Staircase Wit in the 2nd Circuit – Update for August 11, 2016

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WHY DIDN’T I THINK OF THAT EARLIER?

Lesprit160811Have you ever been bested in a debate or argument, or even just a heated discussion, only to come up with a devastatingly witty riposte about 10 minutes too late? The French call it esprit d’escalierliterally “staircase wit.”

That’s what happened to George Torres. After a murder conviction, he argued enthusiastically and at length for relief under 28 U.S.C. § 2255. When that motion failed, he filed for appeal, but then suddenly thought of a killer argument. The government could not have ever prosecuted him, he contended, because the statute of limitations had expired. That meant the court lacked jurisdiction, and therefore the government had committed a fraud on the court.

It’s a great argument, except that (1) the statute had not expired; (2) even if it had, an expired statute of limitations would not divest a court of subject matter jurisdiction; (3) even if it did, filing an action over which the court lacks jurisdiction does not constitute fraud on the court; and (4) he should not have waited until after the 2255 motion to come up with it. Alas, esprit d’escalier does not excuse raising a new issue late.

Fraud160811To George, these were just details. He filed a rather obscure but perfectly usable motion under F.R.Civ.P. 60(d)(3), alleging that the government had committed a fraud on the court by trying to prosecute him.

A 60(d) motion is useful, principally because – unlike a 60(b) motion – there are no time limits on it. But calling it a 60(d) did not make it so to the court, which quickly held that the argument was meritless. George promptly appealed.

The 2nd Circuit held earlier this week that it would treat the 60(d) motion just as if it were a 2255 motion itself, and require a certificate of appealability in order for George to pursue the argument in the appellate court.

The Circuit Court said, “We addressed a nearly identical question in Kellogg. In Kellogg, we explained that, because an order denying a Rule 60(b) motion is a “final order,” the plain text of § 2253(c)(1) makes the COA requirement applicable to an order denying a Rule 60(b) motion in a habeas proceeding under § 2254. The same principle applies here: because an order denying a Rule 60(d) motion is a final order, § 2253(c)(1)’s COA requirement applies to an order denying a Rule 60(d) motion in a § 2255 proceeding. Indeed, it would be inconsistent to apply the COA requirement in the Rule 60(b) context, but not the rule 60(d) context. Rule 60(b) and Rule 60(d) serve a similar purpose: to allow district courts, in appropriate circumstances, to grant relief from a judgment or final order.”

The Court then gave Torres’ argument all of the attention it deserved, which is to say it denied a COA in one short sentence.

Torres v. United States, Case No. 16-124 (2nd Cir.  August 9, 2016)

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The Emperor Has No Clothes – Update for August 10, 2016

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STING ON THE CHEAP

Over the past decade, ATF agents have grown to love the “stash house robbery” sting. And why not? It’s economical – you don’t need a real “stash house” or any real drugs – and you don’t have to catch anyone actually committing a substantive crime. What’s more, slamming defendants with staggering sentences is a breeze.

Here’s how the sting works. The ATF agent starts with an informant, who introduces an undercover agent to some “homies” (and, make no mistake, “stash house robbery” sting defendants are overwhelmingly poor and black). The undercover agent tells the boys in the ‘hood about a “stash house” he knows of containing five, 10, even 20 or more kilos of cocaine, and convinces them show up at a specific time and place with guns to rob the place. The defendants are enticed: it seems like easy money, a lot of easy money. They all show up at the staging area, agents arrest them, and they get charged with a drug possession conspiracy and gun offenses. Mandatory minimum sentences usually start at 20 years.

clothes160516Earlier this week, a Philadelphia federal court finally declared that the “stash house” Emperor has no clothes. District Judge Gerald McHugh refused to sentence Clifton McLean to a mandatory minimum 25 years for his role in a stash house robbery conspiracy that turned out to be an ATF sting. McLean, recruited by an ATF informant, was all too willing to participate in the robbery, but it was the ATF undercover who decided that the fictional “stash house” contained five kilos of coke, which happens to be exactly the amount needed to trigger a 10-year mandatory minimum sentence.

The government argued that pretending there was at least five kilos was necessary to make the scam seem believable (and thus protect the agent from suspicion it was a setup). Judge McHugh was skeptical: “Law enforcement’s tactical concerns should not control either the severity of charges against a defendant or the range of sentences. To the extent that the Government constructs a crime, its elements should be related to a defendant’s culpability. Here, where the record is clear that McLean was ‘in for a penny, in for a pound’, specifying such a high amount does not truly bear on his culpability. Once the Government established that McLean was willing to engage in an armed robbery of any quantity large enough to resell, its core law enforcement objective was met.”

Drug quantities drive both mandatory statutory sentences and the guidelines. The greater the quantity, the greater the crime. Agents and prosecutors figured out long ago that with conspiracies, actual drugs weren’t necessary, either – what defendants intended to do was all that mattered. The government obliged, driving the defendants’ intent with fanciful stories of drug riches beyond their dreams.

sting160810In this case, Judge McHugh held that “imposing the sentence prescribed for the quantity of cocaine charged would violate McLean’s constitutional right to Due Process of Law on the facts of this case.” Instead, the court sentenced McLean to two of the three mandatory minimums that otherwise applied, not accepting that five kilos was really involved. In his 29-page decision, the Judge explained that “a sting operation that constructs a crime implicates liberty interests in a unique way, in that the Government seeks out its citizens for the purpose of testing their willingness to commit a criminal act. There can be no greater manifestation of the coercive power of Government than creating what is, in effect, a morality test, while specifying the penalty for failing that test in advance. There is a legitimate and compelling interest in combatting violent crime and narcotics trafficking, but given the implications for liberty when the Government custom designs both crime and punishment, the prosecution that follows should be narrowly tailored so as not to exceed its genuine law enforcement interest.”

United States v. McLean, Case No. 13-CR-487 (E.D.Pa. Aug. 8, 2016)

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Serendipity for Serendipity – Update for August 9, 2016

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SERENDIPITY FOR JAILHOUSE LAWYERS

jailhouselaw160809The dictionary defines “serendipity” as the faculty or phenomenon of finding valuable or agreeable things not sought for.  When inmate Serendipity Morales set out to help a few fellow prisoners with some legal matters, she never suspected the trek would end in the state Supreme Court, with her carving out an exception to state law.

However, late last week, the Vermont Supreme Court ruled last Friday that state inmate Serendipity Morales, a “jailhouse lawyer” who had been brought up on charges that she was engaged in the unauthorized practice of law, had committed no crime in helping her fellow prisoners with legal matters.

The Court concluded that there was no probable cause to prosecute her on the six counts (and yes, it is a crime in Vermont). The State had alleged that five inmates had heard Morales was familiar with the legal process, and so they obtained her help in preparing legal filings on their behalf. She did not sign the pleadings herself, and she neither or accepted any payment for her help. (We have a little trouble believing this last one, and we figure her locker had all the commissary items she could ever want, but because paying anything to or receiving anything from another inmate is forbidden, we doubt anyone admitted to it). The State admitted Morales never signed pleadings on behalf of the other inmates or told anyone she was a lawyer herself.

SafariScreenSnapz001The Court cited some Vermont precedent for nonlawyers providing legal advice to companies they worked for and nonlawyer child support workers appearing in court. But central to its creation of a “Morales exception” was that “’jailhouse lawyers’ who give legal assistance to fellow inmates but are not themselves licensed or formally law trained, are a well-established fixture in the justice system,” and that “incarcerated inmates face particular challenges in accessing legal advice, and those challenges raise serious public policy, and in some circumstances, constitutional concerns.”

The Court said that “although there may be some limits on the ways in which an inmate can give legal help to another, we are wary of adopting a definition of unauthorized practice of law that would subject individuals to a finding of criminal contempt for engaging in conduct that has been tolerated and arguably even supported by the State.”

In re Serendipity Morales, Case No. 2016-043 (Supreme Court of Vermont, August 4, 2016)

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Yeah, It’s Nice… But Not That Nice – Update for August 8, 2016

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LISAStatHeader2small LOOKING AT A GIFT HORSE

As we reported, President Obama commuted the sentences of 214 federal prisoners last Wednesday. At least 67 of them were serving life sentences, many of those for nonviolent drug crimes. The White House brags that Obama has now granted 562 commutations, more than “the previous nine presidents combined and more commutations than any individual president in nearly a century.”

Gifthorse160808This is true, but rather misleading. First, while he’s granted a record number of commutations, he’s only issued 70 pardons so far, fewer than any president in the past 120 years. At an average of seven pardons or commutations per month in office, Obama’s numbers are still well under historic norms for most of the 20th century.

The latest commutations are welcome news for criminal justice reform groups. But Obama’s 562 commutations and 70 pardons represent about one-third of 1 percent of the total federal prison population. Only about 25% of the estimated 2,000 inmates meeting clemency criteria have had their petitions granted, and time is very short.

Speaking of no time, The Hill said of the Sentencing Reform and Corrections Act of 2015 last last week that “clearly, the clock is ticking, with little time left on the political calendar this year. Both Senator Grassley and House Speaker Ryan have indicated that they would like to bring the bill to the floor after Labor Day. With a Congress that has been widely disparaged as unable to address serious concerns, enacting sentencing reform would begin to help repair that image while bringing a measure of rationality and compassion to thousands of citizens behind bars.”LISAStatHeader2small

Quarreling Jurists in Atlanta Argue Second-and-Successives – Update for August 6, 2016

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FAMILY FEUD

The 11th Circuit easily has been the most dysfunctional federal circuit when it comes to granting permission to inmates for second-and-successive 2255 motions under Johnson v. United States. The Circuit has spawned more reported decisions on the subject, and those have rarely been shining examples of judicial thought. Earlier this week, three-judge panel issued a decision granting leave for a second-and-successive which was notable for its unbridled criticism of a similar decision of another three-judge panel.

Inmate Devon Chance was given permission to challenge some or all of his many 18 U.S.C. § 924(c) convictions (he got 1,794 months for a string of armed robberies) on the grounds that the “crime of violence” definition in the statute – which contains a residual clause – is unconstitutional after Johnson. That decision alone was hardly remarkable. But what followed was.

The Court complained that “although our published opinions repeatedly have emphasized that the district court is to consider § 2255 motions de novo, in the whirl of orders addressing Johnson, a recent published order [In re Moore] from this Court discussed in dicta what districts courts purportedly ‘must’ do in adjudicating Johnson claims in § 2255(h) motions. The Moore panel acknowledged that ‘the district court is to decide the § 2255(h) issues fresh, or in the legal vernacular, “de novo”.’ But in the very next sentence, the Moore panel seemed to contradict that instruction by telling the district court that it ‘must decide whether or not Moore was sentenced under the residual clause in 2000’.” The panel then added ‘one further thought,’ also in the form of a command about what the district court can and cannot do: that ‘the district court cannot grant relief in a § 2255 proceeding unless the movant… proves that he was sentenced using the residual clause’.”

The Chance decision noted acidulously that “not only is Moore’s dicta just that – dicta – but it also seems quite wrong. Of course,” the Chance court said, “we recognize that what we are about to say has no more legal force than the Moore panel’s commentary (that is: none)… but we think Moore is wrong, for two reasons. First, it implies that the district judge deciding Mr. Chance’s upcoming § 2255 motion can ignore decisions from the Supreme Court that were rendered since that time in favor of a foray into a stale record. Assuming that Johnson does apply to § 924(c)’s “very similar” residual clause, then district courts must determine “‘categorically’–that is, by reference to the elements of the offense, and not the actual facts of [the defendant’s] conduct” — whether that offense qualifies as a crime of violence… In applying the categorical approach, it would make no sense for a district court to have to ignore precedent such as Descamps v. United States and Mathis v. United States, the Supreme Court’s binding interpretations of that approach. And yet, the Moore panel suggested that the sentencing court must ignore that precedent unless the sentencing judge uttered the magic words “residual clause.”

“There is a second problem with Moore’s command that an inmate must prove whether the district court used the words “residual clause” at his potentially decades-old sentencing. Nothing in the law requires a judge to specify which clause of § 924(c) — residual or elements clause — he relied upon in imposing a sentence…”

“Critically,” the Chance decision said, “when an inmate asks a court of appeals to certify a second or successive § 2255 motion, § 2255(h) is our sole source of authority to do or say anything in the case. That means any discussion of topics beyond ‘the § 2255(h) issues’ is irrelevant to a case and therefore dicta.”

In re Chance, Case No. 16-13198 (11th Cir. August 2, 2016)

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Doc Gets New Trial For ‘Pants on Fire’ Counsel – Update for August 5, 2016

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NEWSFLASH: 6th CIRCUIT SAYS LAWYERS SHOULDN’T LIE

feelgood160805The government accused Dr. Steve Arny of really being “Doctor Feelgood,” distributing pain meds to his patients willy-nilly, without any legitimate medical basis for doing so. Dr. Arny – a retired military M.D. who had hired on at a pain clinic because he wanted something to do – said while he was not a certified pain management doc, he had followed the practices of the prior pain management physician and made reasonable medical judgments.

A jury disagreed, convicting him of conspiracy to distribute controlled substances “outside the course of ordinary medical practice.” Thinking his defense had been sub-par, Dr. Arny hired new lawyers, who asked for a new trial based on his former lawyer’s ineffectiveness. The district court agreed. The government appealed.

Earlier this week, the 6th Circuit upheld Dr. Arny’s right to a new trial. The Circuit held that ineffective assistance of counsel, an issue usually raised in a post-conviction motion, can provide a basis for a F.R.Crim.P. 33 new trial motion, and it certainly did in Dr Arny’s case.

Before trial, the doc urged his lawyer to call as a witness the Dr. Saxman, the former pain physician, who had not been charged and in fact was still handing out pills at another clinic. His lawyer refused to subpoena her or even talk to her, telling Dr. Arny that Saxman was about to be indicted herself, and her new clinic had been raided.

pantsonfire160805It turned out his lawyer was making it up: Dr. Saxman was not being investigated, had not been raided, was not about to be indicted, and – had the lawyer cared to interview her – would have said she prescribed pills within the normal course of medical practice and Dr. Arny’s following her lead was fully justified. Her testimony would have given Dr. Arny’s case a real boost.

The government called a few of Dr. Arny’s former patients who were addicts, in order to show that he was dispensing painkillers to drug abusers. The doc begged his lawyer to interview other former patients whose stories would have painted a different picture of a caring, careful physician. His lawyer, however, didn’t bother to talk to any of his former patients. Yet after trial, it only took Dr. Arny’s new lawyers four days to come up with six affidavits from former patients whose testimony, the Court found, would have helped his defense.

Dr. Arny’s original lawyer argued that his failure to call Dr. Saxman was sound strategy, because her patient exam practices were better than Dr. Arny’s. The 6th Circuit rejected this. While a lawyer’s reasonable trial strategy will usually not be second-guessed, the Court said, because Arny’s lawyer did not bother to interview Saxman, “Arny was left without her potentially powerful testimony.” It’s true, the Court said, that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” but Arny’s trial counsel failed to make a reasonable, thorough investigation of Saxman’s potential testimony. “Therefore, trial counsel’s decision could not constitute a reasonable ‘strategic choice’.”

lie160606Likewise, the Court said, the failure of Arny’s lawyer to interview former patients was not strategic – “rather, it stems from neglect.” An attorney does not have to interview all potential witnesses, but he or she is required to investigate fruitful leads that a reasonable attorney would pursue. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” the Court said, but such choices made after incomplete investigation are reasonable only to the extent that the lawyer’s reasonable judgment supports the limited investigation. The choice by his lawyer not “to investigate and interview some of Arny’s former patients was an unreasonable decision, which led to the uninformed decision not to call any of Arny’s other patients to testify.”

The attorney’s lie to Dr. Arny that Saxman was about to be indicted wasn’t even close. The Court held it is ineffective assistance for a lawyer to lie to a client.

Concluding that testimony from Saxman and Arny’s former patients who had not been interviewed would have had a genuine impact on the jury, the 6th Circuit upheld the district court’s grant of a new trial to Dr. Arny.

United States v. Arny, Case No. 15-6130 (6th Cir. August 1, 2016)

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President Commutes Another 214 – Update for August 4, 2016

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PRESIDENT GRANTS 214 MORE CLEMENCY PETITIONS

President Obama commuted the sentences of 214 federal prisoners on Wednesday — the most commutations issued by a president in a single day since at least 1900 — according to White House officials.

compassion160124The commutations are the latest in a series of such clemency grants issued by Obama since his 2014 announcement of a review process to address those serving harsh sentences to which they would not be subjected if convicted today. With the help of the Clemency Project – a volunteer group of attorneys – began to grant a string of commutations a year ago.

“This is a good day — not just for the 214 individuals who are getting a hard-earned second chance, but for the people at the White House and the Department of Justice and at advocacy organizations across the country who work every day to remedy injustices in our sentencing laws,” White House counsel Neil Eggleston was quoted as saying. “We’re going to keep our foot on the gas pedal when it comes to reviewing applications for clemency, but we are also going to need leaders in both parties in Congress to pass long overdue reforms to our criminal justice system to achieve lasting change on the scale that is needed.”

Including yesterday’s commutations, Obama has granted a total of 562 commutations.

Notably, the commutations included no crimes of violence, no white-collar cases (except a single count of identity fraud connected to drug trafficking), and no sex-related offenses. Based on clemency grants over the past year, it appears unlikely that the Administration has any interest in commutations that are not drug-related.

Most sentences affected in yesterday’s announcement were reduced to release on December 1, 2016.  A few of the life sentences were cut to 240 months or 360 months.  In a handful of cases, commutation was contingent on the inmate entering a drug treatment program. Seventy of the 214 commutations were of life terms.

clock160620Despite yesterday’s mass commutation, a backlog remains with under six months until Obama’s term ends. Marc Osler, a law professor and co-founder of the Clemency Resource Center at New York University law school, said in a statement, “While the commutations President Obama granted today are an important step forward, they remind us of how much more work this administration has to do if it is to grant relief for every person eligible… More than 1,500 people are eligible for commutation under the criteria the administration established, but at the current pace, they will fall far short of meeting that threshold. These non-violent offenders have been promised a full review and relief, and they deserve nothing less. We again urge the president to speed up his administration’s review of the petitions it has received and to consider whether there are structural changes to the process that would ensure justice is done for every worthy petitioner.”

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The Defense Snorts – Update for August 3, 2016

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WHO’S THE DOPE?

lineofcoke160803It should have been a drug user’s legal “dream team.”  Frank Christopher, charged with cocaine distribution, was assigned an attorney who – according to Frank – snorted coke with him something like over 20 times before and during trial. That was the good part. The bad part, Frank said, was that while the lawyer was high, he convinced Frank to reject a 30-month plea deal in favor of trial, which Frank lost.  He got 120 months.

From prison, Frank wrote to his judge complaining that counsel was a cokehead, and had given him bad advice. The district court took the letter to a § 2255, but rejected it without a hearing, finding no prejudice. The Court of Appeals reversed, and sent it back for a hearing. After a 90-minute evidentiary hearing, the district court found that the lawyer had not used cocaine with his client, and threw out the 2255 motion again.

Last Monday, the 6th Circuit Court of Appeals upheld the dismissal. The governing rules are pretty clear: when a trial judge hears live testimony, and selects which witness’s story to believe and which to discount, the decision is pretty much bulletproof. And that’s what happened here.

“Faced with starkly different views of the facts,” the 6th Circuit said, “either one of which has ample evidence to support it, the factfinder’s choice between them cannot be clearly erroneous. In he-said, he-said cases like this one, that means the factfinder does not clearly err in picking one “he” over the other so long as there is support for each account. That is this case… Judge Edmunds stood on firm ground in making this choice. As we recognized in ordering the evidentiary hearing, Judge Edmunds was “in the best position to gauge Christopher’s credibility. And she, not we, had the opportunity… to observe [the attorney] through the pretrial proceedings and the trial. While we review transcripts for a living, she assesses live witnesses for a living, and we must account for this ring-side perspective when reviewing a trial judge’s findings of fact.”

coke160803The outcome of this case is a little troubling. Certainly, the evidence suggested that Frank was right. One witness said previously, he had paid the lawyer’s fee in cocaine. Another witness thought he had seen the lawyer using cocaine while representing Christopher, but he admitted his mind was a little fuzzy after a car accident. Frank’s testimony was detailed, and starkly different from the lawyer’s. But the appellate court gave the district judge the deference normally accorded in credibility cases.

The Court of Appeals said, “Once we accept the lawyer’s version of events, that dooms Christopher’s § 2255 motion. It means [the lawyer] never did cocaine with Christopher. It means he reviewed the discovery materials with Christopher and explained that the government would be able to sustain their burden in the case. It means he discussed the plea deal with Christopher “at great length” and “attempted to induce him to plead.” It means he rendered effective assistance of counsel. And it means Christopher’s knowing and voluntary decision to go to trial should be respected, painful though the effects of that decision now may be.”

Christopher v. United States, Case No. 15-2027 (6th Cir.  August 1, 2016)

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Protecting Informants – Update for August 2, 2016

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YOU DIRTY RAT

No one likes a snitch, which is one of society’s abiding ironies given that so many people – up to two-thirds of all drug defendants – cooperate with the government to get a break on their sentences.

rat160802There are still some places – and you have a good idea where – in which informants may experience some pushback, like getting beaten up in the showers, getting their dogs shot, houses burned… that kind of thing. And, as with many things these days, the world of ratting out fellow defendants is changing because of the Internet.

We’re not just talking about whosarat.com (a real website –if you go to rats.com, you’ll end up at a Disney movie site). Instead, we’re referring to the ease with which people can access all sorts of court information that used to be hard to find. Anyone with a PACER account and a defendant’s name has all sorts of detailed information at hand about the case, the plea agreement, and often the cooperation that the defendant gave law enforcement.

The problem is so pervasive, evidently, that a committee of the Judicial Conference of the United States, the administrative arm of the federal judiciary, is calling on all federal trial judges to impose new secrecy rules that would uniformly shield information about cooperators from public view. In a June 30th letter sent to all federal trial judges and clerks, Judge William Terrell Hodges – a federal trial judge in Florida who chairs the Conference’s Committee on Court Administration and Case Management – said “the harms to individuals and the administration of criminal justice in this instance are so significant and ubiquitous that immediate and effective action should be taken to halt the malevolent use of court documents in perpetuating these harms consistent with each court’s duty to exercise ‘supervisory power over its own records and files.”

The problem is particularly acute in prison, Judge Hodges wrote, because “new inmates are routinely required by other inmates to produce dockets or case documents in order to prove whether or not they cooperated. If new inmates refuse to produce the documents, they are punished.” “If they are identified as cooperators after arriving in prison, in many cases the only effective protection available is to move the threatened inmate into a segregated housing unit or solitary confinement,” Judge Hodges wrote.

Currently, each district judge has a personal set of “local rules” designed to keep certain sensitive information out of public view. Some judges will consider motions to seal the records, allowing access only to prosecutors, defense attorneys and court clerks. Others have expansive secrecy provisions that hide a great deal from the public. Some have no hard and fast rules at all, but instead resolve informant issues as they arise.

snitch160802The Judicial Conference recommends that judges keep a sealed supplement in the record of each criminal case that would contain “documents or transcripts that typically contain cooperation information,” whether there was cooperation or not. After awhile, the theory goes, because all defendants had the same sealed file in their case docket, it would be impossible to tell who narc’ed out his brothers and sisters, and who did not.

Defense attorneys and free speech advocates say that the proposed new rules are bad for at least two reasons. First, they say, creating a sealed annex in every case could deprive the public and media of basic information that goes beyond the issue of cooperation. Second, new rules could have the perverse effect of making life even more dangerous for informants. The existence of a sealed supplement in each case file would mean every inmate was presumed to be a “snitch” unless proven otherwise. Lawyers could appreciate the nuance that everyone had a sealed file, so the file’s existence meant nothing, but this point may be a little too subtle for Snake up on D-Block to appreciate.

A Maine public defender argued that fellow inmates would “assume when it says sealed, this person is an informant.” The proposal, if implemented, “will multiply the number of inmates at risk exponentially without protecting anyone.” This same sealed supplement system now being pitched nationally once tried in Maine. It didn’t work and has been scrapped in favor of the more traditional case-by-case evaluation by judges and lawyers of how best to protect those at risk.

Marshall Report, Is the Internet endangering criminal informants? (August 1, 2016)
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No Legislation with Congress on Vacation – Update for August 1, 2016

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NOTHING NEW UNDER THE HOT AUGUST SUN


With Congress on summer vacation until next month, there is little to report about progress on sentencing reform legislation. As we reported last week, the House and Senate will not reconvene until after Labor Day, at which time there will be only 34 legislative days left in the year for the House, and 43 days for the Senate.

sun160801Senate Majority Leader Mitch McConnell (R-Kentucky) has not yet committed to bringing S. 2123 to a vote. According to the website Vermont Digger, Sen. Patrick Leahy (D-Vermont), last week said, “Congress has an historic opportunity to correct some of the worst injustices in our criminal justice system by approving the Sentencing Reform and Corrections Act. This bill is supported by a range of law enforcement and civil rights organizations and a clear majority of Senators. It will begin to bring fairness to our sentencing laws, and it will save us money that can be reinvested into our communities. When we return in September, I hope the Republican Leader will finally allow a vote on this important legislation.”

In the House, however, proponents of criminal justice reform are cautiously optimistic about prospects for a favorable vote to overhaul to the federal prison system before the end of the 114th Congress. Several bills, including the Recidivism Reduction Act of 2016 (H.R. 759) and the Sentencing Reform and Corrections Act (H.R. 3713), have passed the House Judiciary Committee with the support of Judiciary Chairman Bob Goodlatte (R-Virginia) and Ranking Member John Conyers (D-Michigan). House Speaker Paul Ryan has pledged to bring reform legislation to the floor for a vote this Congress.

clock160620H.R. 759 includes a number of training and systems changes for the DOJ. Specifically, it directs the BOP to complete a risk and needs assessment for each prisoner, to expand the effective programs it offers and add any new ones necessary to effectively implement the system created by the bill, to phase in the new programs according to a specified schedule, and to develop policies for the warden of each prison to enter into partnerships with specified nonprofit organizations, colleges, and private schools to expand such programs. Finally, it sets procedures for the transfer into pre-release custody of a prisoner classified as having a low risk of re-offending.

The bill is unlikely to pass Congress in the few days left this year. Any bill not passed this year disappears, and legislation has to begin fresh with the next Congress, starting in January 2017. Even if H.R. 759 would become law, a large number of inmates – those with violent offenses, sex crimes, computer crimes, and people with ACCA sentences – would not be eligible to participate.

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