Tag Archives: SORNA

The Short Rocket – Update for January 27, 2023

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rocket190620We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, the short rocket – decisions from around the federal circuits…

SOME CASE SHORTS

Timing is Everything: In 2015, Benny Hall pled guilty to conspiracy to commit Hobbs Act robbery and using a gun in a crime of violence, (an 18 U.S.C. § 924(c) offense). After the Supreme Court decided in United States v. Davis that conspiracy to commit a crime of violence was not itself a crime of violence that supported a § 924(c) conviction for using a gun in a crime of violence, Benny filed a 28 U.S.C. §2255 post-conviction motion asking that the § 924(c) be thrown out.

corso170112The government convinced the district court that Benny’s § 924(c) conviction didn’t depend only on the conspiracy, but also on his admissions in open court that established that he had actually attempted to commit the robbery.

‘Gotcha!’ the government cried.

‘Not so fast!’ the 2nd Circuit replied last week. Last summer, the  Supreme Court ruled in United States v. Taylor that an attempted Hobbs Act robbery is not a crime of violence. The Circuit threw out § 924(c) conviction and the mandatory 10-year add-on sentence it represented.

Hall v. United States, Case No 17-1513, 2023 U.S.App. LEXIS 1256 (2d Cir., January 19, 2023)
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11th Holds Drug Conspiracy Can’t Lead to Guidelines ‘Career Offender’: Brandon Dupree was convicted of a 21 U.S.C. § 846 drug conspiracy, and was hammered at sentencing as a Guidelines “career offender” (which dramatically increased the advisory sentencing range). An 11th Circuit panel rejected Brandon’s argument that an inchoate offense (that is, a mere plan to commit a crime) does not qualify as a “controlled substance offense” for purposes of the Guidelines ‘career offender’ enhancement.

brandon230127Last week, the full Circuit sitting en banc said, ‘Let’s go, Brandon,’ and reversed his ‘career offender’ sentence. The 11th ruled that “application of the enhancement turns on whether the ‘instant offense of conviction’ is ‘a controlled substance offense’ [under USSG] 4B1.1(a)… The plain text of 4B1.2(b) unambiguously excludes inchoate crimes. Dupree must be resentenced without application of the career offender enhancement.”

United States v. Dupree, Case No 19-13776, 2023 U.S.App. LEXIS 1183 (11th Cir., January 18, 2023)
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Channeling Your Inner Habeas: People are always asking why they can’t point out in their 18 U.S.C. § 3582(c)(1)(A) compassionate release motions that their sentences were wrongly calculated, that their lawyers were ineffective imbeciles, that something was very wrong with how they were convicted.

reallawyer170216Mike Escajeda was convicted of selling drugs and carrying a gun. After losing his direct appeal, Mike filed a compassionate release motion, arguing that the “extraordinary and compelling reasons” required by an 18 U.S.C. § 3582(c)(1)(A) compassionate release motion were that (1) his sentence exceeded the statutory maximum and (2) he received ineffective assistance of counsel. He even admitted in his motion that he had filed for compassionate release because he figured that he could not win relief under § 2255.

Last week, the 5th Circuit ruled that the habeas-channeling rule prevented Mike from raising 2255-type issues in a compassionate release motion. The Circuit said, “Congress provided specific avenues for post-conviction relief that permit prisoners to challenge the legality of their confinement in federal court… The Supreme Court has repeatedly held that by codifying these specific provisions, Congress required prisoners to bring their legality-of-custody challenges under [28 USC 2241, 2244, 2254, and 2255], and prohibited prisoners from bringing such claims under other, more-general statutes like 42 U.S.C. § 1983.

[A] prisoner cannot use § 3582(c) to challenge the legality or the duration of his sentence,” the 5th held. “Such arguments can, and hence must, be raised under [the habeas statutes]… Because Escajeda’s claims would have been cognizable under § 2255, they are not cognizable under § 3582(c).”

United States v. Escajeda, Case No 21-50870, 2023 U.S.App. LEXIS 1041 (5th Cir., January 17, 2023)
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DOJ SORNA Rule Blocked: The U.S. District Court for Central District of California last week issued a preliminary injunction blocking the Dept of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the 1st Amendment.

injunction230127The rule requires people who had been convicted of a sex crime to register as sex offenders in their state, even if the sex crime convictions have been expunged and the people are not allowed by the state to register. Because plaintiff John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible — “an affirmative defense,” Doe’s lawyer said, “that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require anyone to affirmatively prove his innocence when he had never been convicted.

Preliminary injunction, ECF 55, Doe v. DOJ, Case No 5:22-cv-855 (CD Cal., Jan 13, 2023)

Reason, A Federal Judge Says the DOJ’s Sex Offender Registration Rules Violate Due Process by Requiring the Impossible (January 19, 2023)

– Thomas L. Root

Is Another Gundy in the Wings? – Update for December 3, 2019

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

CHANGE IN THE WIND?

change191203The Supreme Court narrowly upheld a law last June that, in the dissenting words of Justice Neil Gorsuch, “hand[ed] off to the nation’s chief prosecutor the power to write his own criminal code.” Last week, Justice Brett Kavanaugh spoke up in support of Gorsuch.

The June ruling in Gundy v. United States, a case that centered on the Sex Offender Registration and Notification Act, required convicted sex offenders to register, check in periodically in person, and share personal information with the authorities. SORNA gives the Attorney General “the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.” In other words, Congress gave the AG a blank check when it came to dealing with the estimated 500,000 individuals whose convictions predate SORNA’s passage.

And that’s the issue, one that reaches far beyond SORNA: the delegation of legislative authority to a government agency. Gorsuch thought SORNA combined the lawmaking powers of Congress with the law enforcement powers of the executive, and then gave those combined powers to a single federal official. For the Supreme Court to let that outcome stand, Gorsuch argued, marks “the end of any meaningful enforcement of our separation of powers.”

Blank Bank and Credit Union cheque with space for your copy.Kavanaugh took no part in Gundy, leaving some court watchers to wonder abOut how he might have ruled. He answered that question last week in a statement on denial of certiorari in Paul v. United States, another separation of powers case. Kavanaugh praised “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine” in Gundy, noting that this “thoughtful” dissent “raised important points that may warrant further consideration in future cases.”

The future case has yet to arrive at the Supreme Court, but Kavanaugh’s statement nevertheless is good news for people suffering when the Bureau of Prisons interprets good time statutes, RDAP statutes and the First Step Act to achieve tortured results that are now accepted without question by courts.

Reason, Kavanaugh Joins Gorsuch in Fight To Revive Nondelegation Doctrine (Nov. 25)

Paul v. United States (Kavanaugh, J., concurring), 2019 U.S. App. LEXIS 35706 (Supreme Ct., Nov. 25, 2019)

– Thomas L. Root

Gundy Brings Forth a Mouse – Update for June 21, 2019

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

GUNDY – NO BANG BUT A WHIMPER

As soon as the Supreme Court announced yesterday that it had affirmed the 2nd Circuit by an 8-1 vote, I knew that the Justices had massaged the case – which was argued the first week of October 2018 – until they reduced the holding to something narrow enough that they could almost all agree.

mouse170706Petitioner Herman Gundy, a convicted sex offender, was convicted of failing to register under the Sex Offenders Registration and Notification Act. He had been convicted of the sex offense before SORNA passed, but Congress included in the bill a directive to the Attorney General to “specify the applicability” of SORNA’s registration requirements and “to prescribe rules for [their] registration.”

Under that delegated authority, the Attorney General issued a rule specifying that SORNA’s registration requirements apply in full to pre-Act offenders. This made Herman’s failure to register a crime. Both the District Court and the Second Circuit rejected Herman’s claim that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to essentially determine what act or non-act constituted a crime.

Gundy was considered to be a big case, because the laxity with which Congress has delegated authority to the Executive Branch to make crimes cuts a broad swath across the law. The DEA has the power to declare an analogue drug to be a controlled substance. The ATF has the power to declare a little bent piece of metal a “machinegun” because it can be inserted into an AR-15 to make it fire on full auto. In fact, there are over 1,500 regulations enacted by Executive Branch agencies that carry criminal consequences.

Many observers thought Gundy could be a watershed, a moment when the Court would finally say “enough” to the willy-nilly delegation of power without limits. The fact that SCOTUS has taken so long to decide an early-term case suggested that there was a lot of dissention among the Justices, and that the decision, when it finally came, would be a whopper.

No such luck. Instead the Justices parsed the history of SORNA, and found that Congress had always meant for SORNA’s registration requirements to apply to pre-Act offenders, based on the Act’s statutory purpose, its definition of sex offender, and its history. But Congress was afraid that registering so many people right away would not be feasible. SORNA, the Court said, created a “practical problem[ ]” because it would require “newly registering or reregistering a large number of pre-Act offenders.”

Congress therefore asked the Attorney General, who was already charged with responsibility for SORNA implementation, to examine the issues and to apply the new registration requirements accordingly.” On that understanding, the Court said, the “Attorney General’s role… was important but limited: It was to apply SORNA to pre-Act offenders as soon as he thought it feasible to do so.”

There, the Court said. The AG only did what Congress clearly wanted done. Problem solved.

can190620What really happened is the Court was able to find justification in this instance for the AG doing what he did, rather than addressing the broader question. (Of course, lurking beneath the surface was the unspoken fear that declaring anything that pummels sex offenders to be unconstitutional would unleash a maelstrom of media and social criticism of the Court). Whatever the reason, the Court’s punt leaves the broader delegation doctrine question, which is as important as it is dry, for another day.

Gundy v. United States, Case No. 17-6086 (Supreme Court, June 20, 2019)

CLOCKWATCHERS

Another SCOTUS decision yesterday was a sleeper, one I had paid scant attention to. But it is a useful holding nonetheless.

A lot of people who were unlawfully treated before and during their criminal cases, and may have good legal issues against the people responsible, end up getting shut out by the statute of limitations. That happened to Ed McDonough.

Ed was an election commissioner in Troy, New York. After questions arose, Youel Smith was specially appointed to prosecute a case of forged absentee ballots in that election. Ed became his primary target.

clockwatcher190620Ed alleged that Youel fabricated evidence against him and used it to secure a grand jury indictment. Youel tried the case, using the allegedly false evidence, Ed got a mistrial the first time, but an outright acquittal the second.

Ed sued Youel under 42 U.S.C. § 1983, asserting a claim for fabrication of evidence. The district court dismissed the claim as untimely, and the 2nd Circuit affirmed. The courts both held that the 3-year limitations period began to run when Ed learned that the evidence was false, which undisputedly occurred by the time Ed was arrested and stood trial.

The Supremes reversed, ruling for Ed. The fabrication claim was a lot like a malicious prosecution claim, and such a claim does not arise until the defendant is acquitted. To follow the lower courts’ holding would create practical problems in places where prosecutions regularly last nearly as long as — or even longer than—the limitations period. Criminal defendants, SCOTUS said, “could face the untenable choice of letting their claims expire or filing a civil suit against the very person who is in the midst of prosecuting them. The parallel civil litigation that would result if plaintiffs chose the second option would run counter to core principles of federalism, comity, consistency, and judicial economy.”

McDonough v. Smith, Case No. 18–485 (Supreme Court, June 20, 2019)

– Thomas L. Root

New-Found Respect for “Nondelegation Doctrine?” – Update for October 1, 2018

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

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FIRST MONDAY IN OCTOBER

The Supreme Court’s new year begins today and runs through next June. The term, known as October Term 2018, should begin with a bang for federal defendants.

newyear181001As we mentioned last week, the Supreme Court will hear arguments tomorrow in Gundy v. United States, a case which asks whether the Attorney General can lawfully be given the power by Congress to determine who has to register under the Sex Offender Registration and Notification Act.

How the Supreme Court decides Gundy could have sweeping implications. Since SORNA was enacted, 4,000 sex offenders have been convicted of federal sex-offender registry violations: the government argues that “many of those offenders who failed to register would go free” if the Court were to invalidate Congress’ delegation to Attorney General in SORNA. What’s more, there are “hundreds of thousands” of pre-SORNA offenders now covered by the Attorney General’s designation, and the Court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements.

Beyond sex-offender registration, the approach the Supreme Court takes in Gundy could affect many laws involving the administrative state. The nondelegation doctrine, which holds that Congress cannot delegate to the executive branch the power to declare that something is a crime or to specify the appropriate punishment, has been honored in the breach for well over 80 years, with federal agencies exercising increasing power to establish criminal offenses by administrative fiat. There was a time that the Supreme Court covered naked violations of the nondelegation doctrine with the fig leaf that such delegations were permissible as long as Congress furnishes a declaration of policy or a standard of action, “primary standards, devolving upon others the duty to carry out the declared legislative policy.”

perv160201In Gundy, the statute simply provides that “the Attorney General shall have authority to specify the applicability of the requirements of this subchapter.” 34 USC 20913(d). As the Cato Institute described it in a Supreme Court amicus filing, “He may require sex offenders to register based on the severity of their crime, the time since their conviction, or at random based on the first letter of their last names. He may consult the laws of the various states or various astrological charts. SORNA grants him “an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit. And disobedience to his order is made a crime punishable by fine and imprisonment.”

Broad delegations of authority to the executive branch form the foundation of modern regulatory government. But given a dissent from Justices Scalia and Ginsburg (who, although good friends, were truly the odd couple in the same dissent) in Reynolds v. United States, a recent concurrence by Justice Thomas in Department of Transportation v. American Association of Railroads, and a Justice Gorsuch dissent from his time on the 10th Circuit in United States v. Nichols, a case involving SORNA, it is quite possible that Gundy will revive the nondelegation doctrine from its 80-year slumber.

A "train wreck" for eh administrative state?
                                                 A “train wreck” for the administrative state?

This could spell “train wreck” for everything from securities fraud – SEC specifies what is and is not fraud in Rule 10b-5 – to analogue drugs, which the DEA is empowered to declare controlled substances under the Controlled Substances Act. A “train wreck”, indeed, one that we might enjoy watching.

Gundy v. United States, Case No. 17-6086 (argument set for Oct. 4, 2018)

SCOTUSBlog.com, Argument preview: Justices face nondelegation challenge to federal sex-offender registration law (Sept. 25, 2018)

– Thomas L. Root

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Easy to be Hard on Sex Offenders, Reports Say – Update for July 25, 2018

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

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“SEX OFFENDER” BRUSH PAINTS BROADLY, STIGMATIZES TOO MANY, REPORT SAYS
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.

The stigma against sex offenders has created a huge population of people with skills to benefit humanity whose lives and mainstream contributions are seen as forfeit, according to a story in The Crime Report last week.

Rory Fleming, founder of a campaign research services firm for prosecutors, argued that people convicted of sex offenses are statistically unlikely to reoffend, and that “many prosecutors, police officers, corrections professionals, and criminal justice reformers are aware that it is nonsensical to irreparably stigmatize a broad swath of offenders…”

In fact, Fleming writes, the phrase “sex offender” is grossly overbroad, describing any person convicted under a statute requiring sex offender registration. “The registry includes everyone from the mentally ill, remorseful flasher to the sexually-motivated killer, as well as the older party in a high school sweetheart relationship to a dangerous child rapist. There are almost one million Americans on sex offender registries, including people convicted for relatively minor sex crimes as children.”

The extent of institutional bias, let alone the general public’s perceptions, against sex offenders was starkly illustrated in a report published last week in American Criminal Law Reporter. The authors unearthed a 2004-2009 California study of untreated sexually violent offenders showing that while 30% of released offenders were arrested for some offense, only 6.5% were arrested for another sex offense. The study suggested that the actual recidivism rate was much less that the 36% estimated by a personality test California administered to the offenders while they were locked up.

pervert161207The authors detailed how the California Dept. of Mental Health, which commissioned the study in 2004, killed the study five years once officials learned of the recidivism data. The authors interviewed the psychologist who ran the study, who provided documentation. But when the authors filed a state FOIA request with the DMH for records of the study, the agency denied there had ever been a study, and stonewalled until the authors showed DMH documents obtained from the psychologist proving the study had taken place.

The Crime Report, Why Can’t We Redeem the Sex Offender? (July 16, 2018)

55 American Criminal Law Reporter 705, Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data (July 16, 2018)

– Thomas L. Root

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Sex, Registration and Punishment – Update for March 13, 2018

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

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DAY OF RECKONING APPROACHING FOR FEDERAL SEX OFFENSES?

perv160201The tide has been slowly turning for federal sex offenses, especially for downloading child pornography, in the past several years. First, several circuits have questioned whether the Guidelines for sex offense should be taken seriously, because they were the result of Congressional tinkering instead of expert evaluation. Then, the well-accepted “fact” that 80% of sex offenders repeat their crimes was exposed as a baseless assertion that had been repeated until even the Supreme Court believed. Finally, the offender registration laws of several states  – Michigan,  Pennsylvania and Colorado, specifically – have been rejected by federal courts as unconstitutional punishment.

Last week, the Supreme Court granted certiorari in Gundy v. United States, a Sex Offender Notification and Registration Act case that asks whether the law improperly delegates to U.S. Attorneys general authority to decide whether registration requirements should apply to sex offenders who were convicted before SORNA was passed. Gundy argues that only Congress has authority to legislate; it can, to at least some extent, outsource this power to another branch, but if it does so it must provide “clear guidance” – which it has failed to do with SORNA.

In an opinion piece published last Monday, The Hill criticized SORNA as “violating our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.”

Gundy v. United States, Case No. 17-6086 (cert. granted Mar. 5, 2018)

The Hill, The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal (Mar. 5, 2018)

– Thomas L. Root

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“Public Shaming” Leads to 8th Amendment Sex Registration Holding – Update for September 8, 2017

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DISTRICT COURT HOLDS COLORADO SEX REGISTRATION VIOLATES 8TH AMENDMENT

The registration systems for ex-inmates with sex offenses is state based. Congress decreed in the Sex Offender Registration and Notification Act (SORNA) that every state would have a system, and then imposed a federal requirement on people convicted of sex offenses that they must register under penalty of law.

whip170911The public loves state registration laws, because they like to identify and shame ex-offenders for crime committed years before, running them out of housing, hounding them out of jobs, and even trying to break up their families. Sounds like punishment? The Supreme Court said not, in Smith v. Doe, which in 2004 held that Alaska’s Sex Offender Registration Act (“SORA”) was not punitive.

For a decade since it was handed down, Smith v. Doe shut down constitutional challenges to state SORAs. In the last few years, however, federal courts have been willing to recognize that the landscape has changed.

A little more than a week ago, a Colorado district court recognized what anyone who has faced the burdens, obstacles, and dangers of life on the offenders registry already knows: the punitive impact of the state’s SORA far outweighs any value it might have in protecting the public. The district judge held that Colorado’s registration statute violates the 8th Amendment by imposing cruel and unusual punishment, and violates a registrant’s 14th Amendment procedural and substantive due process rights.

The Colorado court held that Smith v. Doe’s “words ring hollow that the state’s website does not provide the public with means to shame the offender when considering the evidence in this case.” The Supreme Court “did not foresee the development of private, commercial websites exploiting the information made available to them and the opportunities for ‘investigative journalism’ or “the ubiquitous influence of social media.”

shaming170911The district court noted that Justice Kennedy, who wrote Smith v. Doe, said in last spring’s Packingham v. North Carolina decision that “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is… not an issue before the Court.” But it was in front of the Colorado district court, which said, “the evidence demonstrates that the very real restraints on Plaintiffs’ abilities to live, work, accompany their children to school, and otherwise freely live their lives are not simply a result of the crimes they committed, but of their placement on the registry and publication of their status…” Colorado’s SORA looks “far more like retribution for past offenses” than a public safety regulation, the Court said.

This decision joins similar court ruling in Alaska, Maine, Michigan, New Hampshire, Oklahoma, and Pennsylvania. Given the significance of SORNA and the state schemes, Supreme Court review within the next few years is probable.

Millard v. Rankin, Case No. 1:13-cv-02046 (D.Colo., Aug. 31, 2017)

– Thomas L. Root

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