brady – Roy Rogers’ comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.

The Court held that it was not reasonably probable that the withheld evidence could have led to a different result at trial. Petitioners’ problem, Justice Breyer wrote, is that their current alternative theory would have had to persuade the jury that two defendants had  falsely confessed to being active participants in a group attack that never occurred; that another person falsely implicated himself in that group attack and yet gave a highly similar account of how it occurred; that an otherwise disinterested witness wholly fabricated his story; that two other witnesses likewise testified to witnessing a group attack that did not occur; and that Montgomery in fact did not see petitioners and others, as a group, identify Fuller as a target and leave together to rob her.

The case is very fact-bound, meaning that it may not have a lot of relevance to other Brady cases.


Maslenjak v. United States, Case No. 16-309:

Divna Maslenjak was an ethnic Serb who came to the United States as a refugee from what is now Bosnia, fleeing the conflict in the former Yugoslavia.  She became a U.S. citizen but was later stripped of her U.S. citizenship and deported (along with her husband) to Serbia after the U.S. officials discovered that she had made false statements during the naturalization process. Divna told immigration officials (among other things) that her family feared persecution from Muslims, and that they might be abused because her husband had evaded service in the army.

That turned out to be false, Her husband actually had served in the army, and was part of a unit that participated in an infamous massacre of Muslims.

Divna admitted she lied to U.S. immigration officials, but she argued that she should still be able to remain a U.S. citizen because the false statements were not material – that is, they would not have been important to the officials deciding whether to grant her citizenship application. 

Well, we're calling you a liar, Ms. M... But was your lie material?
Well, we’re calling you a liar, Ms. Maslenjak… But was your lie material?

In an opinion by Justice Kagan, the Court vacated and remanded, by 9-0, with three concurrences. The Justices held that the government must establish an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means the government must demonstrate that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts that would justify denial.

The Court did not decide whether the lie Divna told was disqualifying. In all likelihood, it is. But that is for the district court to decide on remand.


Weaver v. Massachusetts, Case No. 16-240:

This case explored whether a criminal defendant who contends that his lawyer provided constitutionally inadequate representation that resulted in a “structural” error – that is, a fundamental error that affects the entire structure of a trial – must also show that he was harmed by that inadequate representation.

Kentel Weaver was arrested in 2003 at the age of 16 for the murder of a 15-year-old in Boston. He eventually confessed. However, Weaver’s case went to trial anyway, with a jury pool of approximately 90 potential jurors.

courthouseclosed170605When Weaver’s mother and other supporters arrived for the trial, they were told – on two separate days – that the courtroom was “closed for jury selection.” Weaver’s lawyer was aware that Weaver’s supporters had not been admitted to the courtroom, but he did not object. Several years later, Weaver sought a new trial, citing (among other things) his lawyer’s failure to object when the courtroom was closed during jury selection. The judge ruled that the courtroom had indeed been closed, in violation of Weaver’s Sixth Amendment right to a “public trial.” But he also ruled that Weaver would have to show that he was prejudiced by the courtroom closure, which he had failed to do.

In an opinion by Justice Kennedy, the Supreme Court held, 7-2, that although the right to a public trial is important, “in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant’s standpoint.”  Here, Weaver had not shown a “reasonable probability of a different outcome but for counsel’s failure to object, and he had not shown that counsel’s shortcomings led to a fundamentally unfair trial. He is not entitled to a new trial.”

The Court said the proper remedy for addressing violation of the right to a public trial depends on when the objection was raised. If an objection is made at trial and the issue is raised on direct appeal, the defendant generally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.” If, however, the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance claim, the defendant generally bears the burden to show deficient performance and that the attorney’s error “prejudiced the defense.” To demonstrate prejudice in most cases, the defendant must show “a reasonable probability that . . . the result of the proceeding would have been different” but for attorney error.

In other words, if the defendant’s trial counsel is incompetent, and if his appellate counsel is incompetent, he is prejudiced by having to show prejudice at the post-conviction stage? Whew. We suspect we have not heard the last of this theory.

– Thomas L. Root


All Animals Are Equal But… – Update for June 22, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Terry Joe Smith was a bully. He liked to beat the crap out of people. But that kind of conduct is illegal for most bullies, so Terry Joe joined the Putnam County Sheriff’s Office as a deputy.

Putnam County, Indiana, with fewer people (40,000) than attend a typical Indiana University football game, does not appear to have much going for it. The official Putnam County visitors’ website, which hasn’t been updated in about 10 months, is mostly dedicated to ads for the next county to the west.

tjsmith170623But, however humble, it was home to tiny (6’3”, 270-lb) Terry Joe, whose career included protecting (and representing on city council) the fine people of Greencastle. Terry Joe kept the citizenry safe b, among other things, punching an arrestee – who was under the control of four other cops – in the face with a closed fist, which two other deputies testified sound like “a tomato hitting a concrete wall,” sending the poor perp away in an ambulance. Terry Joe was impressed with that one, bragging afterward about the punch and making fun of the deputies who found his conduct objectionable.

In another incident, Terry Joe was leading a drunken domestic violence defendant to the squad car. He lifted the handcuffed suspect into the air, threw him face-first onto the ground and drove his knee into the man’s back with such force that the man defecated on himself. Terry Joe liked that move, and told other deputies it wasn’t the first he’d made a defendant soil himself with a knee in the back.

He must have been very persuasive as a campaigner for city council. Greg Gianforte could have learned from this guy.

sipowica170623We had an old law partner who liked to say that “no thief steals only once.” Likewise with Terry Joe. He was prosecuted for the punch and knee incidents, but those were just the tip of the iceberg. Besides the incidents he liked to brag about, Terry Joe had beaten up juveniles at the correctional center, surreptitiously recorded inmate conversations, provided favored detainees with tobacco, and collected county pay while on the payroll of a private security company. Terry Joe even beat up a 3-year old (and his mother, when she tried to intervene). NYPD Blue’s Andy Sipowicz was once described by Jason Gay of the Boston Phoenix as being a “drunken, racist goon with a heart of gold.” Had Jason described Terry Joe, he would just shortened the description to one word: “goon.”

Terry Joe’s highjinks were finally too much for Putnam County. First, he was fired by the Sheriff for beating some prisoners and giving cigarettes to others, then fired from the Plainfield Juvenile Correctional Facility for beating two juveniles and lying about it, then fired by Putnam County for the “ghost employment” incident, and finally fired again by the Sheriff (who, incredibly enough, had rehired him) for the fist and knee incidents.

putnam170623But nobody charged him criminally until the Feds came along, and a jury convicted him under 18 USC 242 of violating defendants’ rights under color of law. With a Guideline sentence of 33-41 months, the federal judge found Terry Joe had had a rough childhood, he was a hard worker, and the community supported him (at least, the ones he hadn’t made crap on themselves). Terry Joe got 14 months.

The 7th Circuit threw out the downward variance from the Guidelines as being leniency not supported by the record. The Circuit said,

although a sentence that low need not be unreasonable, the farther a judge strays from the guidelines range, “the more important it is that he give cogent reasons for rejecting the thinking of the Sentencing Commission.” We took issue with the court’s conclusion that Smith was unlikely to re-offend if he addressed his anger management issues. Nothing in the record described the anger management program that Smith was required to undergo as a condition of supervised release and there was reason to question the efficacy of such an undefined program in light of Smith’s history of violence and bizarre conduct towards the victims of his offenses of conviction.

bully170623The case went back to the district court, and by the time Terry Joe was resentenced, he had done his 14-month bit. At the resentencing, Terry Joe gave the judge an extended sob story about how hard prison was, how rubbing shoulders with other inmates gave him new-found respect for the people he used to beat up, and that he now knew that defendants (like himself) should be given short sentences. The district judge, no doubt shedding a tear, tiptoed through the sentencing factors of 18 USC 3553, and gave Terry Joe the same 14 months:

I do not see any benefit in reincarcerating Mr. Smith. His anger control counseling would be interrupted. He will lose his job again. He will also disrupt the stability of his children, whom I assume have now adopted [sic] to having him back in the home.

On Monday, the 7th Circuit threw up its hands, threw out the sentence, and threw the case over to a new judge. The appeals court held the district judge erred procedurally by failing to adequately explain or justify the significantly below-guidelines sentence that he rendered. The district court relied on guidelines section 5K2.10, which lets a court depart downward if “the victim’s wrongful conduct contributed significantly to provoking the offense behavior.” But the district court made no finding that the detainees beaten by Terry Joe had done anything (other than be arrested) to “provoke” the bully deputy. “Nor,” the Circuit said, “did the court consider the factors set forth in the guidelines policy statement, such as the relative size and strength of the victim compared to the defendant, the persistence of the victim’s conduct, efforts by the defendant to prevent the confrontation, and the proportionality and reasonableness of the defendant’s response to the victim’s provocation, among other things.”

The 7th said Terry Joe’s crimes were plain vanilla “excessive force” crimes, and nothing about the “nature and circumstances” of the offense justified cutting Terry Joe a break. Terry Joe went to trial and never accepted responsibility for his conduct. Terry Joe tried at resentencing to “take ownership” of his crimes, but he did so without ever expressing remorse for, or even mentioning, the victims.

The appellate panel said

On release from prison, Smith reunited with his family, which continues to support him. He once again became employed, and began an anger management program. He completed his sentence without conduct violations. These are laudable, positive signs but Smith still has not admitted the conduct underlying his conviction or expressed remorse for the harms he caused. This relatively minor evidence of rehabilitation must be assessed in light of Smith’s history and characteristics. The government’s accounting of Smith’s appalling history includes an attack on a three-year-old child that left the child bruised and bleeding; an attack on that child’s mother when she tried to intervene to protect the child; unprovoked, premeditated beatings of two juveniles in custody followed by lies about the incident in the official record; other abuses of power over inmates at another facility; and the dishonest behavior of clocking in at two jobs at the same time. At the first sentencing, the court acknowledged that these prior incidents brought to light by the government came in “uncontroverted.” Smith has not challenged the government’s description of his history of violence and dishonesty. If there is a rationale to support a sentence that is less than half the low end of the guidelines, it is not apparent in the record here.

animalfarm170623The panel ended the decision with a cryptic note that “Circuit Rule 36 shall apply on remand. “ Seventh Circuit Rule 36 requires assignment to a different judge if a case is remanded for a new trial, but does not normally apply where the remand is for resentencing. That the Circuit ordered reassignment to another judge suggests the extent to which the appellate court believed that this judge was so predisposed to be lenient because the defendant had been a cop that he could not be trusted to follow the appellate court’s instructions.

All defendants are equal, but some defendants – like cops – are more equal than others.

United States v. Smith, Case No. 16-2035 (7th Cir., June 19, 2017)

– Thomas L. Root


Lies, Damn Lies & Statistics: the AG Speaks – Update for June 21, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

A little more than a week ago, Attorney General Jefferson Beauregard Sessions III took to the pages of the Washington Post to defend his May 10th tough-on-crime memorandum.  The reviews are in, and they are not pretty.

In 2013, former Attorney General Eric Holder ordered federal prosecutors to decline to pursue mandatory minimum sentences for drug offenders who didn’t use violence, were not leaders or organizers of the drug operation of which they were a part, had no ties to large-scale drug operations or gangs, and had no significant criminal history. If the drug defendant rang all of those bells, Holder directed that “prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence.”

As for sentencing, Mr. Holder directed that prosecutors be “candid with the court, probation, and the public as to the full extent of the defendant’s culpability, including the quantity of drugs involved in the offense and the quantity attributable to the defendant’s role in the offense, even if the charging document lacks such specificity. Prosecutors also should continue to accurately calculate the sentencing range under the United States Sentencing Guidelines. In cases where the properly calculated guideline range meets or exceeds the mandatory minimum, prosecutors should consider whether a below-guidelines sentence is sufficient to satisfy the purposes of sentencing as set forth in 18 U.S.C. § 3553(a).”

Now look at how Mr. Sessions interprets those passages:

“In 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. Prosecutors were required to leave out objective facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs. The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent. Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.”

Ah, where to start?

violence160110How about with Mr. Session’s implication that the 2013 Holder memorandum led to an increase in violent crime? Is that so? Well, just as Bill Clinton famously said that it depends of what the meaning of ‘is’ is,” the first question has to be that it depends on the meaning of “violent crime.”

Mr. Sessions says that drug trafficking is “violent crime.” But the FBI does not. The G-men (and -women) issued the violent crime statistics that Mr. Sessions says show an uptick in violent crime in 2015 (back to 2012 levels) The AG’s right about that much, but among the mayhem included in the FBI’s definition of “violent crime” – murder, rape, robbery and aggravated assault – you won’t find drug trafficking. So the Holder memorandum – which primarily addressed drug trafficking – did not lighten up on the kind of “violent crime” that Mr. Sessions cited in the statistic.

Sure, you say, but did not he argue that drug trafficking led to such violent crime, citing the need to use a gun to collect drug debts because the courts were closed to people trading in illegal commodities? He did do so, but if you want to be completely fair, possession of a gun is just as important to a gang shootout over drug debts as is the debt itself. So consider this:

  • In 2014, the first full year the Holder memorandum was in effect, the average drug sentence was 57 months. This means that someone beginning that average sentence on January 1 would not be released until about January 1, 2018. In other words, shorter sentences beginning in 2014 could not account for an increase of violent crime in 2015.
  • While we’re at it, note that Mr. Sessions blames the 2013 Holder memorandum for the fact “that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent. Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009to 2016.”
§ 924 tacks a few years onto a sentence for carrying a gun during a violent or drug crime.
The statistics say the Feds are already doing more to get guns off the streets.

It’s pretty basic science to observe that when you’re measuring the effect of a certain event, you measure the change that occurred after the event, not the change that occurred before and after the event.

Several commentators have pointed to other logical legerdemain Mr. Sessions employed in his screed. Jacob Sullum at Reason.com noted that

The violence associated with the distribution of currently banned drugs does not demonstrate that the business is inherently violent, any more than the violence associated with liquor distribution during alcohol prohibition showed that selling whiskey is inherently violent. The violence is a product of the prohibition policy that Sessions avidly supports, as he himself implicitly concedes in the next two sentences.

“If you want to collect a drug debt,” Sessions writes, “you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun.” And why is it, exactly, that drug dealers cannot avail themselves of the same legal, peaceful methods of dispute resolution that today’s alcohol merchants routinely use? Only because their business remains illegal, malum prohibitum, just as the booze business was from 1920 to 1933.

Radley Balko at the Washington Post notes that “if pot retailers in Colorado, Washington and the other legalization states need to collect on a debt today, they do what any other retailer does. They use the legal system. If Sessions had his way, pot dealers in these states would to back to collecting debts ‘by the barrel of a gun’.” So the answer to this lessening of violence is to shut down legal marijuana sales, firing up the black market once again?

drugdealer160922Mr. Sessions’ answer to that is that even legal, the sales of marijuana is a “deadly business” because of the “approximately 52,000 Americans who died of a drug overdose in 2015.” But as Mr. Balko points out, “about 18,000 of those deaths  involved prescription opioids, which are legally available. About 8,000 involved benzodiazepines, which are also available legally. Both of those types of drugs are made by pharmaceutical companies, prescribed by doctors and sold by pharmacies. Does Sessions believe those are all inherently violent industries? The Journal of the American Medical Association estimates that 88,000 people die each year from alcohol-related deaths. Does Sessions believe that Anheuser-Busch, Diageo and E & J Gallo run “deadly businesses”? What about the 480,000 people who die each year from smoking? Is tobacco a “deadly business”?”

About 125 years ago, Benjamin Disraeli is said to have observed that “there are three kinds of lies: lies, damned lies, and statistics.” Mr. Sessions’ Washington Post defense of his get-tough-on-crime memo scores a hat trick.

Washington Post, Here are all the ways Jeff Sessions is wrong about drug sentencing (June 20, 2017)

Reason.com, Read Jeff Sessions’ Utterly Illogical Defense of Tough Drug Sentences (June 20, 2017) 

Human Rights Watch, Q & A: US Attorney General Jeff Sessions’ Policy Change on Sentencing (June 20, 2017)

– Thomas L. Root


Supreme Court Strikes Down Internet Restrictions for Sex Offenders as Too Broad – Update for June 20, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


There may be nothing easier for a legislator than to enact laws that punish and restrict people convicted of sex offenses. Who’s going to complain? The sex offenders? Well, sure, but who cares what they think?

Some types of offenses are just too offensive. Today, it's kiddie porn... tomorrow, it may be jaywalking. That's why we have laws, to save us from the Flavor of the Day.
Some types of offenses are just too offensive. Today, it’s kiddie porn… tomorrow, it may be jaywalking. That’s why we have laws, to save us from the Flavor of the Day.

It turns out that the Supreme Court cares. North Carolina wanted to be sure sex offenders lacked access to “vulnerable victims,” that is, kids. So far, so good. States may “enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime,” as the Court put it yesterday. But North Carolina – as legislatures are wont to do – went too far.

The Tarheel State passed a law that prevented anyone on the sex offender registry from using any Internet site that permitted minors to have accounts. Offenders like Lester Packingham, who at age 21 had sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he beat a traffic ticket, and took to Facebook to thank God for his triumph. A police officer saw his post, and saw to it that Lester was convicted of a felony for using Facebook.

files170620We confess that we can think of any number of people who should be convicted of felonies for what they post on Facebook, but the North Carolina statute seemed to be killing flies with a sledgehammer. Lester did, too, and took his lament to the Supreme Court. Yesterday, the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

Justice Kennedy, in his usual sweeping style, wrote for a unanimous court that the North Carolina statute went too far, , because it stifles “lawful speech as the means to suppress unlawful speech.” By barring sex offenders from using social-networking sites, he argued, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” “In sum,” Kennedy concluded, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

Justice Kennedy wrote,

Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers ‘relatively unlimited, low-cost capacity for communication of all kinds,’ to users engaged in a wide array of protected First Amendment activity on any number of diverse topics. The Internet’s forces and directions are so new, so protean, and so far-reaching that courts must be conscious that what they say today may be obsolete tomorrow. Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

The Justice took a direct swipe at legislators who think that no restriction is too harsh where sex offenders are concerned: “Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people, and that a legislature may pass valid laws to protect children and other sexual assault victims. However, the assertion of a valid governmental interest cannot, in every context, be insulated from all constitutional protections.”

facebook170620Justice Samuel Alito, in a concurring opinion that was joined by Chief Justice John Roberts and Justice Clarence Thomas, agreed with Kennedy – to a point. Justice Alito acknowledged that states have an interest in protecting children from abuse, writing that  “it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.” But, he noted, the North Carolina law under which Packingham was convicted must ultimately be deemed unconstitutional because it also bars sex offenders from gaining access to “a large number of websites” – including, but not limited to, Amazon, The Washington Post, and WebMD – “that are most unlikely to facilitate the commission of a sex crime against a child.”

felonies170620Having said that, however, Alito disputed any suggestion that cyberspace is “the 21st century equivalent of public streets and parks” over which states had “little ability to restrict the sites that may be visited by even the most dangerous sex offenders.” Arguing that “there are important differences between cyberspace and the physical world,” Alito disapproved of what he described as Kennedy’s “loose rhetoric” and “undisciplined dicta” in the majority opinion.

The opinion will provide considerable support to federal prisoners whose terms of supervised release contain sweeping limitations on Internet access.

The Supreme Court has 12 cases yet to decide before the end of next week, including

Sessions v. Dimaya (formerly Lynch v. Dimaya) (does Johnson apply to 18 USC 16(b)?)

Lee v. United States (ineffective assistance of counsel);

Turner v. United States (Brady evidence case);

Weaver v. Massachusetts (ineffective assistance of counsel);

Maslenjak v. US (loss of citizenship over immaterial false statement); and

Davila v. Davis (does ineffective assistance of habeas counsel overcome defaulted ineffective assistance of appellate counsel claims?)

The Supreme Court will issue more opinions on Thursday, June 22, 2017

Packingham v. North Carolina, Case No. 15-1194, reversed 8-0, 3 concurrences

– Thomas L. Root


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