Tuesday, February 12, 2019

Advocating for probation

When imposing a sentence, federal judges are required to consider the need for the sentence "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2)(D).

And yet "imprisonment is not an appropriate means of promoting correction and rehabilitation." 18 U.S.C. § 3582(a). See also Tapia v. United States, 564 U.S. 319 (2011).

What's a federal judge to do?

Consider alternatives to imprisonment, that's what. And defense counsel now have a roadmap for encouraging the judge to do just that, with U. Chicago Law Professor Erica Zunkel's new article 18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in “the Most Effective Manner.”

A few lessons from the article:

First, federal law commands judges to consider the need for correctional treatment "in the most effective manner." BOP cannot provide that treatment. Again, federal law prohibits imposing a prison sentence for rehabilitation purposes. And BOP "faces numerous hurdles to providing 'the most effective' care for defendants due to overcrowding, staffing shortages, high medical costs, and budget cuts."

Second, defense counsel should present the sentencing judge with specific evidence and data contrasting correctional treatment relevant to counsel's client inside the BOP with correctional treatment available outside the BOP.

Third, defense counsel should show the sentencing judge how a non-prison sentence promotes other sentencing goals as well. For instance, even the Supreme Court has recognized that probation constitutes punishment, as it "substantially restrict[s]" a person's liberty. Gall v. United States, 552 U.S. 38, 48 (2007). And counsel can present studies to argue that a probationary sentence with correctional treatment can do a better job of deterring crime and protecting the public than can a sentence of imprisonment.

Sunday, February 10, 2019

Hold the government to its burden

Recently, in United States v. Munksgard, No. 16-17654, 2019 WL 361432 (11th Cir. Jan. 30, 2019), the Eleventh Circuit issued an opinion which serves as a reminder to defense attorneys to hold the government to its burden and argue—after the evidence is closed—that the government failed to offer sufficient evidence at trial to prove that a bank is FDIC-insured. Although the defendant in Munksgard did not prevail in his appeal, the case was sufficiently close to provoke a detailed dissent and a strong word of warning from the majority to government prosecutors.
Mr. Munksgard was charged under 18 U.S.C. § 1014, which “criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC.” Munksgard’s appeal raised the issue of whether the government had presented sufficient evidence to prove that the bank was FDIC-insured at the time of the offense.
As the dissent noted, the government provided no direct evidence that the bank was FDIC-insured in 2013 when the offense was committed. Instead, the government presented the following evidence at trial: (1) certification which indicated that the bank was FDIC-insured at the time of its charter in 1990, decades before the offense; (2) testimony that the bank was insured at the time of trial in 2016; and (3) testimony that the bank “isn’t required to ‘renew’ its FDIC certificate ‘every so often.’”
Although the court concluded, “albeit reluctantly,” that a reasonable juror could find that the bank was insured by the FDIC at the time of the offense, it noted that “[f]or reasons that leave us mystified, in cases involving federally insured banks—bank robbery, bank fraud, etc.—the government continues to stub its toe in seeking to prove the seemingly straightforward, but nonetheless jurisdictionally ‘indispensable,’ element of FDIC insurance.”
As the majority stated, “let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.”
The decision can be found here.

Sunday, February 3, 2019

Through the gateway of "actual innocence"

Actual innocence is one gateway to overcoming procedural bars to habeas relief set forth by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That is, to prevent “a fundamental miscarriage of justice,” the Court has carved out a rule that an otherwise procedurally-barred petition under AEDPA is not barred where a petitioner can make a credible showing of actual innocence by (1) presenting new, reliable evidence, and (2) demonstrating by a preponderance of the evidence that it is more likely than not that not that a reasonable juror would have reasonable doubt.

Pathway Between Green Trees Brown Steel Gate during DaytimeLast week, in Finch v. McKoy, No 17-6518, 2019 WL 324667 (4th Cir. Jan. 25, 2019), the Fourth Circuit reaffirmed the essential nature of the actual-innocence gateway to habeas review.

In 1976, a North Carolina jury  convicted Charles Finch of first-degree murder of a gas station owner in a robber-gone-wrong. The state presented no physical evidence implicating Mr. Finch in the crime but rather relied on one eyewitness’s testimony and identification of Mr. Finch as the shotgun shooter. Nearly 40 years later, in 2015, Mr. Finch filed a federal habeas petition presenting new evidence in support of his wrongful conviction. 

The new evidence includes expert testimony regarding the due-process violation stemming from an impermissibly suggestive lineup scheme, which—in addition to new evidence that the murder weapon was not a shotgun but rather a pistol—tainted the credibility of the state’s star eyewitness such that, as the Fourth Circuit held, a reasonable juror would likely doubt that witness’s pretrial (and in-court) identification of Mr. Finch, as well as his account of the events.  

Despite this convincing new evidence, the district court nevertheless dismissed the petition as untimely under AEDPA. But, enter the Fourth Circuit to reverse after finding Mr. Finch sufficiently set forth new evidence that, under the totality of the circumstances, would “likely fail to convince any reasonable juror of his guilt beyond a reasonable doubt.” In doing so, the Fourth Circuit has granted Mr. Finch—now 80—the opportunity to challenge the veracity of his convictions and any miscarriages of justice at a hearing on the merits of his claims.

And for curious readers, the recording of oral arguments before the Fourth Circuit can be found here.