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 . . .