Friday, November 22, 2013

Free Ethics CLE

They say there's no such thing as a free lunch.

On the 4th, 5th, and 6th of December, we are offering an ethics CLE for the low, low price of free.  And we would also like, courtesy of the Bench Bar fund, to provide you with gratis nourishment.  Free ethics hours? Free lunch?  We are pretty wonderful.

Come enjoy fine dining consume food while Tom Bartee thrills informs you about the intersection between ethics and discovery issues.  Busy schedule, you say?  No problem- we're coming to you.  The dates are: 

Topeka-         December 4th
Wichita-         December 5th
Kansas City-  December 6th

A signup link will be available Monday, and we will update this post so you can register.

Update-  Carnella Anderson, our intrepid assistant in Wichita, has emailed out a complete agenda.

Monday, November 18, 2013

Juvenile Justice System Breakdown

I was struck by the sad irony that on the same day I found myself reviewing a DOJ bulletin from the Office of Juvenile Justice and Delinquency Prevention on how to ensure these "facilities are safe and that the youth in custody receive the necessary treatment and services[,] the very disturbing decision from the Tenth Circuit in Blackmon v. Sutton, et al. was returned.  See USDOJ, Office of Justice Programs, OJJDP, September 2013, p. 1. 

We would all like to think our incarcerated clientele, and especially our youth, whether client or not, are treated well.  Having heard the stories from our clients over the years of abuses that occur within detention facilities, we certainly have reason to be sceptical.  The lack of training, oversight and discipline within our correctional system has been known, sometimes witnessed, and will likely continue in an environment of overcrowding and shrinking budgets.  So, for all those private counsel who are moved to act in representing those whose voice is rarely heard in the hallowed halls of power, the Blackmon decision should give you as much hope, as it does repulsion.  

It has always been the belief by most in society that it is the inmates themselves that make the correctional environment so inhumane, and that it is their doing that causes them to come out worse than when they went in.  I don't doubt that that is partly true.  However, as this opinion reflects, albeit at the pretrial stage of denying the civil defendants' summary judgment motion, our public servants overseeing this system would appear to also carry some of the blame.  There is no doubt that this troubled and diminutive (4' 11", 96 pound) eleven-year old came out far worse than when he went into the juvenile justice system here in Wichita, Kansas.  Although the jury has not yet spoken in this case, if the matter isn't settled out of court, this case should shine a bright and embarrassing light on the professionals within our juvenile justice system that allowed this "correctional" behavior to fester.  Like any wound, sometime exposure to the open air is the only way it will heal.  Let's hope this opinion gets a good airing.           

Sunday, November 17, 2013

Stash Houses: The ATF's Crime

Can't say it any better than this:

Massively involved in the manufacture of the crime, the ATF's actions constitute conduct disgraceful to the federal government. It is not a function of our government to entice into criminal activity unsuspecting people engaged in lawful conduct; not a function to invent a fiction in order to bait a trap for the innocent; not a function to collect conspirators to carry out a script written by the government. As the executive branch of our government has failed to disavow this conduct, it becomes the duty of the judicial branch to refuse to accept these actions as legitimate elements of a criminal case in a federal court.

That's the spitting outrage (that's why it's in red) from Judge Noonan, unfortunately in a dissent in a Ninth Circuit decision (two strikes), US v. Black,  2013 WL 5734381 (9th Cir. Oct. 23, 2013), *20.  In what the majority politely calls a 'reverse sting operation', an ATF undercover agent recruited the defendants to carry out an armed robbery of a fictional cocaine stash house. The district court denied both a motion to dismiss for outrageous government misconduct (an impossibly high standard) and also a sentencing entrapment argument. 

Nonetheless, if you have a stash house case, this is worth reading. It was well-litigated (three-day evidentiary hearing), and the majority is mildly critical of the recruitment methods: "The CI’s role was to try and find some people that are willing to go commit a home invasion.” Nothing manufactured about that, huh?

But it is the dissent that provides the framework and the fuel for any such challenge. And it would be good to inject Judge Noonan's outrage into any stash house case.

The also-read: US v. Cortez2013 WL 5539622 (9th Cir. Oct. 9, 2013).

Disclosure: Full credit to Steve Sady's Blog post (from which this is shamelessly lifted).

-- Melody

Thursday, November 7, 2013

The Redemption Threshold

Forensic psychologist Karen Franklin reports today that the authors of the STATIC-99, the most popular instrument for estimating the recidivism risk of sex offenders, have concluded that recidivism rates decline rapidly as a former offender remains in the community.

While incredibly long terms of supervised release are common for federal sex offenders, the new evidence suggests that this practice is misguided.  In a study tracking 7,740 former sex offenders, the researchers concluded that even the highest-risk offenders saw their recidivism rates drop precipitously the longer that they were in the community.  High-risk offenders who had a 22% recidivism rate at release had only an 8.6% rate five years later, and a 4.2% rate ten years later.  

Two conclusions emerge from the research.  First, as the study authors note, " If high risk sexual offenders do not reoffend when given the opportunity to do so, then there is clear evidence that they are not as high risk as initially perceived."  Second, this research indicts the necessity of long-term, intensive supervision for many offenders.  Does directing a massive amount of resources at a person who is succeeding in the community, and who is 91.4% likely to not recidivate, make any sense?

Wednesday, November 6, 2013

The Smarter Sentencing Act

On October 30, companion legislation to the Senate's Smarter Sentencing Act was introduced into the House of Representatives.  The National Journal lists the Act among its 7 bills that could actually pass.  "Busted by the Feds", the Bible of our clients, believes the legislation has a good chance of passing. (And who am I to argue with "Busted by the Feds"?) So, what does this most excellent piece of legislation actually do?

First, the bill would amend 18 U.S.C. 3553(f)(1) to extend the federal safety valve to defendants in criminal history category II.  That's something.

Second, the bill would make the Fair Sentencing Act of 2010 retroactive to most permitting them to file a motion for the district court to apply the penalties of the FSA to their case.  This could be huge. There are about 12,000 defendants who would benefit from such an approach, especially those whose new guideline sentence after Sentencing Commission Guideline 750 is far below the mandatory minimum sentence they are serving under the old law.

Third, and most significantly, the bill would amend federal mandatory minimum sentences.  It would directly amend 21 U.S.C. 841 (b)(1)(A) to reduce the mandatory minimum penalty from ten to five years.  The bill would also change the penalty after an 851 information is filed from twenty years to ten years, though there is no language which would remove a life imprisonment penalty if two 851 informations are filed.

The bill also makes changes to the mandatory minimums under 841(b)(1)(B), reducing the mandatory minimum from five years to two years, and changing the effect of an 851 information to require a mandatory minimum of five years instead of ten.  The bill also makes identical changes to the penalties set out in 21 U.S.C. 960.  The long and short of things is that the bill cuts most mandatory minimums in half, with corresponding changes to the effect of 851 enhancements.

Finally, the bill directs the Sentencing Commission to issue emergency amendments within 120 days to "ensure that the guidelines and policy statements are consistent with the amendments made by sections 2 and 4 of this Act and reflect the intent of Congress that such penalties be decreased in accordance with the amendments made by section 4 of this Act."  Well.  That's rather something.

Cross your fingers, everybody.

Recidivism and Registration

Everyone knows that all persons convicted of sex offenses are unstoppable monsters who give thought to nothing other than their next victim.  Well, not everyone- a recent study found that only 98% of respondents believe that most sex offenders will reoffend after conviction.  But the entrenched public perception that sex offenders pose a continuing danger to the community leads to overwhelming support for registration laws, support that the above study notes reaches above 90%.

Recent research suggests that the cure is much worse than the disease.  In a research paper funded by the Department of Justice (though not published, the text is careful to note) entitled Sex Offenders: Recidivism and Collateral Consequences, the authors examine the results of a pair of studies conducted in New Jersey. These studies examine the recidivism rates of sex offenders released before and after New Jersey passed a sex offender registration statute, and attempt to determine the characteristics of sex offenders who did recidivate.

These studies demonstrate that the existence of a registration scheme did not lead to lower recidivism rates. The authors conclude that "highly important for policy, SORN cohort status (e.g., being a sex offender released since the enactment of SORN) did not significantly predict sex or general recidivism."  What did predict recidivism rates was an unusual series of offender characteristics which indicated a high risk of reoffense. The factors that distinguish these high-risk offenders include: (1) a drug problem, (2) a rape conviction, (3) a previous victim who was a stranger, and (4) a prior arrest for a non-sex offense.

But the problem is not simply that the registration scheme in New Jersey is ineffectual- it actually makes things worse.  Registration and community notification requirements make offenders less likely to live with friends and more likely to have to relocate.  The result is that sex offenders become alienated from the protection of friends and their community support system.  As the paper concludes,

"In the end, the results from Study #1 and Study #2 add to the growing body of literature
questioning the universal application of registration and notification procedures  Specifically, these findings suggest that SORN is not likely an effective deterrent for sex offender recidivism (which by itself is not a highly likely occurrence) and may produce an environment with specific collateral consequences that inhibit
reintegration efforts post-prison release for sex offenders."

These studies both demonstrate that most sex offenders have vanishingly low recidivism rates, and show that punitive levels of supervision are criminogenic.  While obviously relevant at the policy level, this study also badly undermines the government's arguments about application of the 3553(a) factors in a federal SORNA prosecution.  If offenders who were not required to register prior to passage of the statute recidivated at the same rate as offenders required to register, what exactly is the point?

Tuesday, November 5, 2013

Security Classification in the BOP

The entire policy is laid out on the BOP website here.  Let's talk about how to manage the process to the extent possible.  Here are the benchmarks for male inmates.  All levels assume that no public safety factor (which we will cover in a subsequent post) applies.

0-11 points-       Minimum
12-15 points-     Low
16-23 points-     Medium
24+ points-        High

There are a number of things that can add points: offense severity, criminal history, history of violence, prior escapes, active detainers,age,  lack of education, and drug or alcohol abuse.

Monday, November 4, 2013

Proffer Disclosure and Prosecutorial Ethics

Ever sat in the U.S. Attorney's Office reading a proffer that you couldn't take home to study?  Ever done so three days before trial?  Ever thought that there might be something, just a little something, wrong with that?  Reasonable people agree with you.

In a recent law journal article regarding prosecutorial ethics, the particular reasonable person that agrees with you: (1) has a firm grasp and and articulate sense of the ethical duties of prosecutors, and (2) works for the Kansas Disciplinary Administrator's Office.

In her law journal article entitled "Prosecutors' Discovery and Disclosure Requirements After Lafler v. Cooper", Kim Knoll unpacks the Supreme Court's constitutionalization of the plea bargaining process as it impacts discovery requirements.  The upshot of her most fabulous analysis is that a prosecutor's duties to disclose are governed not just by their statutory duties, but by their (wut?) ethical requirements.

An important component of this inquiry is the realization that proof of an ethical lapse does not require evidence of prejudice to the defendant.  While habeas claims often founder on the shoals of proof that the defendant suffered prejudice from the prosecutor's failure to disclose, no such requirement exists in the ethical context.  There, wrong is wrong.

The Supreme Court's recent decision in Lafler also moves the chains by imbuing the plea bargaining process with constitutional protections previously unrecognized.  As Kim observes,

"the Lafler decision has opened the door to a whole new level of scrutiny of prosecutorial disclosure decisions.  It is reasonable to interpret ABA Model Rule 3.8(d) to require disclosure of all types of information before disclosure is constitutionally or statutorily required.  Disclosure must be made early enough for the information to be usable by the defense.  The analysis of whether the disclosure is timely will always be viewed through the eyes of the defendant.  A prosecutor who withholds material that will eventually require disclosure runs the risk of failing to make a timely disclosure."

The nuance and common sense of the entire article is difficult to succinctly summarize here.  While Lafler does not alter the prosecutor's obligations to disclose purely incriminatory evidence, it badly erodes the artificial distinction between exculpatory and impeachment evidence.  You, dear reader (both of you), would be well served to review the article in its entirety.