Monday, February 22, 2021

Cert grant: When are two crimes "committed on occasions different from one another" for ACCA purposes?

A person convicted of possessing a firearm after a felony conviction faces a significantly higher sentence under the ACCA if that person has at least three prior convictions for qualifying crimes "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). But what does "committed on occasions different from one another" mean?

Under Tenth Circuit law, those occasions may be separated by very little space and time. See United States v. Tisdale921 F.2d 1095 (1990). Mr. Tisdale had three prior burglary convictions that all occurred on the same night, in the same mall. But they were committed "successively" (rather than simultaneously), and they involved different locations within the mall. They were therefore committed "on occasions different from one another." ACCA sentence affirmed.

Fast forward a few decades. In United States v. Wooden, 945 F.3d 498 (6th Cir. 2019), the Sixth Circuit affirmed an ACCA sentence based on a similar set of prior convictions, this time ten burglaries of ten separate units within a storage facility on the same night.

On Monday, the Supreme Court granted Mr. Wooden's pro se petition for a writ of certiorari to answer this question: "Whether offenses that were committed as part of a single criminal spree, but sequentially in time, were 'committed on occasions different from one another' for purposes of a sentencing enhancement under the Armed Career Criminal Act." 

Read the cert documents here, and be sure to preserve this issue in your own cases.

Tuesday, February 16, 2021

Supervised release: no punitive imposition; no punitive revocation

Fun fact: When Congress first created supervised release in 1984, it did not provide district courts with authority to revoke supervision and return a person to prison. Congress assumed, apparently, that the threat of being held in contempt of court would ensure compliance with court-ordered conditions. This approach lasted a whole two years.

But that's not what this post is about. This post is a reminder of two simple statutory limits when it comes to imposing or revoking supervision: neither of these judicial acts can be taken for retributive purposes.

18 U.S.C. § 3583(c) directs a court considering the imposition of supervised release to consider most of the 18 U.S.C. § 3553(a) factors, but that list excludes factor (a)(2)(A). Which factor is that? It is the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense."

Likewise, 18 U.S.C. § 3583(e) directs a court considering the revocation of supervised release to consider the same list of factors, which, again, excludes factor (a)(2)(A).

What does this mean? It means that district courts are statutorily prohibited from imposing or revoking supervision for retributive purposes. And that's because the purpose of supervision is to help people, not to further punish them.

Want to know more? Check out Schuman, Jacob, Revocation and Retribution (February 15, 2021), Washington Law Review, forthcoming, available here. Learn the history and purpose of these provisions, and prepare to object to improperly based supervision and revocation orders.

 

Sunday, February 7, 2021

Kansas FPD: Investigative Data Analyst

The Kansas Federal Public Defender is looking for an investigative data analyst. 

Holistic defense is about recognizing and addressing the bigger picture beyond the specific criminal charges in an individual case. Data collection is key to this effort as it helps us organize and connect disparate pieces of the puzzle. Data analysis enables us to identify patterns, both positive and negative, in our clients’ lives, in our defense work, in the criminal legal system, and in society.

 This approach will allow us to answer questions such as:

•            What are the demographics of our clients?

•            What are the most common resources our clients need to be successful?

•            What defense strategies and tactics result in the lowest sentences for our clients?

•            What kind of sentences do our clients of color get for a particular federal charge as compared our white clients?

•            What are the release/detention rates for our clients from different demographics?

•            How do our clients assess our representation? How can we improve?                   

•            How many searches has a particular police officer conducted that have been found unconstitutional?

•            Have particular police officers been found to lack credibility with the court?

•            Has a particular expert’s testimony been limited or prohibited?

We have seen how the government and the business world have used data collection and analysis to super-charge their work. We know that harnessing these tools will make us better advocates. You can read more about the position here. Our ideal candidate has experience in data analytics, statistics, and public defense. If you have relevant skills and experience, please apply by March 15, 2021.
 
-- Zay Thompson, FPD Investigator, and Melody Brannon, Defender

Tuesday, February 2, 2021

Acting AG to federal prosecutors: "seek justice in every case"

Stuff is happening.

Last Friday, the acting US Attorney General rescinded the 2017 Sessions Memo instructing prosecutors to "charge and pursue the most serious, readily provable offense," and reinstated a 2010 Holder Memo instructing prosecutors to individually (and fully) assess each case when making decisions regarding charging, plea negotiations, and sentencing advocacy.

Last Wednesday, the acting US Attorney General rescinded the zero-tolerance policy with respect to unlawful-entry prosecutions.

The bottom line in both memos was this: seeking justice in every case "requires considerable judgment." Policies that don't take individual circumstances into account are inconsistent with justice.

It's a good start. But it's only a start, intended as a temporary measure "while longer-term policy is formulated." Stay tuned . . .





Sunday, January 31, 2021

Fourth Amendment festivities

This week, we're celebrating these recent Fourth Amendment wins from the Tenth Circuit (with a plus-one from S.D. Ohio):

Abandonment, inventory search, impoundment, community caretaking, Miranda

United States v. Chavez is a fun-filled ride through a number of Fourth Amendment issues (and one bonus Fifth Amendment issue!).

After a brief car chase, Deputy Castaneda found Mr. Chavez's empty car parked, engine running, lights still on, at the end of a dirt road next to a trailer and an RV. The deputy called for backup. One responding officer opened the driver-side car door to put the car in park, and saw what he thought was a gun. He left the gun there and shut the door.

Mr. Chavez was found nearby. Deputy Castaneda, having been advised of the gun, asked Mr. Chavez (without Mirandizing him) whether he was a felon. Mr. Chavez said that he was. The deputy arrested Mr. Chavez and walked him past the car. Deputy Castaneda looked in the car window and also saw the gun.

Officers proceeded to inventory the car in anticipating of impounding it. After Deputy Castaneda had removed the gun, a woman appeared from the trailer and said that the car was hers, and that Mr. Chavez sometimes drove it. The officers released the car to the woman.

Law exam question: Must the gun be suppressed as unlawfully seized and retained?

Answer: Yes.

First, Mr. Chavez had a reasonable expectation of privacy in the car. He left the car on a private dirt road, just outside his own trailer. This was not abandonment for Fourth Amendment purposes.

Second, while the officers saw the gun in plain view, they did not have authority to seize the gun. Their anticipated impoundment of a car parked on private property violated local policy, and therefore the inventory search was invalid. Additionally, once the impoundment was called off, the deputy had no authority to hang onto the gun.

Third, seizing the gun (and keeping it) was not justified under the community-caretaking doctrine. It would have taken "a daring child, vandal or thief" to enter the private road, burgle the car and steal the gun, thereby putting public safety at risk.

Fourth, Mr. Chavez's admission to being a felon did not justify seizing the gun, because the admission was not Mirandized. The Supreme Court's holding in Patane (that the fruit of un-Mirandized voluntary statements need not be suppressed) does not apply here, because here the government failed to directly address voluntariness in the district court (which therefore found the admission involuntary) or to argue Patane on appeal.

Fifth, seizure and retention of the gun was not justified under either the automobile doctrine or the plain-view doctrine.

Whew!

Reasonable suspicion

In United States v. Williams (unpublished), the government conceded that the constitutionality of a "high-risk" "felony car stop" of Mr. Williams hinged on whether the officers conducting the stop had reasonable suspicion to believe that a murder suspect was in the car.

Evidence that (1) Mr. Williams had been seen at two apartments associated with the suspect a month earlier, and that (2) Mr. Williams's car had just left a 75-100-unit apartment complex where the suspect's girlfriend was believed to live did not add up to reasonable suspicion that the suspect was in Mr. Williams's car at the time of the stop.

Black male + hoodie ≠ reasonable suspicion

Here's what dispatch reported: A Black male (possibly a 14-15 y/o student) with dreads, a black hoodie, and tan pants flashed a gun in a K-12 school parking lot. On foot, headed towards the park.

Here's who six officers surrounded in a small park restroom lobby: Mr. Johnson, a 27-year-old Black man (who looked even older than 27) with visible facial hair and facial tattoos, no apparent dreads, wearing a black coat, a hoodie, a beanie cap, and light grey sweatpants.

During about a minute of conversation, Mr. Johnson truthfully denied being at the school, explained that he had just arrived at the park by bus, and said that he did not want a pat-down. An officer then directed Mr. Johnson to raise his shirt. This led to the discovery of a gun on Mr. Johnson's person, and Mr. Johnson's arrest for being a felon in possession of a firearm.

This nonconsensual Terry stop and pat-down was not supported by reasonable suspicion. So held District Court Judge Michael R. Barrett in United States v. Johnson2021 WL 253973 (S.D. Ohio Jan. 25, 2021). It seems obvious, doesn't it? And yet . . . . 

Officer chatter caught on their recorders after the arrest included comments that Mr. Johnson was at the wrong place at the wrong time, and that it was "weird" that Mr. Johnson declined to agree to a pat-down. Nonetheless, the officers blithely assured each other that they "had enough to pat him down anyway."

The district court was sufficiently bothered by the officers' nonchalance to warn them directly of the seriousness of their actions, quoting Terry itself:

[I]t is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’[ ] It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.

Lessons learned? (1) Always reread the foundational constitutional cases--they contain much wisdom; and (2) always, always watch the videos and listen to the tapes.

Wednesday, January 27, 2021

Sentencing Commission’s recidivism work “should come with a warning label”

What the Sentencing Commission was supposed to do: promote “sound sentencing practices”

The Sentencing Reform Act of 1984 envisioned a Commission overseeing a “research and development program” for implementing “sound sentencing practices,” with the USSC systematically collecting and disseminating research concerning sentencing practices and their effectiveness, including “information concerning sentences actually imposed, and the relationship of such sentences to the factors set forth in section 3553(a).” 28 U.S.C. § 995(a)(12), (15), (16). Section 3553(a) references several factors, but the four primary sentencing purposes stand out: retribution, deterrence, incapacitation, rehabilitation. So the USSC website’s search tool should be a portal to mountains of data and analysis on these four primary sentencing purposes, all gathered and curated by the Commission since the late 1980s. It’s not.

What the Sentencing Commission does instead: promote a “preference for imprisonment”

For years, the Sentencing Commission has focused its considerable resources on collecting data and reporting on post-sentencing, post-release “recidivism.” This focus has recently been subjected to a withering critique in The U.S. Sentencing Commission’s Recidivism Studies: Myopic, Misleading, and Doubling Down on Imprisonment, to be published in the next edition of the Federal Sentencing Reporter. The author, Professor Nora V. Demleitner, shows that the Commission’s recidivism studies subtly promote imprisonment in several ways, including by: 

framing recidivism data negatively, i.e., describing the data in terms of failure rates rather than desistance rates;

defining “recidivism” over-broadly, including not only convictions for serious crimes, but also mere arrests that didn’t result in conviction, as well as technical violations of supervision (even the Administrative Office of the U.S. Courts’ annual recidivism study doesn’t do that); and

failing to consider the criminogenic effects of imprisonment or the rehabilitative value of prison and reentry programming, and the influence of post-sentence supervision.

The article contrasts the USSC’s approach with the more balanced approach of  Germany, where “recidivism” is defined more narrowly, and desistance rates are emphasized over failure rates.

Do your judges rely on recidivism rates when sentencing? If so, read this article, and prepare your defenses to the wrongheaded notion that “the past predicts the future.”

Thanks to Tom Bartee and Melody Brannon for this post.

Sunday, January 24, 2021

Happy New Year!

It's been a long dark winter so far . . . . But we've decided it's time to poke our heads out of hibernation and see what criminal-law reforms may be in store under the new administration.

President Biden has pledged to "take bold action to advance a comprehensive equity agenda to deliver criminal justice reform." To that end, this Tuesday, January 26, is "equity" day on the White House agenda. What does that mean? 

We won't know until Tuesday, but plenty of folks have given the administration plenty of suggestions for reform. We'll keep you posted, especially as to developments directly affecting our clients.

In other fun news, last week the Fifth Circuit told CoreCivic that yes, even CoreCivic is bound by the Trafficking Victims Protection Act not to subject the people in its custody to forced labor. But wait!--CoreCivic complained--if we are human traffickers, then so are all those parents who make their kids do chores. The Fifth Circuit was neither amused nor persuaded. The case now goes back to the district court for further proceedings on the plaintiff's claim that CoreCivic's work programs are not voluntary.