Links

Columnists



Site Search


Entire (RSS)
Comments (RSS)

Archive Calendar

June 2021
S M T W T F S
 12345
6789101112
13141516171819
20212223242526
27282930  

Guides

How to Become a Bounty Hunter



Uncategorized

President Obama’s Dramatic Commutation Plan

By Ross Parker
ticklethewire.com

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
ticklethewire.com

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 ticklethewire.com columnist in 2040 should take up the subject.

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

US_Supreme_Court

By Ross Parker
ticklethewire.com

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?

Read more »

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

US_Supreme_Court

By Ross Parker
ticklethewire.com

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.

Marijuana Use and Disorders Double

By Ross Parker
ticklethewire.com

Marijuana use has doubled in the last decade, and with that has come a doubling in the use disorders associated with it, according to a recent medical study by a Columbia University epidemiologist published this week in The Journal of the American Medical Association Psychiatry and in Medscape Medical News.

Dr. Deborah Hasin reported that the attitude of increasing numbers of the population is that the drug is a harmless natural substance. Because of that shift in perception, the prevalence rates of use have increased from 4.1% in 2001 to 9.5% in 2014. This increase was greatest among women (2.6% to 6.9%), African Americans (4.7% to 12.7%), Hispanic Americans (3.3% to 8.4%), and older people (.04% to 1.3%). Lower income groups showed the greatest increase.

The study’s findings were based on two nationally representative, face-to-face interview surveys of US adults aged 18 years and older: the 2001 National Epidemiologic Survey on Alcohol and Related Conditions, and the 2013 National Epidemiologic Survey on Alcohol and Related Conditions.

marijuana-istock

The prevalence rates of marijuana use disorders among the general population nearly doubled from 1.5% to 2.9%. Among marijuana users, however, that figure declined from 35.6% to 30.6%. The difference lies in the increased number of users in the general population as more states legalize its use in one way or another and more people consider its use as having no risks. Currently 23 states authorize use for medical purposes and 4 for recreational use.

If the number of states legalizing use continues to rise, the authors of the study advise that we should be prepared for greater numbers of addiction, vehicle crashes, emergency room visits, psychiatric symptoms, poor quality of life, cognitive decline, and use of other drugs, according to other published medical studies.

The Continuing Rapid Rise of Seizures and Overdose Fatalities Involving Fentanyl

By Ross Parker
ticklethewire.com

The CDC (Centers for Disease Control and Prevention) issued an alert this week about the continuing rapid rise of seizures and overdose fatalities involving fentanyl. As reported in this column last June, fentanyl is a fast-acting opioid , 50-100 times stronger than morphine, that is now being used by sellers to mix with heroin in order to increase the “high.” The problem is that the substance is so much more potent that users often do not know of this increase and have a greater risk of suffering a fatal overdose.

The danger posed by this development has risen dramatically in the last three years, and the increase in 2014 was at epidemic levels. DEA has responded with ramping up enforcement activity. Seizures have gone from 618 in 2012, 949 in 2013, to a staggering 4,585 in 2014. These seizures are concentrated in ten states, with Ohio having the highest number of seizures (1,245), followed by Massachusetts (630), and Pennsylvania (419).

Most of this rise has been from illegal manufacturing operations rather than diversion of pharmaceutically produced drugs, according to a report by the DEA Office of Diversion Control. The alert was reported in this week’s Medscape Medical News.

The CDC asked law enforcement to participate in expanded surveillance and record-keeping programs, along with medical examiners and emergency rooms, to report these seizures to local public health departments. It also warned law enforcement officers to take special safety precautions to avoid exposure to the drug either through skin contact or by inadvertently inhaling it.

A Look at Some Upcoming Supreme Court Cases of Note

By Ross Parker
ticklethewire.com

Supreme Court Justices have a busy November with, among their other duties, six days of Oral Argument, including five cases of interest to criminal justice folks on both sides of the aisle.

US Supreme Court

Death Penalty Jury Selection:   No Court calendar would be complete without a contentious death penalty case. Foster v. Chatman involves the issue of whether Georgia courts bungled in failing to recognize and remedy a racially discriminatory jury selection.

In Batson v. Kentucky (1986) the Supreme Court held that equal protection is denied to an African American defendant if members of his race are purposefully excluded from the jury. That includes the prosecution’s use of peremptory challenges. Once the defendant makes a prima facie (on the first appearance) case of discrimination, the prosecution must prove that the challenges had a neutral, non-racial basis.

In this case the defendant, an 18 year old African American man with an IQ measured to be between 58 and 80, was charged with killing an elderly white woman. The prosecution challenged all four of the black prospective jurors but presented numerous neutral explanations for having done so.

In the habeas corpus proceeding decades after the defendant’s conviction and sentence to death, the defendant obtained the prosecutor’s jury selection notes. These marked the names of the black jurors with a “B,” highlighted their names, and ranked them against each other in case “it comes down to having to pick one of the black jurors.” The notes were contradictory as to neutral bases for challenges and listed all of the black jurors as ”Definite NOs,” along with a single white juror.

The Georgia courts during direct appeal and habeas proceedings blithely rejected the defendant’s arguments and accepted the prosecutor’s assertions, despite the clear plan evidenced in the notes.

Prediction—reversal by a 7-2 vote. Affirming this conviction would confirm the opinion of many that Batson challenges are meaningless as long as the trial prosecutor has disingenuously prepared neutral explanations which have been found acceptable in previous cases and as long as trial judges lack the courage to challenge the prosecutor’s veracity in the face of such questionable circumstances. The case does a disservice to all of the honest prosecutors who seek a fair and impartial jury regardless of race.

Substitute Assets in Forfeiture Actions  — Luis v. United States pits the government’s statutory authority to use substitute assets to satisfy a forfeiture conviction against a criminal defendant’s right to use non-criminal but forfeitable assets to retain counsel of choice.

The defendants were charged in a massive Medicare kickback scheme in south Florida. At a pretrial hearing the government presented probable cause that the defendant had so dissipated his assets on luxury purchases that a preliminary injunction restraining even non-traceable assets was justified since their seizure, on conviction, would be necessary as substitute assets to satisfy a forfeiture verdict. The defendant argued that those non-criminal assets were needed to pay the attorney chosen to defend him in the case. The trial court restrained the assets.

In the Kaley case last term the Court upheld the restraint of criminally tainted assets, the only ones sought for forfeiture in the case, but did not rule on the restraint of legitimate assets. In the oral argument in the case there was some ambiguous indication that the Solicitor General arguing the case for the government, along with three of the Justices, assumed that such an injunction would pose constitutional problems. The context of the discussion, however, may well have been limited to cases in which only criminally traceable assets were sought for forfeiture.

In weighing the policy issues of the case, the question is whether a defendant should be able to use forfeitable (but legitimate) assets to pay his attorney even though the interests of forfeiture will be defeated by doing so. If so, there will be little disincentive to keep wealthy defendants from hiding and spending criminal proceeds to avoid government seizure. Defendants will essentially be authorized to use forfeitable assets to pay legal fees.

Prediction—Affirmed 6-3 in favor of the government’s injunction restraining forfeitable assets.

Prisoner Litigation Fees:  In Bruce v. Sanders the Court will resolve a split in the Circuits on an interpretation of the Prison Litigation Reform Act. The purpose of that statute was to stem the flood of frivolous prisoner cases by requiring them to pay filing fees if they are able to do so. If they cannot pay the fee at the filing, the statute provides a formula for assessing installments from the prisoner’s trust account, with two limitations. No “exaction” from the account is permissible if it has a balance of $10 or less, and if the prisoner has no balance the filing is still permitted without assessment of cost.

The statute provides an exaction formula of 20% of the prisoner’s monthly income toward the payment of the filing fees, to be forwarded by the prison to the court where the case is filed. The provision, however, fails to make clear how this process is to be administered when the prisoner files multiple cases—does he have to pay 20% for each case (5 Circuits say “yes”) or is the 20% capped regardless of the number of cases (3 Circuits) ?

In the per-case interpretation, when a prisoner has 5 or more cases pending, the warden will exact his entire monthly income (minus the $10 minimum balance) until all fees are satisfied. In the per-defendant interpretation the warden will continue to exact the account until all fees are satisfied. For some prisoners, such as the plaintiff in this case who has over 100 cases filed, this process can consume the entire period of the sentence.

The Circuit split revolves around the construction of the statutory language. The subsection which precedes the formula requirement appears to be reasonably clear as referring to a per-defendant approach, but the subsection in question is ambiguous.

The case has attracted attention on both sides of the issue. Amici curiae briefs have been filed by the Southern Poverty Law Center, as well as by 20 states. Regardless of the result, the resolution will be welcome news for the Bureau of Prisons, which presently has to figure out the diverging views of the Circuits in administering the program.

Prediction—5-4 in favor of the per-case interpretation, meaning that prisoners who file multiple cases will pay the price in having less to spend on sundries.

Sexual Exploitation of Children Statutory Sentence Enhancement:  The case of Lockhart v. United States involves yet another split in the Circuits over statutory interpretation. The issue involves the mandatory minimum enhancement for possession of child pornography convictions. This enhancement is triggered by a prior conviction under state law relating to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

The disagreement is whether the latter phrase “involving a minor or ward” applies to all three of the categories of predicate offenses or just the third one involving abusive sexual conduct. If it applies only to the last category, prior sexual abuse convictions involving adults would qualify, thus enhancing the sentences of a broader scope of defendants.

The defendant is one of those affected since his prior conviction was the attempted rape of his 53 year old girlfriend. He pled guilty to possessing child pornography but argued that his sentence should not be bumped up to the 10 year mandatory minimum since the enhancement statute requires that all three categories of predicate offenses involve minors.

The trial court rejected this interpretation, following 4 circuits which have ruled that the phrase “involving minors” modifies only the third category of predicates. Two circuits have held to the contrary, that all predicates must involve minors.

The battle revolves around a contest between the “last antecedent rule” (modifying only the phrase it immediately follows) versus the “series qualifier rule” (modifying all of the terms in a series). The statutory history and context seem to support the former, broader approach.

Prediction—Affirm the broader interpretation of predicate offenses as applying to all categories of prior sex abuse convictions, by a slim majority.

Immigration Act Predicate Offenses: The issue in Torres v. Lynch involves yet another Circuit split over the statutory interpretation of a state predicate offense, this one in the context of what constitutes an aggravated felony under the Immigration and Nationality Act (INA). Such a prior conviction subjects the alien to removal from the country without the benefit of eligibility for “cancellation,” i.e., discretionary relief from removal.

One of the categories of aggravated felonies includes those “described in” certain federal statutes, such as in this case, arson. The petitioner’s argument is that state arson convictions do not qualify since they do not, as federal arson convictions, include an element of affecting interstate commerce. The 3rd Circuit has adopted this position; 4 others have included analogous state offenses as predicate aggravated felonies without the interstate commerce requirement.

Prediction—Affirm following the majority of Circuits which have found logic and legislative history to support giving the Bureau of Immigration Affairs some deference in interpreting the statute to support the purpose of facilitating removal of aliens with prior aggravated felonies.

So be prepared for a lot of arcane statutory construction arguments, bread and butter for lawyers, but one of the reasons good fathers urge their children to do something socially useful like bull-riding or being a PR consultant for venal pharmaceutical companies, rather than going to law school.

 

Despite All the Dead Motorists, GM Gets to Pay Off Justice Department

handshake

By Allan Lengel
ticklethewire.com

DETROIT — Imagine if you will, if former Detroit Mayor Kwame Kilpatrick was able to pay the Justice Department hundreds of thousands of dollars instead of going to prison for 28 years. Imagine if Boston gangster James “Whitey” Bulger, accused of having a hand in 19 murders, was able to pay a couple million dollars to the Justice Department instead of serving life in prison.  Imagine if Dr. Farid Fata, a Detroit area oncologist who administered chemotherapy to patients who didn’t even have cancer, paid a $10 million fine instead of getting a 45-year sentence.

And then imagine, if you will,  if General Motors was able to pay $900 million to the Justice Department in lieu of having some of its employees go to prison for sweeping under the rug a gravely serious problem with faulty ignitions that resulted in well over 100 deaths.

Call it murder.  Call it negligent homicide. Call it manslaughter.

Call it a bloody injustice. Call it a shame that General Motors is able to pay off the Justice Department to make a criminal case go away.  Reuters reported Wednesday that GM has agreed to pay about $900 million in fines and sign a deferred-prosecution agreement to end a federal investigation into its handling of problems.

The Justice Department will charge the company, not any individuals, with criminally hiding the defect from regulators and in the process defrauding consumers. So what.

The Justice Department has historically failed to address some corporate crimes appropriately by letting some folks off without prison time. The message is clear in cases like this: “Just give us money and we’ll make it go away.” GM could have recalled these dangerous cars with faulty ignitions 10 years ago, but nobody made them do it, so they didn’t.  Lives could have been saved.

Sure, GM’s CEO Mary T. Barra can take some credit for cleaning house and getting rid of those responsible. Now, those folks have lawyered up and shut their yaps.

The word is that the Justice Department didn’t have enough incriminating documents or a real whistleblower to put together a solid criminal case against individuals.

But that’s no reason not to pursue a criminal investigation. If the feds could get N.Y. Underboss Salvatore “Sammy The Bull” Gravano to flip and rat out his boss, John Gotti, they could certainly have worked the case more and gotten some white collar workers to flip on co-workers.

Again, Mary Barra and GM should get some credit for cooperating with a federal investigation and offering payouts to victims, but that shouldn’t mean a free pass for those who could have acted responsibly and saved lives.

The $900 million is certainly a lot of money to you and I. But for GM, that’s a quarterly earning. GM can absorb that.

We rely on the automakers to produce a safe product, one that many of us rely on nearly everyday of our adult lives.  We don’t expect the automakers to be perfect and always produce a flawless product.

But we do expect them to respond appropriately, and in a timely manner, when they realize a flaw in their product could kill us.

Unfortunately, the Justice Department has once again sent a message to the automakers that cover ups are OK, so long as you have the money to pay for them when you get caught.