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May 2021


How to Become a Bounty Hunter

April Supreme Court Cases Include Conviction of Ex-Virginia Governor

By Ross Parker

The Supreme Court will hear oral arguments in four difficult criminal cases on the April docket. All without the incisive, biting and entertaining interrogation of Justice Scalia. But last month Justice Thomas asked his first question in more than a decade. That must have raised some eyebrows.

One of the highest profile cases of the term, McDonnell v. United States, will be among those argued. Bob McDonnell was the popular governor of Virginia, and his name had been mentioned as a Vice Presidential running mate. Probably not any more since his prosecution for bribery.

Gov. Bob McDonnell

Gov. Bob McDonnell

His financial problems led him and his wife to seek various loans and gifts valued at over $175,000 from a businessman who was promoting a dietary supplement under review by the FDA. The gifts included a $20,000 shopping spree by Mrs. McDonnell, a former Washington Redskins cheerleader. Not that I hold anything against former cheerleaders (some of my best friends…), but she does seem to be at the center of both the “quid” and the “quo” of this sordid affair.

The issue before the Court is whether the Hobbs Act felony of agreeing to take “official action” in exchange for something of value by exercising actual government power (i.e. bribery) was proven in the case, as opposed to merely providing routine political courtesies, benefits and access to others.

The evidence at trial included the following “official acts” by the governor, all around the time that the McDonnells were receiving their goodies: asking the Secretary of Health to send an aide to a meeting where Mrs. McDonnell and the businessman could pitch the product; attending a luncheon arranged by Mrs. McDonnell where  the businessman gave two state medical schools $200,000 to research the product; sending an ambiguous email (at Mrs McDonnell’s request) to a staffer regarding the medical school’s lack of responsiveness; inviting the businessman to a reception for the “Health Care Leaders”; and finally suggesting a meeting to discuss whether the product could be included in the state employee health plan. Note the First Lady’s involvement. Cherchez la femme

None of these actions by the governor resulted in any specific benefit to the businessman. Nor did the governor make any request or order that a government official do anything other than exercise his/her independent judgment. McDonnell said that he was doing nothing more than helping a state business and extending political courtesies.

The Solicitor General argues that at least some of the actions amounted to personal benefits conferred in exchange for an agreement to influence government matters. But McDonnell’s supporters filed more than a dozen briefs which warn that the expansion of the statute to include this kind of conduct will create an ill-defined situation where aggressive federal prosecutors could criminalize what has been merely political custom.

Read more »

Supreme Court Oral Arguments in March, With An Empty Seat on the Bench

Justice Antonin Scalia

Justice Antonin Scalia

By Ross Parker

When counsel approach the lectern in the Supreme Court for oral argument during the rest of the term, instead of facing the blistering questions of the Court’s most aggressive inquisitor, they will instead see an empty chair among the nine on the bench, draped with a black sash. One of the Court’s most active and entertaining interrogators has bedeviled his last lawyer. There will be less laughter in the courtroom.

Justice Antonin Scalia died on February 13, 2016, one month shy of his eightieth birthday. Befitting his colorful life, it was after a day of quail hunting in West Texas. Although the politicians are rumbling about his successor and the conspiracy theorists whispering about the circumstances of his death, it was in all likelihood a peaceful death after an active life of purpose, whether you agree with his brand of conservatism or not.

In criminal cases, he generally supported the government. Along with Justice Thomas, he was unapologetically pro-death penalty, whether the defendant was under-age, mentally retarded, or subject to a botched execution. After all, those were all legal in 1791 when the 8th Amendment was ratified. He also labored to overrule the Warren revolution of cases restricting the police, especially Miranda v. Arizona.

But he could vote for the defendant, too, especially in areas involving jury trial rights and the traditional authority of trial judges. His Booker opinion ended mandatory Sentencing Guidelines. And Apprendi v. Arizona stopped judge-decided facts leading to sentence enhancements. He also was protective against the reach of technology. In Kylio he authored the opinion requiring search warrants for thermal imaging searches. Marijuana grow lights became a bit more private.

Despite his sometimes angry and outrageous vitriol during argument and in his opinions, he was by all accounts well liked by his colleagues on the bench and the staff. He was one of a kind and his death diminishes the energy and vivacity of the institution.

Without Justice Scalia’s contributions, the Court will consider two criminal cases during its March oral arguments. Betterman v. Montana raises one of those issues that you would have thought had already been decided — whether the 6th Amendment guarantee of a speedy trial applies to the sentencing phase. Are defendants protected against inordinate delay in the final disposition of sentence by the 6th Amendment?

The defendant pled guilty to bail jumping after he failed to appear for sentencing on a domestic assault conviction. He explained that he did not have transportation from Butte to the courthouse in Billings. He eventually sobered up enough to turn himself in to the county jail, where he remained for 14 months when he was finally sentenced to 7 years consecutive to his 5 year sentence for assault, with no credit for time served. Don’t go in the wind in Montana after beating up your spouse.

The Montana Supreme Court held that Speedy Trial does not apply to sentence delays, only due process. Although the court found the delay to be unacceptable and attributable to the state, the prejudice shown by the defendant, delaying rehabilitative programs and other benefits in prison compared to the county jail, was speculative and insufficient.

The prosecution argues that the issue is more properly one of due process and that the burden of proof of prejudice is on the defendant.

When the 6th Amendment was ratified in the late 18th Century, most penalties were fixed and were imposed immediately after the verdict or within a few days. Today’s sometimes extended sentence proceedings and alternatives have changed that process considerably. Because over 95% of the defendants plead guilty, the period from conviction to sentence has become the most crucial and litigated phase of the proceeding. Delays which impair the ability to defend oneself, as well as other rehabilitative resources and requirements, can significantly affect a defendant’s eligibility to someday become a free person.

To a large extent the question becomes, what does “trial” mean in the context of the 6th Amendment – the proceeding determining guilt or innocence, or the entire proceeding to the entry of judgment at sentencing. Did the Founders actually intend that the right is one of Speedy Justice, much like the other 6th Amendment right to a public trial (which extends to sentence)?

Likewise whose responsibility is it to prove the presence or absence of prejudice from delays, the defendant’s or the state’s?

Prediction: This presents a close question, probably made closer by Justice Scalia’s absence. I believe the Court will extend the 6th Amendment to the sentencing phase and it will also find prejudice in this case.

The other case scheduled for oral argument in March is Welch v. United States. The issued posed is whether in a habeas case a Florida conviction for “robbery sudden snatching” qualifies as a predicate for Armed Career Criminal Act (ACCA) sentence enhancement. A preliminary question is whether the Court’s opinion last term in Johnson v United States should be applied retroactively to cases on collateral review.

The Armed Career Criminal Act subjects a defendant convicted of being a felon in possession of a firearm to a longer sentence if he has 3 prior convictions which are either:  a violent felony (involving the use or threatened use of force): one of 4 named felonies (burglary, arson, extortion or use of explosives); or otherwise involves conduct which presents a potential risk of physical injury. Johnson invalidated this last option, called the residual clause as being void for vagueness.

To qualify Welch’s prior convictions of robbery sudden snatching must satisfy the “force” requirement of the first option—if Johnson is retroactive. There seems to be a serious question of whether the Florida statute requires force as an element. If not, the defendant would not have the requisite 3 predicate convictions.

The government’s argument is that, if the Court makes Johnson retroactive, it should remand the case to the 11th Circuit to determine this question. The defendant argues that this issue is “readily apparent” and that the Court should reverse.

Prediction: The Court will hold that Johnson is retroactive. The issue is substantive, not procedural, and involves a new rule of constitutional law involving the range of conduct and class of persons which the law punishes. I am not sure the record has completely explored the issue of the Florida statute’s elements. It makes more sense for a lower court to determine this question in its first instance. I think the Court will remand to consider this question.

Despite frequent differences with Justice Scalia’s holdings and judicial philosophy, I feel a real sense of his loss by his passing. His contribution to the evolution to the rule of law and the operation of the highest Court was unique. He was a force of nature who had a set of brass ones.

Lead Poisoning in Flint and Future Crime Statistics


By Ross Parker

In the plethora of political finger pointing and civil and criminal investigations, as well as the avalanche  of media reports on the lead contamination crisis in Flint, Michigan, one aspect of the debacle has been barely mentioned—the effect of lead poisoning of children on crime rates in future years.

The only media report of this potential is by the online journal thinkprogress (Click here to read).

As this column noted in November 2013 and January 2014, several scientific studies during the past two decades have demonstrated a positive correlation between lead exposure to children and their later propensity toward crime as a juveniles and young adults. Lead in the air and water has been shown to be especially harmful to children, causing or contributing to ADHD, decreased IQs, and emotional problems. These problems are especially present among low income groups.

One such study on this issue has been done by an Amherst College Professor, Jessica Wolpaw Reyes, who compared Massachusetts kids’ 1990 lead exposure with their 2000 test scores and behavior problem records. She found that even moderately elevated blood lead levels could be responsible for increased adult aggressiveness and violent criminal behavior. Reyes hypothesizes that it could also cause a tendency toward impulsive behavior, ADHD, substance abuse and a host of other social ills. Other studies around the world have confirmed these finings.

Other studies have pointed out the striking parallel between the increased lead in the air caused by leaded gasoline between the 1950s and 1991 when it was banned, and the dramatic increase in crime statistics during that same period. Obviously other factors were likely contributors, but the elimination of lead from fuel and paint seems to have been a significant potential factor in the greatly reduced crime statistics of the last two decades.

The question is to what extent will the lead exposure to Flint children affect their future health and development? Moreover, will any such effect result in the emotional and mental problems which will increase their propensity to commit crimes?

The Flint water contamination was a debacle by governments and a tragedy for its people. One potential result, one which should be added to the decision making by policymakers who thus far have been unwilling to spend the money to replace and repair Flint’s lead corroded infrastructure, is the cost to future crime victims.

Flint is not the only city to face these questions. An investigation is already underway in Sebring, Ohio for the same problem. Likely we will learn of other cities in the near future that will face a similar issue. The only silver lining to this tragedy may well be to influence other cities in the United States and around the world to examine their own water systems and the lead in the blood levels of their children and to take corrective action if needed.

As Nontombi Naomi Tutu, daughter of Desmond Tutu, said in a recent speech at the University of Michigan-Flint, “We actually needed the people of Flint to remind the people in this country what happens when political expediency, when financial concerns, overshadow justice and humanity.”

Perhaps a small consolation to the sacrifices by the people of Flint.

Five Tough Criminal Cases for the Supreme Court in February

By Ross Parker

Tough sledding for the Supreme Court in February with oral arguments on five thorny criminal justice cases.

Judicial Bias : What was he thinking? In Williams v. Pennsylvania the DA of Philadelphia, Ronald Castille, personally authorized the pursuit of the death penalty against Terrence Williams in connection with the office’s prosecution for a brutal murder. Williams was tried, convicted and sentenced to death. Castille supervised the direct appeal, which was denied. During post-conviction proceedings, with Castille still heading the office, a lower court found that his office had violated the Brady rule in failing to turn over exculpatory evidence during the penalty phase (that Williams had been abused along with other minors by the victim) and in presenting false argument.

Shortly thereafter Castille ran for election to the Pennsylvania Supreme Court and boasted during the campaign that he had personally sent Williams and others to death row. He won the election. By the time the case reached the state supreme court, Castille had become the Chief Justice.

Incredibly, Castille refused to recuse himself from the case when the appeal arrived in the Pennsylvania Supreme Court. The court unanimously reversed the lower court and reinstated the death sentence. Chief Justice Castille wrote a scathing concurring opinion criticizing the Defender’s Office as “ringmasters, with their parrots and puppets as a side show.”


Prediction: Reverse. It is astounding that this guy failed to appreciate that his direct participation in the case created a risk that he could not decide it fairly. The appearance of actual and potential bias was obvious particularly when the issue was his former office’s misconduct.

The voters should turn him out of office. He has damaged the reputation of good prosecutors and judges, as well as the reputation of the state’s highest court. The remedy for the Supreme Court is the conundrum. Merely remanding the case to the Pennsylvania Supreme Court without Castille sitting on the case seems hardly enough. A different vote by the other Justices is an admission of that they were previously influenced by Castille’s involvement, but reaffirming their former votes smacks of continued injustice.

Search Attenuation Doctrine:  In Utah v. Strieff the issue is whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed because the investigative stop was not supported by reasonable suspicion or probable cause.

The officers had some reason after surveillance to stop the defendant’s vehicle on suspicion of drug dealing, but the information did not meet the reasonable suspicion standard. To their happy surprise, however, after the stop they learned that there was already an arrest warrant outstanding.  A search incident to that arrest produced evidence. However the Utah courts threw the evidence out and tossed the case. A great law school exam case.

Soon after the Warren Court applied the exclusionary rule to prohibit evidence resulting from unlawful police action, it became apparent that there were circumstances where the application of the rule would not serve its purpose of deterrence. Exceptions were carved out, including standing, inevitable discovery, good faith, independent source and collateral uses.

The exception at issue in Strieff is the attenuation doctrine. Evidence which would not have been obtained but for official misconduct is not inadmissible if the causal connection with the acquisition is sufficiently attenuated. If the officers acted in good faith and their actions did not affect the justification for the search, the taint of the conduct is purged. That is, unless you are a cop in Utah or Nevada.

Other jurisdictions have held that, as in Strieff, if there was no flagrant misconduct and the officer had no control over the intervening circumstances (here the existence of a warrant), the attenuation doctrine should be applied to bar the exclusionary rule’s application. The courts are all over the map on how to apply the factors of the doctrine and are badly in need of the Court’s re-direction.

Prediction: Reverse. The Utah police officers acted in good faith, were just shy of having enough information for a legal stop, and had no control over the existence of the warrant. No purpose would be served by excluding the evidence.

Hobbs Act Interstate Commerce Element:  A prosecutor friend once said that interstate commerce was the last refuge of the Hobb, meaning that if a criminal defendant in a Hobbs Act prosecution was relying on the argument that there had been no proof that the robbery affected interstate commerce, he was in desperate straits. With the principles of de minimis, depletion of assets, aggregation, and, in attempt cases, targeting, there is precious little left for a drug rip-off artist like the defendant in Taylor v. United States to rely upon for this long-shot defense.

The Court will decide if the government has to prove the interstate commerce element in Hobbs Act cases where the robbery of a drug dealer is an inherent economic enterprise affecting commerce.

Taylor broke into two houses in Roanoke, Va.,  where he thought he could rob drugs and drug proceeds. He found none and left with a few dollars and a couple cell phones. In his Hobbs Act trial he wanted to argue that robbing drug dealers of marijuana grown in Virginia would have no effect on interstate commerce and therefore the evidence was insufficient. The trial court and the 4th Circuit, however, held that drug dealing in the aggregate affects interstate commerce, particularly where a defendant targets drug dealers. Drug dealing is an enterprise which inherently satisfies the element as a matter of law.

Two other circuits (2nd and 7th) take a different approach, requiring the jury to make an individualized decision on the interstate commerce element in drug robbery cases rather than the court make a per se finding.

Prediction Affirmed:  Whether anything remains of the interstate commerce element in Hobbs Act cases involving the robbery of a drug dealer is a tough call actually.  I don’t think the Court will go as far as the 4th Circuit in Taylor. However, if the opinion is limited to the sufficiency of the evidence, Taylor did attempt to rob drug dealers, without regard to the source of their product. Affirmed by a close margin. (I’ve changed this prediction 3 times already.)

Recklessness as a Mens Rea in Unlawful Firearms Possession:  In the 4th case for February argument, Voisine v United States, the issue is whether a misdemeanor crime with a mens rea of recklessness (rather that intentional or knowing) qualifies as predicate crime of domestic violence under the federal statute barring the possession of firearms by prohibited persons.

The defendants were each convicted of misdemeanors assaults involving domestic members and were charged under the Maine statute and doing so intentionally, knowingly or recklessly.  Some years later they were found to possess rifles, one having shot a bald eagle, and convicted of illegal possession of a firearm by a prohibited person under 18 USC 921(a)(33)A .

On appeal the Supreme Court vacated the convictions and remanded for reconsideration in light of last year’s decision in Castleman. That case held that in this statute Congress intended that the actus reus (wrongful acts) of common law battery applied and noted but did not decide whether the mens rea requirement of battery (intentional not reckless) also applied to the predicate crime. The 1st Circuit reinstated the convictions and said the acts were kosher, that recklessness was an adequate mens rea, and so here we are back again with Chief Justice Roberts and Company.

Prediction:  Reverse  There are some complicating factors in the record, like the 1st Circuit finding “volitional” elements in Maine’s recklessness mental element etc. But if the Court focuses on the root issue, I think they will make the 2nd Amendment folks happy by disqualifying predicate crimes with a reckless state of mind from the federal statute. As the dissenting judge noted in the remand decision, the majority of the lower court seemed to be result-oriented in their discussion of what the law should be because of the dangers of domestic violence.

Sex Offender Registration: The fifth and mercifully the final case, Nichols v. United States, is another law school exam question. The defendants were two convicted sex offenders who lived on opposite sides of the Missouri River, one in Kansas (think 10th Circuit) and one in Missouri (8th Circuit). Both abandoned their  residences and traveled to Kansas City International Airport and flew off to live in the Phillipines without registering as a convicted sex offender in the state of their former residence. The 8th Circuit said that this was not a violation of the registration statute and the 10th naturally disagreed.

The issue before the Court is whether the registration statute (SORNA) requires sex offenders who reside in a foreign country to update his registration in the jurisdiction in which he formerly resided and, secondly, whether the statute is an unconstitutional delegation of legislative authority to the executive branch since it grants the Attorney General discretion on who to prosecute.

The case turns upon the construction of the registration statute and whether it intended to impose a federal obligation to notify the jurisdiction the offender is leaving of his departure to a new foreign residence. Although the statute does not plainly require such a notification, the 10th Circuit found one by construing the section requiring the offender to update his residence by his departure plans in the jurisdiction where he “resides.” The lower court found that this jurisdiction of where he resides included his abandoned residence in Kansas.

The federal statute was intended to impose minimum registration standards and procedures to make possible a national sex offender registry. Congress required the states to maintain a registration system, and it permitted the states to impose more stringent requirements. Only two states (West Virginia and Washington) explicitly require offenders who move to a foreign country to provide notification of that intention to the state he is leaving. The federal statute does not impose a requirement that an offender notify the jurisdiction he is leaving. That responsibility passed to the jurisdiction of his new residence. Since foreign countries are not included in the registration system, no duty to notify the former residence state is provided for.

Prediction: Affirm the 8th Circuit decision to reverse the conviction, reverse the 10th Circuit. Congress, intentionally or not, failed to clearly regulate the registration of a sex offender who leaves the U.S. to live in foreign countries, at least until and unless he returns. It could do so by legislating a notification requirement with the state the offender is leaving. Or the states could do so. But the strained statutory construction by the courts is not the way to do so.

That wraps up February. The guys and gals on the High Bench earn every penny of their $246,800 salary in these mind-bending exercises. Three either are in their 80s or will be within a month or two. Happy Birthday to Chief Justice Roberts who will be 61 this week. But don’t expect Justice Thomas to bring the cake.

President Obama’s Dramatic Commutation Plan

By Ross Parker

This column recently presented the historic changes made by the Obama Administration to change the direction of drug enforcement, drug offender punishment and treatment for drug abusers. For the first time in four decades the executive branch has embarked on a systematic and multi-front program to reduce the penalties for convicted drug traffickers.

But it has also provided a program for early treatment of drug users who previously were limited to emergency rooms after overdoses followed by expensive hospital stays and limited rehabilitation.

One of the methods used by the President to affect the punishment scheme has been to wield his pardon and commutation power. President Obama has already set records by his commutation policy with 185 reduced sentences, 171 of which were in 2015, more than the combined number of the previous five Presidents combined.  Most of those grants have involved convicted drug traffickers serving long term prison sentences. The offenders chosen had little or no history of violence and were not repeat offenders.

Article II, section 2 of the Constitution, Clause 1 provides:  The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. The President’s clemency authority stems from the practice of Anglo-Saxon Kings to pardon, and it has not been seriously challenged either by Congress or the courts since it was included in the Constitution over two hundred years ago. It is now firmly ingrained in American public policy.

president obama- white house photo

Executive pardons and commutations are sometimes confused. Pardons are an expression of forgiveness by the President which removes the effects of a conviction, such as civil disabilities like voting, holding office or possessing firearms. Commutations, on the other hand, do not affect the conviction and only reduce sentences. The civil disabilities remain in effect. For example, a pardon can remove the legal basis for immigration deportation whereas a commutation will not.

Not since the period of 1919-1923 under the administrations of Presidents Wilson and Harding have substantial numbers of commutations been granted. During the period of 1986 to 1998 only 6 commutations were granted. Only President Johnson of the modern Presidents regularly used commutations under his executive clemency power. Other Presidents have used it sparingly: Nixon (60), Ford (22), Carter (29), Reagan (13), H.W. Bush (3), Clinton (61), Bush (11).

Now there is reason to believe that the final year of Obama’s Presidency will witness unprecedented numbers of commutations and pardons, potentially thousands, a total which will exceed any action in American history. Over 19,000 commutation petitions have been received, as many as the previous eight Presidents combined. The private pro bono group The Clemency Project is presently reviewing tens of thousands of additional petition requests for potential submission to the Office of Pardon Attorney in the Justice Department.

This onslaught is largely the result of DOJ’s announcement in April 2014 of an initiative to encourage qualified inmates to file petitions to reduce their sentences.

In 2015 President Obama spread his message of drug penalty reform to an Oklahoma prison, the first sitting President to make such an appearance. Petition requests are conditioned on a record of non-violence, a likelihood of a lower sentence under recent legislative and Sentencing Commission changes, a low-level role without significant ties to criminal organizations, gangs or cartels, custody for at least 10 years, and good conduct in prison.

DOJ recently announced an intention to hire 16 new Attorney Advisors (salary range $92,145 to $141,555) for the Office of Pardon Attorney to help process the clemency petitions and prepare recommendations to the Deputy Attorney General and the President. This move demonstrates what a high priority the initiative has in the Department and the Administration.

Criticism of Obama’s plan comes from various law enforcement and GOP sources. The President of the National Association of United States Attorneys considers his drug “reform” measures to be inconsistent with the long term security of the country. House Judiciary Committee Chairman Bob Goodlatte complained to the Attorney General that the initiative is unconstitutional, a “blatant usurpation of law making authority of the legislative branch.”

It would not be surprising for there to be legal action against the President’s plan. But it is doubtful that a court would eventually interfere (although there is some authority in dictum by Chief Justice Burger in the 1974 case of Schick v. Reed that pardons which violate other provisions of the Constitution could be invalid). However, any stay ordered by a federal judge in connection with a civil action could affect the President’s timetable. He has almost exactly one year, January 17, 2017, when the new President is sworn in, to take action.

Expect a staggering number of inmate releases in the next twelve months through commutations, probably several thousand, by far the largest number in U.S. history. Plus over 8,000 releases of inmates as a result of re-sentencing after the Obama-initiated changes by the Sentencing Commission of the Sentencing Guidelines. The combined effect will be one of the most spectacular actions by a President in the waning days of his presidency.

Whether the policy will ultimately be beneficial to the public or a dangerous miscalculation will be much debated by historians and in early morning diner klatches around America for years to come.

Obama’s Legacy of Ratcheting Down Drug Enforcement and Sentencing

president obama state of union

By Ross Parker

As Barack Obama prepares for his eighth and final year as President of the United States, it is an opportune time to review his administration’s performance in the area of the criminal justice system. Perhaps the most notable are the changes in his drug enforcement policies, especially in the area of sentencing, corrections, and treatment.

Many in law enforcement would criticize these changes. A minority has applauded them as necessary and even beneficial. Most of the public is simply oblivious to how substantial these changes have been. Reserving judgment, this column will provide a nutshell version to allow readers, and history, to decide.

Perhaps no President since Nixon declared a “war” on drugs in 1971 has done more to change the direction of drug treatment, enforcement, and punishment than Obama. At the beginning of his first term in 2009, he set this goal and, for better or worse, he has largely accomplished it, in contrast to the majority of his stated objectives in other subjects of policy. With the possible exception of terrorism, no other area has caused as deep a divide as his “reform” measures in drug enforcement. Proponents take the position that they were fiscally necessary to save an overcrowded prison system and to help restore equality and fairness. Opponents decry the measures as threatening the nation’s health and safety in the wake of an epidemic that is engulfing the nation.

Obama’s objective in reducing drug offender sentencing coincided with two factors which made it possible: a growing perception across a wide political perspective that the nation could not afford the steady increase in costs and infrastructure of an overcrowded penal system; and an increasingly vocal point of view that punishment was skewed to the detriment of minority offenders and that drug treatment was sorely lacking.

An unusual consensus among liberals, conservatives, libertarians and pragmatists has developed to support legislation which, for the first time in 40 years, reduced the drug offender penalty structure. And more legislation is pending with a good likelihood of passage in 2016.

Prior to President Obama’s agenda, from the seminal legislation in 1970, the formation of DEA in 1973, the steady increase in resources and agency priorities, the Sentencing Reform Act with higher sentencing guidelines, mandatory minimum penalties, asset forfeiture, and other measures, the policies on punishment for convicted drug offenders has largely gone in one direction. One result has been to increase the federal prison population from 25,000 in 1980 to about 220,000 today. Almost half are drug offenders. Bureau of Prisons officials estimate that the federal prisons are 30% overcrowded, and the GAO believes the number will reach 45% by 2018. The BOP budget has gone from $330 million to over $7 billion. Over 31 states have decreased imprisonment rates to deal with the effects of state prison overcrowding.

In 2010 Obama and a bipartisan Congress passed the Fair Sentencing Act, which re-set the cocaine powder/crack sentence punishment ratio from 100-to1 to 18-to-1. The result was a great reduction in mandatory minimums in future crack cases. At the urging of the Attorney General, the Sentencing Commission, with a majority of its members appointed by the President, followed suit by reducing the sentencing guidelines accordingly and making the rule change retroactive.
The Commission, again in response to the Attorney General’s testimony, went on in April 2014 to pass the “drug minus two” amendment which effectively reduced the offense level for most drug offenders by two levels and sentences by an average of two years. This resulted in the early release of 6,000 inmates in October 2015, with another 8,550 eligible to be released in November 2016. Several thousand others are in the process of seeking early release. This action will result in the largest prison releases in history.

President Obama is also setting records by his commutation policy with 171 in 2015 and tens of thousands pending review by the Justice Department, more than the combined number of the previous five Presidents combined. Most of those grants have involved convicted drug traffickers. In 2015 he spread his message of reform to an Oklahoma prison, the first sitting President to make such an appearance.

One of the by-products of the Affordable Care Act has been to provide treatment for tens of thousands of drug abusers. Formerly, few addicts were granted treatment from insurance companies and ended up in emergency rooms and hospitals after an overdose. The result has been a sea change in improvement for treatment opportunities. The Presidential National Drug Control Strategy estimates that, for every dollar spent on drug abuse treatment, $11 are saved in health care and criminal justice costs. Other program funding increases have gone to prison re-entry programs, drug courts, mental health treatment, and crisis intervention programs.

Two significant bills, part of Obama’s drug enforcement policy agenda, are pending in Congress. The Smarter Sentencing Act of 2015 would reduce mandatory minimums further, and the Sentencing Reform and Corrections Act of 2015 would reduce enhanced penalties for repeat drug offenders, eliminate three-strikes mandatory life sentences unless the prior convictions were for serious or violent drug violations, and provide early releases to prisoners who engage in programs involving education, work training, or drug rehabilitation. Both of these bills have broad bipartisan support in Congress.

The Department of Justice has instituted a plethora of other actions which have changed drug investigation and prosecution policies. The White House Drug Czar has called for an end to the “war” on drugs, and policy re-direction orders have been sent to the USAOs and to the enforcement agencies.

The latest of these changes, during December 2015, has been to shut down the Asset Forfeiture Equitable Sharing Program initiated in 1984. Under the program more than $7 billion has been provided to state and local police who participate in the seizure of assets from drug operations. DOJ cited budget cuts as the reason for the action. Law enforcement groups have criticized the action as shortsighted and an impediment to the effectiveness of cash-strapped police departments. Others have advocated the decision because of their opinion that the absence of the condition of arrests to the seizures encouraged decisions based on dollars rather than prosecutions.

Will history judge President Obama’s wholesale reform of the prosecution, sentencing, and treatment of drug offenders as a step in the right direction or as a dangerous experiment with the nation’s health and safety? Some columnist in 2040 should take up the subject.

Three Key Criminal Cases Before the U.S. Supreme Court in January


By Ross Parker

The Supremes will consider three criminal cases in oral arguments scheduled for January 12 and 13. The effect of the decisions are not broad, but the cases illustrate the Court’s responsibility to keep the criminal justice system as construed by the lower courts consistent, rational, and based on precedent.

Those who are not part of the criminal justice system are often surprised when they learn that Double Jeopardy does not prevent separate sovereigns from launching separate prosecutions for the same conduct by a defendant. The most common example is when a defendant faces charges from a single course of conduct in both state and federal court. An acquittal or conviction in one jurisdiction does not preclude charges in another since each has the right to define and punish offenses committed in its jurisdiction.

Puerto Rico v. Sanchez Valle will decide whether that territory and the federal government are separate sovereigns permitting dual prosecutions. First, a bit of history. The United States obtained the island from Spain after the Spanish American War in 1898. It was a “splendid little war” which made the U.S. a colonial power and made Teddy Roosevelt the President. What could establish his executive qualifications better than the ability to lead a bunch of cowboys and polo players up San Juan Hill?

After the treaty in 1899 Congress established a civil government there with the Governor and the Supreme Court of Puerto Rico appointed by the President and any laws passed by the legislature submitted to Congress for potential annulment. In 1950 Congress offered Puerto Rico a “compact” of self-government. The islanders passed a Constitution in 1952, which was approved by Congress and President Truman. The Constitution removed the oversight powers of the President and the United States Congress, and Puerto Rico was empowered to make its own criminal laws.

Sanchez Valle was charged with illegal sale of firearms by Puerto Rican authorities. While the case was pending, however, he pled guilty to the federal version of the same offense and was sentenced to 5 months in prison, a much lighter sentence than the one he faced by the territorial charges. The trial court dismissed those latter charges as violating Double Jeopardy. The Puerto Rican Supreme Court agreed, holding that Puerto Rico was not a separate sovereign from the United States government.

The case comes down to whether the source of Puerto Rico’s authority to pass and enforce criminal laws is the 1952 Constitution or the ratification of this Constitution by Congress. Is Puerto Rico a sovereign part of the federal system in the same sense as states or an Indian tribe or is there enough of a vestige of colonialism to make the federal government the ultimate source of public power?

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Supreme Court in December Will Hear Case on Texas Businessman Convicted of Illegally Accessing Protected Computer


By Ross Parker

The only oral argument before the Supreme Court during the last month of 2015 on an issue involving criminal law or procedure is Musacchio v. United States. The case involves the conviction on three counts of a North Texas businessman for conspiracy and for making unauthorized access to a protected computer of a competitor (for which he was previously employed) through a back-door password. He was sentenced to 63 months in prison. The civil case for his conduct was settled for $10 million.

The case presents two issues:

  1. Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment?
  1. Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal?

Sounds like pretty dry stuff, huh? The kind of legal fare appetizing only to criminal lawyers and probably few of them. It, however, should present a meal of delicious irony during oral argument.

Stripped of its legal minutia, the fact is that both parties lapsed at the trial level on different issues and are now seeking appellate forgiveness under an application of the “plain error” rule. But each will want no such forgiveness for their opponent on the other issue. The government offers in addition a multitude of other reasons why the defense legal analysis is erroneous and, in any event, not applicable.

As to the first issue the statute permits alternative theories of proof for conviction. The evidence can establish that the defendant agreed to make unauthorized access (or made such access) or that he conspired to exceed authorized access (or actually exceeded such authorized access). The proofs in this case relied upon the former alternative both as to the conspiracy count and the two substantive counts.

The statute was properly charged in the indictment. But the trial judge, apparently in disregard of the government’s correct requests, presented the erroneous charge to the jury that the evidence had to be proven conjunctively (and) rather than disjunctively (or) as to the two alternative elements in the conspiracy count. The government did not object to the instruction, which it asserts was inadvertent and “clerical.” Now the government argues, among other things, that this was plain error which could be excused on appeal.

The defendant, however, relies on cases holding that the error waived appellate consideration and correction of the issue and that the appellate review of the sufficiency of the evidence requires proof of both alternative theories. Hence, the “law of the case” applies. And the Circuit Courts are somewhat split.

On the second issue, the tables are turned. The defendant, in effect, argues for forgiveness for his counsel’s failure to raise at trial the statute of limitations defense. This was plain error which can, in the view of some Circuit Courts, be raised on appeal. This time the government counters that the issue is not jurisdictional, unreviewable on appeal, and that the defendant waived the issue. And, again, there is some difference in the Circuits on the reviewability of this issue.

Of course few things that find their way to the Court are ever simple. The plain error/waiver rule for the two issues involves different rationales and case law threads. The Court could excuse both parties’ lapses, neither of them, or one and not the other. A decision behind door # 3 might seem anomalous to common sense, but there are a host of related arguments and sub-issues that bear on the analysis of the contexts of both questions.

Prediction: The government should win this round of the litigation. The jury found that both of the alternative methods of proof were established by the evidence, and it is weird to require the Court to, in effect, create a crime requiring both methods to review the sufficiency of the evidence just because the government didn’t object to a single erroneous instruction. As to the statute of limitations issue, the defendant should lose this one, also, since there is no reason to believe that the statute was intended to make the question jurisdictional. To make the question reviewable on appeal would prevent the government from raising factual issues at trial that could convince the jury to reject the claim.

However, in round # 2, the defendant will undoubtedly file a post-conviction, habeas corpus claim that his trial attorney rendered ineffective assistance of counsel in failing to file a statute of limitations objection. He could win a reversal of the conspiracy conviction although, unless he gets a re-sentencing, his concurrent sentence on one of the remaining counts makes it unlikely he will be home to watch the Dallas Cowboys games anytime soon.