Here’s what happened.  Maples was convicted of murder and sentenced to death by an Alabama state court.  His direct appeals were unsuccessful.  He then launched a collateral attack in state trial court.  The Supreme Court recounted what happened next: 

His petition, filed in August 2001, was written by two New York attorneys serving pro bono, both associated with the same New York-based large law firm. An Alabama attorney, designated as local counsel, moved the admission of the out-of-state counsel pro hac vice. As understood by New York counsel, local counsel would facilitate their appearance, but would undertake no substantive involvement in the case.

In the summer of 2002, while Maples’ postconviction petition remained pending in the Alabama trial court, his New York attorneys left the law firm; their new employment disabled them from continuing to represent Maples.They did not inform Maples of their departure and consequent inability to serve as his counsel. Nor did they seek the Alabama trial court’s leave to withdraw. Neither they nor anyone else moved for the substitution of counsel able to handle Maples’ case.

In May 2003, the Alabama trial court denied Maples’ petition. Notices of the court’s order were posted to the New York attorneys at the address of the law firm with which they had been associated. Those postings were returned, unopened, to the trial court clerk, who attempted no further mailing. With no attorney of record in fact acting on Maples’ behalf, the time to appeal ran out.

Thereafter, Maples petitioned for a writ of habeas corpus in federal court. The District Court and, in turn, the Eleventh Circuit, rejected his petition, pointing to the procedural default in state court, i.e., Maples’ failure timely to appeal the Alabama trial court’s order denying him postconviction relief. Maples, it is uncontested, was blameless for the default.

In order to overcome a procedural default, a habeas petitioner must normally show cause to excuse the default and resulting prejudice.  The Supreme Court granted cert. in Maples’ case to decide whether he satisfied the “cause” prong.  (Thus, although Maples won in the Supreme Court, the Court seems to have left open the possibility that he might still lose on “prejudice” on remand.)

In trying to establish “cause,” Maples’ big problem was Coleman v. Thompson, 501 U.S. 722 (1991), which held that the ineffectiveness of postconviction counsel does not qualify as cause:

That is so, we reasoned in Coleman, because the attorney is the prisoner’s agent, and under “well-settled principles of agency law,” the principal bears the risk of negligent conduct on the part of his agent.  (12)

So, was there something in the conduct of Maples’ lawyers that went beyond mere negligence?  Yes, ruled the Court:

A markedly different situation is presented, however, when an attorney abandons his client without notice, and thereby occasions the default. Having severed the principal agent relationship, an attorney no longer acts, or fails to act, as the client’s representative.  His acts or omissions therefore “cannot fairly be attributed to [the client].” (12-13 (citations omitted))

The Court thus drew a “distinction between attorney negligence and attorney abandonment.” (14 n.7)  And, reviewing the whole course of conduct of Maples’ pro bono attorneys, the Court seemingly had little difficulty concluding that they crossed the line from negligence into abandonment.

One interesting question that all of this raises is whether Maples will provide any benefit to any other habeas petitioners.  The Court’s decision rested on a lengthy analysis of the facts specific to Maples’ situation, and those facts were indeed quite extraordinary.  Certainly, if the Court were so inclined, it would have a ready basis for distinguishing Maples from just about any other case that is likely to arise in the future.  Recall Alito’s remark, in his concurring opinion, that Maples was a “perfect storm.”

Yet, if there is one thing we have learned from more than a quarter century of litigation under the Strickland test for ineffective assistance of counsel, it is that the seemingly stark difference between not having a lawyer and having an ineffective lawyer is illusory.  As a practical matter, the failure to appoint a lawyer at all stands merely as the endpoint in a continuum of failures of representation.  We’ve seen cases of drunk lawyers, sleeping lawyers, depressed and despondent lawyers, lawyers who do absolutely no pretrial preparation, and on and on.  In many of these cases, it seems that the client might actually have been better off not having a lawyer at all — at least that way, the client would have been on notice that he had to look out after his interests.

Similarly, attorney abandonment is not a simple either/or proposition, but is instead a question of degree.  Again, think of a continuum, with simple negligence at one end and the Maples facts at the other.  In between, one may find any number of fact patterns that go beyond mere carelessness and suggest a more thoroughgoing disregard for the client’s interests — even if not quite at the level of Maples’ attorneys.  It seems possible that the Court’s endorsement of a negligence/abandonment distinction may open the door for habeas petitioners in some of these other factual scenarios, too.

Put differently, there seems nothing intrinsic to the concept of “abandonment” that would necessarily limit its reach to the most extreme cases.

This brings us to the most mysterious aspect of the Maples majority opinion: the lengthy discussion of the manifest deficiencies in Alabama’s system for providing indigent defense.  Reading the first few pages of the opinion, one might get the mistaken impression that this was a class-action lawsuit seeking structural reform, rather than a single petitioner litigating over the application of a narrow, technical aspect of habeas law.  So why do we get all of this structural stuff, which seemingly ends up not playing into the Court’s resolution of Maples’ appeal?

Indeed, this is precisely why Alito filed his concurring opinion — to emphasize that “whatever may be said about Alabama’s system, I do not think that Alabama’s system had much if anything to do with petitioner’s misfortune.”  (2)

The motives of Justice Ginsburg, writing for the majority, are not entirely clear in this regard, but perhaps she was trying to suggest that what happened to Maples was not just bad luck, but rather a predicable consequence of systemic failure.  Although the facts of Maples were  particularly extreme, the systemic flaws that produced Maples will also predictably produce many other cases on the abandonment continuum.  And if we keep our eyes on the underlying systemic problems that run through all of these cases, perhaps we will be less inclined to see Maples as so readily distinguishable from the next case of procedural default.

Here are the (quite critical) conclusions of the Sentencing Project:

Results vary somewhat, but when inconsistencies and research errors are adjusted the savings associated with investing in private prisons appear dubious. Even minimal savings are far from guaranteed, and many studies claiming otherwise have been criticized for their methodology. The available data belies the oft-claimed economic benefits of private contracting, and points to the practice being an unreliable approach toward financial stability.

Even if private prisons can manage to hold down costs, this success often comes at the detriment of services provided. Nationwide, public funds for prisons are already limited, leaving little excess spending that can be cut. Therefore, private prisons must make cuts in important high-cost areas such as staff, training, and programming to create savings.  The pressure that companies feel to maintain low overhead costs combined with less direct oversight are likely what led researchers at the University of Utah to conclude that, “quality of services is not improved” in private prisons.

Finally, private prison companies’ dependence on ensuring a large prison population to maintain profits provides inappropriate incentives to lobby government officials for policies that will place more people in prison. This is evidenced by the creation and coordination of model legislation through conservative lobbying groups, as well as in the political contributions and lobbying efforts of individual companies. This effort to increase reliance on incarceration comes at a time where America’s rate of imprisonment is the highest in the world and when the prison population is far beyond the point of diminishing returns in terms of public safety.

The available evidence does not point to any substantial benefits to privatizing prisons. Although there are instances where private prisons result in small savings, the structure and demands of for-profit prisons appear to produce a negative overall impact on services. In order to reconcile this information with the continued claims that private prisons are superior, one must assume that these contentions are couched more in ideology than in facts.

With that backdrop in mind, here’s what happened in Minneci v. Pollard.  The inmate plaintiff, Pollard, alleged that he was injured in a fall and that the injury was mishandled by prison medical staff and other prison employees in ways that amounted to “deliberate indifference” in violation of the Eighth Amendment.  He sued for damages under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), which permits such lawsuits against federal agents for violations of constitutional rights.  However, the Supreme Court has generally taken a restrictive approach to Bivens actions since about 1980, including its decision in Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), which ruled out Bivens actions against the corporations that run private prisons.

Malesko did not necessarily foreclose Pollard’s claim because Pollard was suing individual employees, not the corporation as a whole.  In the end, however, eight justices saw no reason to recognize the distinction, with only Justice Ginsburg deciding to the contrary.

For the majority, the key to the case was that the defendants could have been sued under state tort law; in their view, it seems that Bivens only provides a stop-gap remedy for constitutional violations that lie beyond the reach of tort law.  This does seem consistent with the thrust of recent Bivens jurisprudence.

But it is important to note that the Court does not insist that plaintiffs must necessarily fare as well under state law as under Bivens:

We note, as Pollard points out, that state tort law may sometimes prove less generous than would a Bivens action, say, by capping damages, see Cal. Civ. Code Ann. §3333.2(b) (West 1997), or by forbidding recovery for emotional suffering unconnected with physical harm, see 629 F. 3d, at 864, or by imposing procedural obstacles, say, initially requiring the use of expert administrative panels in medical malpractice cases, see, e.g., Me. Rev. Stat. Ann., Tit. 24, §2853, (Supp. 2010); Mass. Gen. Laws, ch. 231, §60B (West 2010). But we cannot find in this fact sufficient basis to determine state law inadequate.

. . . .

Rather, in principle, the question is whether, in general, state tort law remedies provide roughly similar incentives for potential defendants to comply with the Eighth Amendment while also providing roughly similar compensation to victims of violations.  (10-11)

This begs the question, of course, of just how robust a state-law remedy must be in order to count as “roughly similar.”  The Court did leave itself a little wiggle room in this regard to handle different sorts of Eighth Amendment claims against private defendants differently in the future:

[W]e concede that we cannot prove a negative or be totally certain that the features of state tort law relevant here will universally prove to be, or remain, as we have described them. Nonetheless, we are certain enough about the shape of present law as applied to the kind of case before us to leave different cases and different state laws to another day. That is to say, we can decide whether to imply a Bivens action in a case where an Eighth Amendment claim or state law differs significantly from those at issue here when and if such a case arises. (11-12)

In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

Ultimately, the district judge decided that there was insufficient evidence that the jury had deliberated on November 29 and denied Webster’s petition. The Seventh Circuit affirmed last week, holding that the district judge’s fact-finding was not clearly erroneous. Webster v. United States (No. 09-2308).

What I find interesting about the case (apart from the absurdity of asking people about the details of their decade-old jury service and the predictably off-base answers) is the district judge’s admission into evidence of the jurors’ recollections of what happened during their deliberations. This seems to conflict with the basic thrust of Rule 606(b) of the Federal Rules of Evidence, which prohibits jurors from testifying about “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.”

As the Seventh Circuit observed, “Rule 606(b) codifies the common-law prohibition against using juror testimony to impeach a verdict, which exists to promote the finality of verdicts, protect jurors from harassment, and encourage full and frank discussion in the jury room.” These concerns have always struck me as a little exaggerated, particularly when measured against the need to ensure reliability in judgments in cases involving long prison terms, like Webster’s. However, the facts in Webster point to an additional concern: jurors’ memories are themselves apt to be pretty unreliable, particularly after the passage of a few years and perhaps all the more so when the topic of questioning is an event that, while legally significant, might pass with little notice from laypeople. (Assume, for instance, that Webster’s theory were true: a bailiff instructed the eleven jurors to go ahead and deliberate despite the absence of the twelfth. I suspect that most laypeople in these circumstances would trust the bailiff as a figure of authority and follow his directions without much question or concern.)

Although the Seventh Circuit could have affirmed in Webster without addressing the Rule 606(b) question, the court went out of its way to indicate that the district judge erred in admitting the jurors’ recollections about deliberations on November 29. There seems not to be much precedent on the application of the Rule in these sorts of circumstances, but the Seventh Circuit did cite one prior district court decision holding that Rule 606(b) prohibits testimony about deliberations during one juror’s temporary absence.

Is this the right answer? The Seventh Circuit characterized the jurors’ testimony as being about “matter[s] . . . occurring during the course of the jury’s deliberations,” which would bring the testimony within the literal terms of the Rule. It’s not clear to me, though, that the fact of deliberation constitutes a “matter . . . occuring during the course of the jury’s deliberations.” I think one could plausibly interpret the Rule to protect the content of deliberations, but not the fact that the jury did or did not deliberate on a particular day.

Then, too, there are the exceptions to the Rule 606(b) prohibition. Jurors may testify about: “(1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.” Although the possibility seems not to have been raised or considered in Webster, I think there may be an argument that the alleged rogue bailiff counts as an “outside influence . . . improperly brought to bear upon any juror.”

None of this really matters to Webster because the juror testimony in his case was so unreliable and inconclusive. But courts and counsel in future cases in which the juror testimony is stronger might do well to note that the Seventh Circuit’s treatment of the Rule 606(b) issue in Webster was mere dicta.

Cross posted at Prawfs and Life Sentences.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.

On the one hand, there is the standard from United States v. Chapman, 386 U.S. 16, 22 (1967): “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”  On the other, there is the “overwhelming evidence of guilt” standard from Schneble v. Florida, 405 U.S. 427, 430 (1972): “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [erroneously admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [evidence] was harmless error.”

It requires some effort to appreciate a difference between the standards, but the formulations do indeed suggest two distinct ways of performing the analysis.  The first standard invites an assessment of what actually happened at trial and what the jury’s actual views of the case were.  The second standard invites more of an independent assessment by the appellate court of the strength of the government’s case.

In practice, though, I suspect that the distinction between the two standards collapses in most cases.  That is because the appellate court will rarely have any reliable basis for determining what really mattered to a particular jury.  Juries normally render bare-bones general verdicts — a simple declaration of guilty or not guilty — and formal examination of jurors about what happened during deliberations is almost always forbidden.  In light of these limitations, an appellate panel really has no alternative in most cases but to try to imagine what it would have done if it had been the jury.  This no doubt helps to explain why the courts have not felt it necessary to resolve the longstanding ambiguity.

It is possible, though, that there are some cases in which the formulation really does matter, and Vasquez just may be such a case.  Here’s what happened.  Vasquez drove to a Denny’s parking lot to meet Perez, who was attempting to complete a purchase of a kilogram of cocaine.  It turned out, however, that the seller was working with the police, and Vasquez soon found the car surrounded by cops.  Rather than surrendering, Vasquez attempted a getaway, crashing into a couple of police cars in the process.  After a chase by car and on foot, Perez and Vasquez were apprehended and prosecuted on drug charges in federal court.  Perez pled guilty, but Vasquez went to trial.

At trial, Vasquez’s defense was that he was simply in the wrong place at the wrong time.  Perez’s wife was his key witness. She testified that she had asked Vasquez to pick up Perez at the parking lot, apparently indicating that he did it as a favor for her, not as a knowing participant in a drug deal.

In order to undermine the testimony of Perez’s wife, the government played for the jury recordings of phone conversations between Perez and his wife while Perez was in jail following his arrest.  Through those recordings, the jury learned that Vasquez’s lawyer had advised his client that he would likely lose at trial and should plead guilty.  When Vasquez’s lawyer then stood up to deliver his closing argument a little while later, one imagines that he had very little credibility left with the jury.

On appeal to the Seventh Circuit, all three members of the panel agreed that the trial judge had committed an error in admitting the sensitive portions of the recordings, at least without an appropriate limiting instruction for the jury.  However, the majority concluded that the error was harmless, reasoning that the evidence of Vasquez’s guilt was “overwhelming.”  The majority particularly emphasized the importance of Vasquez’s getaway attempt as evidence of guilt.  The majority also cited some other items of evidence, including testimony indicating that Vasquez knew the car contained $23,000 in cash.

For the majority, the harmless error determination was quick and easy, requiring only a brief recounting of the evidence against Vasquez, with no attention to the question of what the jury actually thought about the evidence.  The dissenting judge provided much more extensive analysis, carefully parsing the trial record to determine what impact the evidence actually had on the jury.  Here’s a taste:

The [Chapman] standard is not easy to satisfy, and four factors here lead me to conclude this error was not harmless: the modest strength of the rest of the government’s case against Vasquez, the prejudicial character of the evidence that was admitted erroneously, the fact that the jury acquitted Vasquez of one of two charges, and the importance that the government itself attributed to its flawed rebuttal evidence.

. . .

Without the flight evidence and the MCC tapes erroneously admitted for their truth, then, the government had evidence that was legally sufficient to convict Vasquez, but the case was far from a slam-dunk. The dramatic evidence of the dangerous flight strengthened the case substantially and makes it easier for my colleagues to describe the district court’s error as harmless. But the flight evidence cannot carry that much weight, in my view. The Supreme Court and we have repeatedly cautioned against too much reliance on flight as evidence of guilt for the crime charged because there are so many links in the chain of inferences . . . .

We must also consider the prejudicial effect of the improper evidence. The evidence from the MCC tapes, admitted here erroneously for their truth and with no true probative value, was just about as prejudicial as one could expect to encounter in a trial. The jury heard that Vasquez’s lawyer — the man who would soon make a closing argument asking them to find reasonable doubt in the government’s case — had told Vasquez that he should plead guilty and had said that if he and his codefendants went to trial, “everyone is going to lose.” A juror who heard and believed that evidence would surely discount anything she heard from that lawyer. In terms of prejudice, these harpoons are comparable to evidence of a defendant’s own withdrawn guilty plea. Such a plea is virtually never admissible because of its powerful force.

We also have strong indications from both the jury and the government itself that the erroneous admission of the MCC tapes was not harmless. Even with the prejudicial and erroneous evidence, the jury still found Vasquez not guilty on the charge of attempted possession with intent to distribute. That verdict is hard to reconcile with the jury’s conviction on the conspiracy charge, and the split verdict certainly has the whiff of a compromise verdict in a close case. Such verdicts are permissible in criminal cases, of course, but when determining whether, beyond a reasonable doubt, a conceded error was harmless, we should not ignore that strong signal that the jury viewed the case as a close one, even with the evidence of flight and the improper rebuttal evidence.

The government also showed how important it believed the improper rebuttal evidence was by its extraordinary efforts to obtain its admission. The trial seemed nearly over when the government filed its emergency Sunday motion for a continuance to enable it to prepare this rebuttal case. The events of the next several days, including especially the government’s emphasis on the improper evidence in its closing argument, showed that the government believed that Mrs. Perez had seriously weakened its case and that the improper rebuttal evidence strengthened its case considerably.

In light of the considerations highlighted by the dissenting judge, I think Vasquez does have a plausible argument that the choice of which harmless error test to use was critical in his case.

On the other hand, it’s not clear to me that Vasquez must necessarily lose under the “overwhelming evidence” test.  It really comes down to how much weight you want to give the flight evidence: does this really demonstrate in an “overwhelming” way that Vasquez was conspiring to deal drugs?  I’m skeptical, although I’d really like to know more about the circumstances of the flight.  Minority men (based on his surname, I’m assuming that Vasquez is Hispanic) have plenty of reason to fear encounters with the police even if they are not doing anything illegal.  Although trying to bull his way through a cordon of police cars was stupid and dangerous on many levels, Vasquez seems to have made a snap decision in a high-stress setting that may not really say much at all about what he was thinking when he drove to the parking lot.

So, the Court may be able to dodge sorting out the harmless error standard yet again.

If it does resolve the ambiguity, which way will it go?  Given the restrictions on finding out what a jury was actually thinking, I’m dubious that the sort of approach exemplified by the dissenting judge in Vasquez can really work on its own terms.  Applying the test will almost always seem a highly speculative exercise.  And it may be one that actually works against defendants in some cases.  For instance, if a jury convicts on all counts with only a very short period of deliberation, that would seem rather compelling evidence that the jury did not find the case at all close and would help to support a finding of harmlessness.  (This would be the flipside of the compromise verdict in Vasquez.)

Our normal approach is to handle jury verdicts in a highly formalistic way: a guilty verdict is a guilty verdict is a guilty verdict, and we rarely recognize the possibility that deliberations may fall short of the rational, conscientious ideal.  (The prejudice test from Strickland is a good example, expressly removing from consideration the possibility of an idiosyncratic jury.)  The “overwhelming evidence” test seems most consistent with this jurisprudential tradition; it avoids any exploration of the “sausage-making” that takes place in the jury room, and treats juries as so uniform and predictable in their operation that an appellate panel can readily stand in for a jury without any need to consider evidence of the inclinations of the actual jury.

Cross posted at Life Sentences.

But down the road and even now in places other than eastern Wisconsin? Cutbacks in federal spending could and sometimes are translating into decisions not to prosecute cases, Santelle said. 

Speaking Tuesday at an “On the Issues” session at Eckstein Hall, Santelle told Mike Gousha, the Law School’s distinguished fellow in law and public policy, that the staff he oversees in offices in Milwaukee and Green Bay, has been reduced from about 80 several years ago to about 70 now. More cuts may lie ahead, he said.

But so far, the reduction has been accomplished without affecting decisions on who to prosecute, Santelle said. That hasn’t been true in offices of US Attorneys in some places around the country, where decisions on matters such as “smaller” drug cases or white collar financial crimes are being shaped by whether the office has adequate resources. He said a $1 million bank fraud in some instances may be below the threshold a prosecutor has set for bringing a case to court, given practical limits on how much can get done.

Santelle said the annual budget of his office is about $8 million – and prosecutions generate about 10 times that each year in penalties, fines, or repayment to the government for improper spending. Santelle said that while politicians understand that the US Attorney’s Office is actually a money-maker for the government, it is hard to expect prosecutors will be spared from across the board cuts.

Santelle’s hour-long session before about 75 people touched on a wide-range of issues, from the high priority put on national security work, even in eastern Wisconsin, where there have, fortunately, been no terrorism episodes, to the positive sides of a legal career in federal service. Santelle has worked for the Justice Department since1985 and has been US Attorney for eastern Wisconsin since 2010.

Santelle was appointed by President Barack Obama, a Democrat, and, in an era of strong political partisanship, he agreed that there have been more matters brought to his office by political activists on either side of the spectrum who think people on the other side have done something wrong. But he had no hesitation in labeling the way prosecutors do their work as “apolitical.” He said he had never been involved in something such as a decision on a prosecution where partisan politics was a factor in how to proceed.

He said, though, that changes in the presidency can have an effect on priorities of the Justice Department, such as how much attention is given to enforcement of environmental regulations. 

Santelle said that a tighter supply of cocaine was driving up prices on the street. For prosecutors, that means more crimes being committed where the drugs involved are pills or other controlled substances. Gousha asked him his thoughts on public opinion polls that show wide support for decriminalizing marijuana use. Santelle said he should be counted on the side of those who oppose that. Marijuana is, in his view, not just a recreational drug. He said marijuana that is being sold today is often far more potent than what was available a generation ago and has more serious effects on users.

Overall, Santelle said, the level of cooperation among law enforcement officials has improved significantly from the past, when different federal agencies kept information from each other and there was limited cooperation between federal and local prosecutors or officers. He said there is generally good communication between law enforcement representatives working in the Milwaukee area, and he talks frequently to people such as Milwaukee County District Attorney John Chisholm. “You benefit tremendously from the fact that law enforcement talks to each other,” Santelle said.

The session with Santelle can be viewed by clicking here.

Your honor I am asking that John Taylor [Campbell's court-appointed lawyer] be removed from my case. I am requesting that you appoint another lawyer to complete the process. If not I would like to proceed pro se.

As my Criminal Procedure students have heard me discuss at length, defendants do indeed have a Sixth Amendment right to represent themselves.  Yet, Campbell’s request was not satisfied: Taylor continued to serve as his lawyer through the time of his trial and conviction.  Campbell then raised the issue on appeal, but the Seventh Circuit nonetheless affirmed his conviction earlier this week (United States v. Campbell (No. 10-3002)).  The court held, in effect, that Campbell should have renewed his request to go it alone, rather than sitting quietly throughout the trial as his lawyer continued to represent him.

Critical to the court’s reasoning was the disfavored status of self-representation:

Because the assistance of counsel is a critical component of an effective defense, courts will indulge every reasonable presumption against the waiver of counsel.  United States v. Miles, 572 F.3d 832, 836-37 (10th Cir. 2009); Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir. 2000). Any waiver of that right to counsel must be unequivocal.  Oakey, 853 F.2d at 553; Miles, 572 F.3d at 836.  (8)

Even with that standard in mind, however, the Seventh Circuit was critical of the trial judge’s failure to conduct a more thorough inquiry into Campbell’s wishes:

[Campbell's] initial request in the March 19 letter was unequivocal though conditional. He requested that Taylor be removed from his case, and requested the appointment of another lawyer. He then stated that if another lawyer would not be appointed, he would like to proceed pro se. That is sufficient to at least raise the issue of self-representation. At that point, the district court should have engaged in a colloquy to address that request. See United States v. Todd, 424 F.3d 525, 531 (7th Cir. 2005). The questioning that did occur regarding the matter was insufficient to elicit the relevant information. The only question regarding whether Campbell indeed desired to proceed without the assistance of counsel was a leading question asked by the judge in the context of a hearing regarding a motion to continue the case. In determining whether Campbell needed additional time to review evidence provided by the government, the court interrupted the defendant as he explained his need for time and queried “Well, you’re not going to try the case yourself are you?” Campbell responded in the negative to that leading question, and continued with his explanation.  A leading question such as that one—raised in the context of an unrelated issue— is an inherently unreliable indicator of Campbell’s true state of mind. If that is all that we had before us, Campbell would have a strong argument that he was denied his Sixth Amendment right to represent himself.  (9-10)

Despite the trial judge’s questionable response to Campbell’s request, Campbell’s subsequent failure to renew the request doomed his Sixth Amendment claim on appeal:

As was mentioned, Campbell responded to the court’s question at the hearing by indicating that he did not intend to represent himself. Although the context of the question would cause us to question the validity of the response, at a minimum it casts some doubt as to whether Campbell sought to waive counsel. In a discussion with Campbell’s counsel at the close of the hearing, the court made it clear that it interpreted Campbell’s response as indicating that he did not want to represent himself. Although present during that discussion, Campbell said nothing to rebut that characterization. In fact, Campbell never raised the matter again. The initial answer, followed by the silence and the subsequent acceptance of representation throughout the trial, indicate that Campbell in fact desired to retain counsel despite his earlier misgivings about Taylor. There is no unequivocal waiver of the right to counsel or unequivocal demand to proceed pro se, and therefore no Sixth Amendment violation of the right to self-representation.  (11)

The Seventh Circuit’s willingness to find a waiver of the right to self-representation through Campbell’s silence highlights how devalued the right is.  The court would not find a valid waiver of other procedural rights (such as the Sixth Amendment right to a jury trial) on the basis of silence.  I don’t think this sort of second-class treatment is what the Supreme Court had in mind when it recognized the right to self-representation in Faretta v. California, 422 U.S. 806 (1975).  On the other hand, Campbell seems quite consistent with the Supreme Court’s recent retreat from Faretta in Indiana v. Edwards, 554 U.S. 164 (2008).  It appears that the views of the Faretta dissenters are winning out in the long run, including Justice Blackmun’s memorable parting shot:

If there is any truth to the old proverb that “[o]ne who is his own lawyer has a fool for a client,” the Court by its opinion today now bestows a constitutional right on one to make a fool of himself.

Cross posted at Life Sentences.

The question has particular importance in fentanyl cases, as illustrated by the Seventh Circuit’s recent decision in United States v. Alvarado-Tizoc (No. 10-1613). In sentencing the wholesaler-defendants, the district court chose to attribute to them the full retail quantities, which were 11 to 16 times greater than the wholesale quantities.

This was improper, the Seventh Circuit held.  

The district court had relied on the relevant conduction provision of the guidelines, which makes defendants responsible for the reasonably foreseeable acts of others in furtherance of a “jointly undertaken criminal activity.” However, drawing on established principles of conspiracy law, the Seventh Circuit held that wholesalers and retailers do not necessarily engage in a “jointly undertaken criminal activity.” In general, a buyer-seller relationship does not establish a conspiracy – a point my Criminal Law students will immediately recognize (I hope) – and the same principle applies to the “jointly undertaken criminal activity” guideline. Moreover, the record in Alvarado-Tizoc did not indicate anything special in the relationship between wholesaler-defendants and their buyers so as to warrant a finding that they were jointly engaged in the retail sale of fentanyl.

The courts have not always been clear or consistent in their description of the relationship between the vicarious liability doctrine for coconspirators and the relevant conduct provision of the sentencing guidelines. For that reason, the unusually lucid treatment of the topic in Alvarado-Tizoc (penned by Judge Posner) warrants quoting at length:

The only vulnerable point in the sentencing of two of these defendants . . . was the judge’s finding that the jointly undertaken criminal activity included the retail sale of the fentanyl. There was insufficient evidence that the retailers to whom the defendants sold heroin and fentanyl were, so far as their relation to the defendants was concerned, anything more than buyers. The government points out that the defendants “specifically sought out, and received, information about [the retailers’] heroin business . . . and thus purposefully kept apprised of their operation. For instance, they asked specific questions about how much money [one of the retailers] made from the heroin he obtained from them” and informed them that “the ‘new heroin’ [which was actually fentanyl] could be diluted even further.” All this just shows a wholesaler’s natural motivation to gauge demand for his product and if possible increase that demand and so be able to raise his price. The government also notes that the defendants were “exclusive supplier[s]” of the retailers and therefore had a “vested interest in the success and profitability” of the operation. But exclusive dealing is common and every wholesaler has a vested interest in the success of his retailers. And finally the fact that the buyers diluted the fentanyl they received (and that this was foreseeable to the defendants) no more proved a conspiracy than the fact that a seller of chocolate syrup to a soda fountain knows that the syrup will be mixed with milk or soda to make chocolate milk shakes or chocolate sodas rather than being sold in its original, undiluted form makes the seller a conspirator in the retail sale of adulterated chocolate drinks.

A seller is not a party to a conspiracy with a mere buyer from him. E.g., United States v. Vallar, 635 F.3d 271, 286-87 (7th Cir. 2011); United States v. Colon, 549 F.3d 565, 567-71 (7th Cir. 2008). And while the applicable Sentencing Guideline as we know uses the term “jointly undertaken activity” rather than “conspiracy,” and indeed provides that the jointly undertaken activity need not be “charged as a conspiracy,” the case law generally treats the terms “jointly undertaken activity” and “conspiracy” as interchangeable.  See, e.g., Gray-Bey v. United States, 156 F.3d 733, 740-42 (7th Cir. 1998); United States v. McDuffy, 90 F.3d 233, 235-36 (7th Cir. 1996). The concept of conspiracy is frequently employed in criminal cases without a conspiracy actually being charged, as when proof of a conspiracy is used to render a statement by a coconspirator admissible against the defendant; and so it is with the Guidelines’ equivalent, a “jointly undertaken activity.”

Some cases point out that “jointly undertaken activity” should not be equated to “conspiracy” because a defendant could have joined a conspiracy without having joined in or agreed to all the activities undertaken by it. United States v. Soto-Piedra, supra, 525 F.3d at 531-32, and cases cited there; U.S.S.G. § 1B1.3 Application Note 2. But there is no actual conflict; the cases we cited earlier (Gray-Bey andMcDuffy) impose a sentencing enhancement on a conspirator for a jointly undertaken activity only if the activity was reasonably foreseeable to him, for foreseeing or being charged with foreseeing an activity makes him a joint participant with the other conspirators. United States v. Hernandez-Santiago, 92 F.3d 97, 100 (2d Cir. 1996). But this qualification on equating conspiracy to jointly undertaken activity cannot help the government; if there was no conspiracy between the defendants and the retailers, a fortiori the former were not engaged in a jointly undertaken activity with the latter.  (5-8)

But Posner also had a bigger and more challenging point to make about sentencing in cases involving fentanyl and other highly potent drugs.  As Posner sees it, since the guidelines’ drug equivalency table already takes into account differences in drug potency, there is potentially a form of double counting whenever a defendant is held responsible for the full weight of the diluted form of a drug:

But a point of more general significance for cases involving fentanyl and other superstrong narcotics is that attributing the amount of the diluted retail product to the seller (whether the seller is a retailer, or a wholesaler conspiring with a retailer) in computing the Guidelines sentence involves double counting. The quantity of the diluted retail product, if attributed to a wholesaler defendant, will already account, in part anyway, for the fact that fentanyl is more potent than heroin; if the same weight of fentanyl and heroin bought by a retailer makes 50 retail doses of fentanyl versus 5 of heroin, the seller of fentanyl will be “credited” with 10 times the quantity as the seller of heroin. To multiply 10 by 2.5 is to double count— more precisely to 2.5-count. And double or other multiple counting—at least when the judge is unconscious of doing it—is improper . . . .

Thus, irrespective of the fact that the quantities sold by the retailers could not be attributed to the defendants on the theory that they were conspiring with the retailers (rather than merely supplying them), the fact that by selling fentanyl instead of heroin the defendants were responsible for a larger number of doses sold to the ultimate consumers was a basis for a higher sentence—but a basis already partly reflected in the drug equivalency tables in the Guidelines.  (8-9)

In light of dilution-based difficulties with the weight-based sentencing guidelines, Posner invited district judges to use their post-Booker discretion to use a more sensible dose-based approach: sentences should not vary based on weight alone, but also take into account potency and purity.  The real question to answer in determining the relative gravity of a drug trafficking offense is not the weight sold, but the number of doses sold.  (10)  Posner observed:

Adjusting for potency makes more sense than adjusting for weight. Emphasis on the weight of a defendant’s drugs (in this case the weight of the dilute drugs sold by customers of defendants), whether or not they are diluted, has the perverse effect of giving drug dealers an incentive to possess and sell drugs of high purity or potency and makes the length of sentences depend perversely on the weight of the inactive ingredients in the drugs. Jonathan P. Caulkins et al., “Mandatory Minimum Drug Sentencee: Throwing Away the Key or the Taxpayers’ Money?” 22 (RAND Corp. Drug Policy Research Center 1997).  (11)

Cross posted at Life Sentences.

I’m hard pressed to see a good justification for this prosecution.

It is just barely possible that Lara may actually be guilty of the crime charged (although, as discussed below, the Seventh Circuit has some pretty serious doubts as to even that), but his culpability is at most quite marginal — especially in relation to the sentencing exposure he faces as a federal drug trafficking defendant. Does this prosecution constitute wise stewardship of limited criminal-justice resources? Does it seem likely to inspire respect for the law and the legal system?

Even apart from the questions it raises about prosecutorial discretion, the Seventh Circuit’s decision overturning Lara’s conviction, United States v. Pillado (No. 10-1081), would make a great teaching case in Criminal Law. The court’s analysis focused on two questions: (1) whether Lara was entitled to a jury instruction on the lesser included offense of simple possession, and (2) whether Lara was entitled to an instruction on entrapment.

On the lesser included offense, the government’s position was that the large quantity of marijuana involved necessarily ruled out the possibility that Lara possessed for personal use. This may be so, but the Seventh Circuit correctly observed that personal use is not the only rational basis for a simple possession charge:

The district court concluded that “given the large quantity of marijuana in the truck, no reasonable jury could infer that the defendants possessed the marijuana for anything other than to distribute.” The court also observed that Lara’s failure to say that he possessed the marijuana for personal use meant that the only plausible alternative was distribution. We cannot agree. This line of reasoning, which the government pursues on appeal, presumes that a person can do only one of two things with marijuana in her possession: consume it or sell it. Of course it is preposterous to think that anyone could personally use a ton of marijuana, and Lara makes no such argument; to the contrary, he says that he is not a drug user. We thus agree with the district court that the personal use option is off the table. But the record in Lara’s case plainly suggests another alternative: abandonment. Lara unloaded the truck following persistent requests from government agents to get the cargo out of the truck, reinforced by a government-induced appeal from his landlord to comply. After unloading the marijuana, Lara walked away empty-handed. A jury could have found that he was indifferent to what happened next: it could have stayed there for days, it could have been rained on, it could have been stolen, or the police could have collected it. (10-11)

The court’s analysis thus does a nice job of reminding us that “possession with intent to distribute” is not just “possession of a large quantity,” but is a specific intent crime as to which the defendant’s purpose is crucial. Given the government’s failure to rule out abandonment as a purpose, Lara was entitled to his lesser included instruction.

As to entrapment, here’s how the court summarized the basic law:

The defense has two elements: government inducement of the crime and a lack of predisposition on the part of the defendant. . . . In order to obtain an entrapment instruction, a defendant must proffer evidence on both elements. See United States v. Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Once a defendant meets this threshold, the burden shifts to the government to prove that the defendant was not entrapped, meaning “the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Jacobson, 500 U.S. at 549. (14)

In rejecting Lara’s request for an entrapment instruction, it seems that the district court conflated entrapment with duress:

The court was persuaded by the government’s argument that because the defendants failed to present evidence of “extraordinary inducement” by government agents, they were not entitled to an entrapment instruction. The court reasoned that Lara’s concessions that Agent Warran had not threatened or made promises to him to induce his participation defeated his request for the instruction. . . . As the court saw things, because Lara “was not forced to unload” the marijuana and he “could have walked away,” no reasonable jury could have inferred that Lara was entrapped. (15)

After rejecting the proposition that coercion is necessary for entrapment (16), the Seventh Circuit took up the question of whether Lara was required to present evidence of ”extraordinary inducement,” as the district court had indicated. Here, the Seventh Circuit helpfully clarified the entrapment analysis, putting the emphasis squarely on the predisposition prong:

We recognize that where there is insufficient evidence of inducement—either because there is no such evidence at all, or because the government did nothing more than offer a standard market deal in a sting—there is no need to consider predisposition. But predisposition will often be the more efficient place to start. If the defendant can point to inducement from a sting, rather than become embroiled in the question whether the government offered only a standard deal or something much better, the court would do better to begin by considering predisposition to commit the crime. As we have noted before, if there is sufficient evidence that a defendant was predisposed to commit the crime, a request for an entrapment instruction may be rejected without considering government inducement. See Santiago-Godinez, 12 F.3d at 728. But the converse is not true: the court may not, as it did here, begin and end the inquiry with government inducement unless it is confident either that the government did nothing at all or that the record demonstrates that the government’s actions simply provided an opportunity for a person who was already ready and willing to commit the offense.

There is an additional reason why it is sensible to begin the inquiry with predisposition. Whether a defendant is predisposed to commit the crime charged informs the nature and level of government inducement that must be identified to warrant an entrapment instruction. As we explained in United States v. Hollingsworth, 27 F.3d at 1200, when a defendant is so “situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so,” then he may be required to point to “extraordinary inducements” to raise the entrapment defense. This rule makes sense, because it deters criminal suspects who have been properly targeted in a sting operation, such as a known gun dealer who distributes to the local street gang, from raising an entrapment defense when apprehended. When there is independent evidence that the person was predisposed to commit the crime charged, there is little risk that an innocent person has been transformed into a criminal by the government’s presentation of an ordinary opportunity to engage in a particular criminal activity.

We use the term “ordinary” in this context to mean something close to what unfolds when a sting operation mirrors the customary execution of the crime charged. For example, federal agents offering to sell illegal guns to our hypothetical arms distributor at the going rate on the streets have simply created an “ordinary” inducement to commit the crime. In contrast, it would be “extraordinary” for the agents to approach the same person with an offer to sell as many guns as the buyer wanted for only one penny per piece. In the latter scenario, the defendant would be entitled to present an entrapment defense to the jury even though he was predisposed to buy guns, because the government employed extraordinary inducements to get him to commit the crime. This is because there is a good chance that the government’s out-of-the-ordinary offer induced the buyer to purchase guns when he may have refrained from crime on that occasion. The entrapment defense resolves that concern by having the fact-finder determine whether the defendant was—based on the evidence presented at trial—entrapped. The upshot is that once a court has concluded that a person was predisposed to commit a crime, a defendant must do more to earn the instruction than assert that the government provided an ordinary opportunity to commit the crime; he must show extraordinary inducement.

Significantly, however, what we have set forth above does not exhaust the possible applications of the entrapment defense. The most important function of the doctrine, the one that the Supreme Court has repeatedly affirmed, is to ensure that people who are not predisposed to commit a crime are not transformed into criminals by the government. . . . Suppose the rule was that every defendant, even one not predisposed to committing the crime charged, was required to make a showing of extraordinary inducement before the defense could be presented to the jury. Government agents would be free to target perfectly law-abiding individuals with inducements that are subtle, persistent, or persuasive—yet not extraordinary—and those individuals would never be able to present the entrapment defense to the jury.

. . . [W]hen the record reveals that a defendant was predisposed to commit the crimes charged, she is not entitled to an entrapment instruction unless she can show that the government provided an opportunity to commit the crime that was out of the ordinary. But if the evidence is thin that a defendant was predisposed to commit a crime, even minor government inducements should entitle the defendant to present her defense to the jury. (17-21)

So, the key to Lara’s case was whether he was predisposed to commit the crime of possession with intent to distribute marijuana. The court noted the following factors are used to determine predisposition:

(1) the defendant’s character or reputation; (2) whether the government initially suggested the criminal activity; (3) whether the defendant engaged in the criminal activity for profit; (4) whether the defendant evidenced a reluctance to commit the offense that was overcome by government persuasion; and (5) the nature of the inducement or persuasion by the government. Hall, 608 F.3d at 343. No single factor controls, but most significant is whether the defendant was reluctant to commit the offense. (22)

In light of Lara’s reluctance to help unload the drugs, as well as other circumstances, the court concluded there was “no hint” in the record of predisposition. (22) Nor did the court have any difficulty in finding the inducement element satisfied.

What next in the case? Lara gets a new trial, at which prosecutors will have the burden of proving predisposition beyond a reasonable doubt. Can they actually succeed in doing so? The Seventh Circuit did not predetermine the issue, but seemed pretty skeptical:

We stop short, however, of holding that Lara is entitled to a judgment of acquittal based on a finding that he was entrapped as a matter of law. The district court approached this case with a mistaken understanding of the relevant legal standards. Because of that error, the record was not developed properly, nor did the district court make its ruling with the proper principles in mind. On remand, the district court should consider the question anew based on the record presented to the second jury. After those proceedings are completed, Lara will naturally have all avenues of appeal available to him. (24-25)

Let’s hope prosecutors take the hint and drop the case.

Cross posted at Life Sentences Blog.

The Seventh Circuit’s position followed that of the Department of Justice.  However, since the initial retroactivity ruling, DOJ has changed its position and now supports partial retroactivity.  Additionally, three other circuits have since rejected the Seventh Circuit’s position.  In light of these developments, one of the Seventh Circuit judges proposed that the initial ruling be reconsidered en banc.  Last week, however, the court announced that the initial ruling would stand.

Remarkably, the court was split 5-5, just barely short of the majority required for rehearing.  One wonders how the late Judge Evans would have voted if he had lived a little while longer.  To be sure, he was part of the panel that initially rejected retroactivity, but both of the other members of the panel switched sides and supported rehearing.  (I can’t recall ever seeing such a switch by multiple panel members in connection with a rehearing decision — it is perhaps an indication of how important DOJ’s switch was in the minds of some of the judges.)

Judge Easterbrook wrote an opinion opposing rehearing, while Judge Williams wrote the principal opinion for rehearing.  United States v. Holcomb (No. 11-1558).  These are both remarkably lucid, cogent opinions.  They effectively present quite different approaches to statutory interpretation and touch on some deep jurisprudential questions.  This would make a very nice teaching case in a statutory interpretation class.

The general rule is against retroactivity for a new statute repealing penalties, although Congress is free to override the general rule.  As to the FSA, the Williams position is basically this: in the statute, Congress made clear that the Sentencing Commission should move as quickly as possible to reduce crack penalties in the sentencing guidelines, with the understanding that the reduced guidelines penalties would apply to everyone sentenced after the new guidelines took effect (Nov. 1, 2010).  Why, Williams asked, would Congress want the new guidelines sentences to be applied as quickly as possible to all new sentencings, but not want the same prompt implementation of the new statutory sentences?  Retroactivity for both types of sentence reductions is the only way to make sense of Congress’s intentions.

Ours is not to question why, responded Easterbrook.  For all we know, what seems an arbitrary distinction between retroactivity for guidelines changes and retroactivity for statutory changes was part of a backroom deal that was necessary to secure the FSA’s passage.  Bringing principled coherence to the law lies beyond the judicial role in interpreting statutes.  Arbitrary though the result may be, nothing in the FSA provides a sufficiently clear signal that Congress wanted retroactivity for the changes in the statutory penalties.

Cross posted at Life Sentences Blog.

As the Chaidez majority observed, the key legal issue is whether Padilla announced a new rule, or merely provided an application of the established principles of ineffective assistance from Strickland v. Washington, 466 U.S. 668 (1984).  Under Teague v. Lane, 489 U.S. 288 (1989), a new rule may not be applied retroactively unless it falls into one of two exceptions that plainly do not encompass the Padilla holding.

Teague and least some of its progeny suggest what seems effectively a strong presumption in favor of a “new rule” finding (and hence against retroactivity).  Here is how the Chaidez majority characterized the law:

A rule is said to be new when it was not “dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301 (emphasis in original). . . . Thus, the Court has explained that Teague“validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Saffle v. Parks, 494 U.S. 484, 488 (1990) (quoting Butler v. McKellar, 494 U.S. 407, 414 (1990)). The pertinent inquiry here is whether Padilla’s outcome was “susceptible to debate among reasonable minds.” Butler, 494 U.S. at 415. Put differently, “our task is to determine whether a . . . court considering [Chaidez’s] claim at the time [her] conviction became final”—pre-Padilla—“would have felt compelled by existing precedent to conclude that [Padilla] was required by the Constitution.” Saffle, 494 U.S. at 488.  (7-8)

With the question framed this way, it is hard to disagree with the majority’s bottom-line conclusion.  The fact that the lower courts had been overwhelming lined up against the  Padilla rule seems almost dispositive of the question — under those circumstances, how can one conclude that this was not an issue over which reasonable jurists might have differed?

Writing in dissent, though, Judge Williams argued that the majority’s “reasonable jurists” test did not accurately reflect the governing law:

[T]his narrow conception of the “dictated” language fromTeague is not the relevant inquiry in the Strickland context. “The often repeated language that Teague endorses ‘reasonable, good-faith interpretations’ by state courts is an explanation of policy, not a statement of law.” Williams v. Taylor, 529 U.S. 362, 383 (2000) (plurality) (quoting Butler, 494 U.S. at 414). As the Court has stated, and as the majority today recognizes, “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims,” id. at 391 (opinion of the Court) (emphasis added). “[W]here the starting point is a rule of general application such as Strickland, “it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent,” Wright v. West, 505 U.S. 277, 308-09 (1992) (Kennedy, J., concurring). (23)

Judge Williams did not see Padilla as one of those “infrequent cases” referred to by Justice Kennedy, but rather as a straightforward application of Strickland:

The analytical mechanism by which the Court applied Strickland does not detract from the fact that Strickland is the general test governing ineffective assistance claims, and that the Padilla Court did no more than recognize that removal is the type of consequence that a defendant needs to be informed of when making the decision of whether to plea.  (24)

The clash between majority and dissent in Chaidez highlights what is so analytically unsatisfactory about the ”new rule” test of Teague.  Because every case presents a fact pattern that is in some respects unique, every holding can in some sense be thought of as articulating a new rule.  But because every case also purports to rely on established legal principles, every case can also be thought of as mere application.  Rather than an either-or question, the “newness” question is really one of degree, and it is not clear how and where to draw a line on the spectrum for purposes of retroactivity.

Given the emerging split in the lower courts, Chaidez might be a good case for Supreme Court review.  And, if the Court does take the case, I hope the Court will use it as an occasion to revisit the wisdom of Teague itself.  I appreciate that Teague was intended to preserve the finality of state judgments by making it harder for state defendants to take advantage of favorable new Supreme Court decisions in federal habeas proceedings.  But, since Teague, Congress has erected a host of new barriers to habeas relief that accomplish the same end, e.g., the one-year statute of limitations for habeas petitions, restrictions on second and successive habeas petitions, and the “clearly established law” requirement of 28 U.S.C. § 2254(d)(1).  Add to that the forfeiture and procedural bar doctrines, which predated Teague, and there is a formidable obstacle course for habeas petitioners to traverse before they are able to take advantage of new Supreme Court decisions.  Teague is an unnecessary overlay that complicates habeas litigation to no good effect.

To make this a little more concrete, Chaidez received the fateful counsel from her lawyer in 2003.  There was nothing that happened between 2003 and 2010, when Padilla was decided, that transformed what might have been good advice into bad advice — her legal representation fell below professional norms in 2003 as much as it would have in 2010.  The question we should be asking is not the unanswerable question of whether Padilla announced a new rule, but the question of whether Chaidez was so prejudiced by the bad counsel she received that she should be given an opportunity to withdraw her guilty plea.

Cross posted at Life Sentences Blog.

That the explanation requirement would apply here is perhaps not a given, since, as the court observed, the district judge has even more discretion in this setting than in an original sentencing.  (4)  The court ruled, however, that the district judge must indeed “say something that enables the appellate court to infer that he considered both [the recommendations of the sentencing guidelines and the statutory sentencing factors].”  (4)

In Robertson, the guidelines recommended a term of 12-18 months following the defendant’s revocation for growing marijuana, but the district judge instead imposed a sentence of 34 months.  Here is the “explanation” for the sentence that the Seventh Circuit found inadequate:

The judge didn’t give a reason for the 34-month term, and made just four, brief remarks that might supply clues to his thinking. The first is that he was “baffled” that the defendant would continue growing marijuana after spending eight years in prison for that crime. The second remark, which followed immediately and merely repeated the first in different words was: “why did you even consider doing this again?” The defendant replied that he had grown marijuana because “he just liked the way the plant looked” and he “liked to smoke it,” whereupon the judge asked him sarcastically whether he had “ever thought about growing gardenias or something legal versus growing marijuana” and added (this was his fourth remark) “you could have grown roses.” Without further explanation the judge stated: “with respect to the revocation, the Court is going to sentence you to 34 months.”  (2-3)

Sending a man to prison for nearly three years surely requires more of an explanation than a couple of sarcastic observations about his horticultural preferences.  The Seventh Circuit properly vacated the sentence and remanded for resentencing.

Cross posted at Life Sentences Blog.

By some apparent coincidence, the Eighth and Tenth Circuits last month both addressed the use of uncounseled tribal-court convictions under 18 U.S.C. § 117(a), which makes domestic assault by a habitual offender a federal crime. Both courts approved use of such convictions to satisfy the criminal-history element of the offense.

The Eighth Circuit decision, which actually drew a dissent, seems the more carefully reasoned.

In United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011), the court reviewed Burgett and its progeny, and recognized a basic tension in the caselaw. Some of the Supreme Court decisions focus on the unreliability of uncounseled convictions as the reason why they must not be used against the defendant in later cases. But other (generally more recent) decisions disregard reliability concerns and instead adopt a more formalistic approach: it is because the earlier conviction was unconstitutional that makes its later use improper. Using the older reliability-based approach, any uncounseled conviction should be off-limits. Using the newer constitutionality-based approach, however, uncounseled tribal-court convictions should be fair game.

As the Eighth Circuit noted, the Supreme Court has never satisfactorily addressed the tension in its cases. It is unclear whether the reliability approach has been entirely replaced by the constitutionality approach, or whether both approaches still have a role to play. The Eighth Circuit did not squarely resolve the tension, but ultimately laid great emphasis on the constitutionality approach: “[W]e believe it is necessary to accord substantial weight to the fact that Cavanaugh’s prior convictions involved no actual constitutional violation.” (603-04)

That “substantial weight” proved dispositive in Cavanaugh itself, but the court did leave open the door for a different outcome in future cases in which there were “other allegations of irregularities or claims of actual innocence surrounding the prior convictions.” (605) This suggests there may still be a backdoor by which defendants may press reliability concerns on a case-by-case basis.

By contrast, in United States v. Shavanaux, 2011 WL 3087015 (10th Cir.), the Tenth Circuit adopted a sweeping bright-line rule: “Use of tribal convictions in a subsequent prosecution cannot violate ‘anew’ the Sixth Amendment because the Sixth Amendment was never violated in the first instance.” (*3) In the same spirit, the court also held that “tribal convictions obtained in compliance with the [Indian Civil Rights Act, which has a limited right to counsel] are necessarily compatible with due process of law,” and hence do not violate the Fifth Amendment. (*5) The court did not give any attention to the reliability concerns that so troubled the Eighth Circuit.

However, the Tenth Circuit did raise another issue: comity. The court found “compelling” the concern that “failing to fully recognize convictions from individual tribal courts also risks imposing inappropriately sweeping standards upon diverse tribal governments, institutions and cultures.” (*4) I think the Eighth Circuit was right to dismiss this concern:

Precluding the use of an uncounseled tribal conviction in federal court would in no manner restrict a tribe’s own use of that conviction: it would simply restrict a federal court’s ability to impose additional punishment at a later date in reliance on that earlier conviction.

643 F.3d at 605.

It is not clear whether either court’s decision can be reconciled with an earlier Ninth Circuit decision, United States v. Ant, 882 F.2d 1389 (9th Cir. 1989). The majority in Cavanaugh tried to distinguish Ant, but the dissenting judge found this effort unpersuasive. Meanwhile, Shavanaux squarely rejected the reasoning in Ant.

Both courts also turned aside Equal Protection challenges to the convictions.

Hat tip to Scott Idleman for drawing these cases to my attention.

Cross posted at Life Sentences Blog.

For instance, in the new Seventh Circuit case, United States v. Mandel (No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.

In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant’s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant’s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court’s efforts to maintain some sort of principled limitations on federal criminal jurisdiction in its interesting decision last term in Fowler v. United States.)

Mandel contested the jurisdictional issues on appeal, but to no avail.

With respect to the cell-phone counts, Mandel’s argument sounded in entrapment, since it was the c.i. who initiated the calls. (Mandel did not challenge his conviction based on the one call he had initiated.) However, the court did not buy Mandel’s assertion that he was not predisposed to use the cell phone:

Whether the defendant is predisposed to commit the charged crime depends on a number of factors, see, e.g., United States v. Orr, 622 F.3d 864, 870 (7th Cir. 2010), cert. denied, 131 S. Ct. 2889 (2011), “the most important of which is ‘whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement.’” King, 627 F.3d at 650 (quoting United States v. Blassingame, 197 F.3d 271, 281 (7th Cir. 1999)).

. . .

Mandel posits that he would not have discussed the murder scheme on a cell phone but for Dwyer taking the initiative in contacting him on his cell, but the evidence suggests otherwise. First, the cell phone was Mandel’s own phone, and although use of such telephones was rare thirty years ago, it is commonplace today—in both law-abiding and criminal domains. Second, Mandel took Dwyer’s calls (and, as the call underlying Count Three demonstrates, returned them) and readily discussed the scheme to kill Antoniou without any apparent reluctance or hesitation. Third, Mandel was not simply a passive recipient of the calls. The call underlying Count Five is one that Mandel himself placed to someone other than Dwyer in order to determine when Antoniou’s visitation with his son would be ending and Antoniou would be returning to his usual abode, so that an appropriate date for the hit could be determined. Mandel’s self-initiated use of his cell phone in that instance puts the lie to the notion that he would not have used the phone in furtherance of the scheme but for Dwyer’s prompting. Finally, to the extent that Dwyer’s calls to Mandel’s cell phone could be characterized as inducement to use that phone to discuss the scheme, they were hardly the sort of extraordinary inducement that is necessary to show entrapment. (13, 15-16)

Mandel relied on an old Second Circuit case, United States v. Archer, 486 F.2d 670 (2d Cir. 1973), which, in the words of the Seventh Circuit, “presupposes that it is improper for a government agent to initiate some action in interstate commerce for the sole purpose of ginning up federal jurisdiction over an offense, even if, as in Archer, the defendant himself willingly reciprocates the agent’s interstate action.” (17) However, the Seventh Circuit noted the lack of subsequent support, even in the Second Circuit, for this broad proposition. Thus, the court indicated that standard entrapment analysis of predisposition should govern claims that the United States has “manufactured jurisdiction.”

With respect to the driving counts, Mandel argued that purely intrastate use of an automobile should not suffice for federal jurisdiction. Under the terms of the statute, however, what is important is not the defendant’s use of something in interstate commerce, but the defendant’s use of something that counts as a “facility of interstate commerce.” That requirement seems satisfied on a per se basis by the use of an automobile: “Automobiles are designed to move people and goods over distances both long and short, and as such they play a crucial role in interstate commerce.” (23)

So, the statute was satisfied.  But, so interpreted and applied, was the statute constitutional? The Seventh Circuit seemed at least a little sympathetic to Mandel’s arguments on this score:

Mandel’s contrary position, that a private automobile must actually be used in interstate commerce in order for it to come within the scope of the commerce power, is not wholly without support. The Eleventh Circuit, in Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1249-50 (11th Cir. 2008), declined to sustain the Graves Amendment, 49 U.S.C. § 30106, which shields car rental and leasing firms from vicarious liability for injuries to persons or property arising from their customers’ use of the lent vehicles, as a valid regulation of instrumentalities of interstate commerce. The court was concerned that if a car’s status as an instrumentality of interstate commerce were by itself sufficient to support the exercise of the commerce power, there would be no limit to the aspects of automobile use that Congress could regulate. “If cars are always instrumentalities of interstate commerce . . . Congress would have plenary power not only over the commercial rental car market, but over many aspects of automobile use” including “such quintessentially state law matters as traffic rules and licensing drivers.” Id. at 1250. (24-25)

Despite some apparent constitutional concern, the Seventh Circuit rejected Mandel’s argument because it was not made below and the issue was not so clear-cut in his favor as to satisfy the requirements for plain error. Defense counsel, take note: if the issue is properly preserved, the Seventh Circuit seems to have left itself some room to rule in a defendant’s favor in a later case.

Cross posted at Life Sentences Blog.

As the Casey Anthony trial/cultural moment/media feeding frenzy reached its denouement last week, two of the biggest trials of 2006 collided in the Seventh Circuit.  Five years ago, Illinois Gov. George Ryan and Enron President Jeffrey Skilling were both convicted of mail fraud.  From there, the two cases took quite different paths.  Ryan’s conviction was affirmed by the Seventh Circuit, and the Supreme Court denied certiorari, but Skilling managed to win a partial reversal in the Supreme Court a year ago, as the Court substantially narrowed the reach of the mail-fraud statute.  Ryan immediately sought another review of his conviction through a 28 U.S.C. § 2255 motion, arguing that the jury in his case was improperly instructed in light of Skilling.  The district court denied relief, and the Seventh Circuit affirmed the decision last Wednesday.  Ryan v. United States (No. 10-3964).

The court did not stake out any new ground legally in Ryan, but the opinion does provide a helpful roadmap of some of the opportunities and pitfalls that face defendants who try to take advantage of a new, narrowing construction of a criminal statute after their direct appeals have been exhausted.

Forfeiture is one of the major pitfalls.  Defendants will not normally anticipate potentially favorable rulings in other cases in the future, which means that arguments based on those rulings will not be made and preserved at trial.  Such forfeiture usually prevents the arguments from being made later in a collateral challenge.  ”With respect to arguments that were not made at trial, the appropriate standard on collateral review for evaluating the content of jury instructions is ’cause and prejudice.’”  (4)

Ryan argued that the “cause” prong was satisfied in his case because the arguments he might have made regarding jury instructions were foreclosed by pre-Skilling Seventh Circuit precedent.  No dice.  ”‘[C]ause’ in the formula ’cause and prejudice’ means some impediment to making an argument.  That the argument seems likely to fail is not ’cause’ for its omission.”  (6)

Having failed to satisfy the cause and prejudice test, one possibility remained for Ryan: “[F]orfeiture is not conclusive when a person is innocent.”  (7)  Thus, the court observed, “If Skilling establishes that Ryan is innocent of mail fraud, then he is entitled to relief notwithstanding his lawyers’ failure to anticipate its holding.”  (8)

But what exactly was Ryan required to prove in order to show his innocence?  ”The right question . . . is whether, applying current legal standards [i.e., post-Skilling law] to the trial record, Ryan is entitled to a judgment of acquittal.  If yes, then the mail fraud convictions must be vacated; if no, then they stand.”  (9)

As instructed, Ryan’s jury could have convicted him based on the receipt of any secret financial benefit.  Today, however, Skilling requires an actual bribery or kickback scheme.  Did the evidence at trial show bribery?  The Seventh Circuit had little difficulty answering the question in the affirmative:

The record shows compellingly — indeed, Ryan admits — that he received substantial payments from private parties during his years as Secretary of State and Governor. . . . [T]here is no doubt that a properly instructed jury could have deemed the payments bribes or kickbacks; the inference that they were verges on the inescapable.  The district court’s opinion canvasses the evidence and demonstrates why a reasonable jury could find that Ryan sold his offices to the high bidders.  (10-11)

Cross posted at Life Sentences Blog.

Here are the highlights of the Commission’s work.

First, the big, good news for crack defendants: The Commission chose to make retroactive the changes to the drug quantity table that were promulgated in April.  The Commission also made retroactive another guidelines amendment that reduces sentences for crack defendants convicted of simple possession.  (To be technically precise, these are Parts A and C of Amendment 750.)  These were the two decisions that I (and many other witnesses) advocated most forcefully for at the June hearing on retroactivity (see my post here), and they will make a big difference for a large number of people.  According to Commission analysis, “approximately 12,000 offenders would be eligible to seek a reduced sentence and the average sentence reduction would be approximately 23 percent.”  To be sure, district judges will have discretion to turn down any sentence-modification requests they receive, but the experience with retroactivity for the 2007 crack amendment indicates that the great majority of eligible defendants will indeed be granted sentence reductions.

Second, the Commission wisely rejected the Administration’s misguided request to disqualify defendants above Criminal History III or with firearms involvement.  (See my post here.)

Third, the Commission chose not to make any part of Part B retroactive.  Part B adds a variety of new aggravating and mitigating specific offense characteristics to the drug trafficking guideline.  Although I think the new “minimal role cap” of Part B could have been implemented retroactively with fairness and relative ease, the remainder of Part B would have presented more significant administrative burdens and fairness objections.

Fourth, the bad news for defendants: while the previous version of the retroactivity guideline (1B1.10) authorized sentence reductions below the new guidelines range if the original sentence had been a departure, the Commission has now indicated that the bottom of the amended guidelines range is a firm floor in all cases except cases involving a downward departure for substantial assistance on the government’s motion.  Apart from a desire to minimize the administrative burdens of retroactivity, I’m not sure the restriction makes much sense.  Imagine a defendant who received a downward departure from the previous crack guidelines, with the sentencing judge concluding that a variety of unusual mitigating circumstances rendered the defendant substantially less culpable than other defendants responsible for a comparable quantity of crack.  Now, with the new drug quantity table made retroactive, typical crack defendants have their sentences reduced to the same level as our super-mitigated defendant.  If the super-mitigated defendant cannot also get a sentence reduction, then the sentences no longer reflect important distinctions in culpability.

Even less do I see merit in making an exception in cases of substantial assistance.  I’ve always had mixed feelings about the highly preferential treatment snitches get under the guidelines, and it’s hard to see why they get yet another benefit here relative to other defendants with more genuinely mitigating circumstances.  Certainly, when we are talking about sentence modifications, there is no added incentive for snitching — it seems highly unlikely that a defendant deciding whether or not to cooperate would take into account the remote possibility that the applicable guidelines range might someday be reduced and that the Commission would then make the change retroactive.

In any event, judges and practitioners should note that the new version applies to all requests for sentence modification decided on or after the effective date of the amendment (Nov. 1, 2011) — including any requests based on the 2007 amendment that are still pending then.  Defendants who are eligible for a reduction based on the 2007 amendment and who received a non-substantial-assistance downward departure at their original sentencing should do everything they can to push their sentence modification requests forward in the next five months.

Finally, in amended application note 1(a) to the retroactivity guideline, the Commission resolved a circuit split on whether there are any types of departures that should be taken into account in calculating a defendant’s new guidelines range (e.g., under 4A1.3 for inadequacy of criminal history category).  The answer is “no.”  This changes the law in the First, Second, and Fourth Circuits.

Cross posted at Life Sentences Blog.

that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congressional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:07-cr-00528-JG-1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a third of her federal sentence.

The Third Circuit, however, ruled that Bond lacked standing to raise her constitutional objections.

In reversing this decision, the Court did not address the merits of the objections.  As a result, it’s hard to say whether there is any sympathy on the Court for the basic claim that the Tenth Amendment may be violated when a federal law criminalizes conduct that is “local in nature.”  Still, it is interesting to put Bond alongside last month’s decision in Fowler, in which the Court cited similar federalism concerns in rejecting an expansive interpretation of a different federal criminal statute.  Perhaps the Court is entering a new phase of heightened concern over the federalization of criminal law.

Cross posted at Life Sentences Blog.

The Court’s decision seems pretty clearly correct as a matter of law (the government actually declined to defend the ruling below), but what about policy — should Congress repeal that language from § 3582(a)?  Added to the law as part of the Sentencing Reform Act of 1984, this language reflected two then-common criticisms of the rehabilitative paradigm in criminal law: (1) the pragmatic objection that prison-based rehabilitative programming did not work, and (2) the ethical objection that defendants should not be sentenced in excess of their just deserts in order to force social services on them.  The first objection has less force today than it did in the 1980’s, as good studies now document at least modest levels of success by some prison-based programs in reducing recidivism.  However, the second objection remains no less important today than it was three decades ago.  On the other hand, desert is hardly a precise concept in practice; there may be enough play in the joints to permit some consideration of rehabilitative programming at sentencing without exceeding desert-based constraints.  If so, § 3582(a) as written (and as interpreted in Tapia) may be more limiting than is necessary.

Cross posted at Life Sentences Blog.

The Supreme Court’s recent decisions in Begay and Chambers substantially narrowed the reach of the Armed Career Criminal Act’s fifteen-year mandatory minimum.  (For background, see this post.  Ironically, shortly after Narvaez was decided, the Court issued its opinion in Sykes v. United States, which seemed to back away from Begay.)  Five years before Begay, Luis Narvaez pled guilty to bank robbery and was sentenced as a career offender under the sentencing guidelines based on his prior convictions for “violent felonies,” including two convictions for failure to return to confinement in violation of Wis. Stat. § 946.42 (3)(a).  Later, in Chambers, the Supreme Court ruled that the Illinois crime of failing to report for confinement did not count as a “violent felony.”  Narvaez then filed a motion under 28 U.S.C. § 2255 to vacate his sentence in light of Chambers.  The district judge held that Chambers did not apply retroactively, but granted Narvaez a certificate of appealability.

On appeal, the government conceded that Begay and Chambers, as decisions of substantive criminal law, applied retroactively, and that, under Chambers, Narvaez’s failure-to-return convictions were not “violent felonies” for purposes of the career offender guideline.  However, the government argued that Narvaez could not take advantage of Chambers because he raised only a statutory issue in his petition — in order to get a certificate of appealability, a § 2255 petitioner must make “a substantial showing of the denial of a constitutional right.”

The Seventh Circuit rejected the government’s theory, finding that, as a result of Chambers, Narvaez’s sentence violated the Due Process Clause:

We have recognized that sentencing errors are generally not cognizable on collateral review. See Scott v. United States, 997 F.2d 340, 342-43 (7th Cir. 1993). Mr. Narvaez’s case, however, does not come within this general rule.  It presents a special and very narrow exception: A post-conviction change in the law has rendered the sentencing court’s decision unlawful. See Welch, 604 F.3d at 412–13 (recognizing that relief is available “where a change in law reduces the defendant’s statutory maximum sentence below the imposed sentence”). In Begay and Chambers, the Supreme Court resolved an open question regarding the kinds of crimes that fall within the meaning of “violent felony” under the ACCA, and, by implication, the career offender guideline. See Templeton, 543 F.3d at 380. The Court’s pronouncements did not simply constitute an “intervening change in the law” in the traditional sense. Rather, the decisions make clear that, at the time of his sentencing, Mr. Narvaez did not qualify as a career offender under the guidelines. An additional five years of incarceration was imposed upon him without any legal justification. Such gratuitous infliction of punishment is a fundamental defect in the court’s judgment that clearly constitutes a complete miscarriage of justice and a violation of due process.  (9-11)

The Seventh Circuit’s reasoning here seem quite broad and might open up collateral relief any time any time the Supreme Court adopts a narrowing construction of a guidelines provision.  There is perhaps a limitation, though, to sentences imposed when the guidelines were mandatory.  Consider this argument by the government and Seventh Circuit’s response:

The Government submits, however, that the sentencing court’s error in this case does not warrant § 2255 relief. Unlike the situation under the ACCA, Mr. Narvaez’s 170- month sentence was actually within the authorized 20-year statutory maximum for his crime. Therefore, the Government reasons that, because Mr. Narvaez would be exposed to the full range of punishment authorized by Congress for his crime at resentencing, and would remain eligible for the identical 170-month sentence under the advisory guidelines, his claim does not present a fundamental defect.

We cannot accept this argument. The fact that Mr. Narvaez’s sentence falls below the applicable statutory-maximum sentence is not alone determinative of whether a miscarriage of justice has occurred. The sentencing court’s misapplication of the then-mandatory § 4B1.1 enhancement in Mr. Narvaez’s case was central to its guidelines calculation. Nothing in the record indicates that the court would have sentenced Mr. Narvaez to five additional years of incarceration had the judge not been under the legal misapprehension, shared by the rest of the circuit, that Mr. Narvaez was a career offender and that the corresponding guidelines required such an enhancement. The application of the career offender provision increased the sentencing range for Mr. Narvaez. Speculation that the district court today might impose the same sentence is not enough to overcome the fact that, at the time of his initial sentencing, Mr. Narvaez was sentenced based upon the equivalent of a nonexistent offense. This error clearly constitutes a miscarriage of justice and a due process violation.  (12-13)

Whether and under what circumstances the retroactivity ruling of Narvaez would apply to defendants sentenced post-Booker thus remains an open question.

Cross posted at Life Sentences Blog.

What many observers took from Begay and Chambers is that a prior conviction does not count under the ACCA unless it satisfies both a subjective test (purposeful, violent, and aggressive) and an objective test (statistically demonstrated likelihood of injury).

But, today, in Sykes v. United States (No. 09-11311), the Court threw this understanding into doubt, suggesting a considerably more expansive interpretation of the residual clause.

In Sykes, the Court held that the Indiana crime of vehicular flight from a law enforcement officer counts as a violent felony.  Here’s the way the Court framed the issue:

The question, then, is whether Indiana’s prohibition on flight from an officer by driving a vehicle—the violation of Indiana law for which Sykes sustained his earlier conviction—falls within the residual clause because, as a categorical matter, it presents a serious potential risk of physical injury to another. The offenses enumerated in §924(e)(2)(B)(ii)—burglary, extortion, arson, and crimes involving use of explosives—provide guidance in making this determination.  (6)

Even in this preliminary statement of the case, the Court notably omitted any reference to the “purposeful, violent, and aggressive” language of Begay, suggesting that the objective test of Chambers did not so much supplement the subjective test as replace it.

In deciding that Sykes’s crime was sufficiently dangerous to count, the Court emphasized what it felt was the inherent character of the crime, rather than relying primarily on data:

Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than burglary. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates. And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture.

Unlike burglaries, vehicle flights from an officer by definitional necessity occur when police are present, are flights in defiance of their instructions, and are effected with a vehicle that can be used in a way to cause serious potential risk of physical injury to another.  (7-8)

Absent here is any sense that the government must prove dangerousness in a rigorous, empirical fashion, as was suggested byChambers and clearly endorsed by Justice Scalia in his concurring opinion in Begay.

Although the government did, in fact, provide some decent statistical evidence in Sykes, the Court seemed to treat this evidence as secondary to “common sense”:

Although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony. See Chambers, 555 U. S., at 129 (explaining that statistical evidence sometimes “helps provide a conclusive . . . answer” concerning the risks that crimes present).  (8)

So what of the purposeful, violent, and aggressive test?  As I discussed in this post, the “aggressive” component seemed to be an especially big sticking point for some of the justices at oral argument.  But those concerns are simply nowhere to be seen in the majority opinion.  Rather, the Court — in a not very clear fashion — seemed to want to limit or modify the Begay test:

Sykes argues that, regardless of risk level, typical vehicle flights do not involve the kinds of dangers that the Armed Career Criminal Act’s (ACCA) residual clause demands. In his view this Court’s decisions in Begay and Chambers require ACCA predicates to be purposeful, violent, and aggressive in ways that vehicle flight is not. Sykes, in taking this position, overreads the opinions of this Court.

ACCA limits the residual clause to crimes “typically committed by those whom one normally labels ‘armed career criminals,’” that is, crimes that “show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Begay, 553 U. S., at 146. In general, levels of risk divide crimes that qualify from those that do not. See, e.g., James, 550 U. S. 192 (finding attempted burglary risky enough to qualify). Chambers is no exception. 555 U. S., at ___–___ (slip op., at 5–6) (explaining that failure to report does not qualify because the typical offender is not “significantly more likely than others to attack, or physically to resist, an apprehender”).

The sole decision of this Court concerning the reach of ACCA’s residual clause in which risk was not the dispositive factor is Begay, which held that driving under the influence (DUI) is not an ACCA predicate. There, the Court stated that DUI is not purposeful, violent, and aggressive. 553 U. S., at 145–148. But the Court also gave a more specific reason for its holding. “[T]he conduct for which the drunk driver is convicted (driving under the influence) need not be purposeful or deliberate,” id., at 145 (analogizing DUI to strict-liability, negligence, and recklessness crimes). By contrast, the Indiana statute at issue here has a stringent mens rea requirement. Violators must act “knowingly or intentionally.” Ind. Code §35–44– 3–3(a); see Woodward, 770 N. E. 2d, at 901 (construing the statute to require “a knowing attempt to escape law enforcement” (internal quotation marks omitted)).

The phrase “purposeful, violent, and aggressive” has no precise textual link to the residual clause, which requires that an ACCA predicate “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). The Begay phrase is an addition to the statutory text. In many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall within the former formulation and those that present serious potential risks of physical injury to others tend to be one and the same. As between the two inquiries, risk levels provide a categorical and manageable standard that suffices to resolve the case before us.

Begay involved a crime akin to strict liability, negligence, and recklessness crimes; and the purposeful, violent, and aggressive formulation was used in that case to explain the result. The felony at issue here is not a strict liability, negligence, or recklessness crime and because it is, for the reasons stated and as a categorical matter, similar in risk to the listed crimes, it is a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii).  (10-11)

So where does this leave us?  ”In general, levels of risk divide crimes that qualify from those that do not,” the Court said.  Objective dangerousness thus seems to be the “general” test to use; other considerations will come into play, at most, in unusual circumstances.  Such circumstances may be present when there is “a crime akin to strict liability, negligence, and recklessness crimes.”  But a felony with a “knowing” mens rea, like Indiana’s vehicular fleeing offense, will not require anything more than objective dangerousness in order to count as an ACCA predicate.

Even as to crimes in the strict liability/negligence/recklessness category, it is not clear that the Court is still committed to the “purposeful, violent, and aggressive” test.  The majority went out of its way to highlight the test’s lack of a “textual link” and to observe that Begay itself was the Court’s “sole decision” to rely on the test.  Moreover, in noting that “[i]n many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk,” the Court may be signaling an interest in collapsing the one test into the other.

Bottom line: it’s hard to say whether we will be seeing the Court use the “purposeful, violent, and aggressive” formulation ever again.  This seems a remarkable place to end up in Sykes, given how much effort was expended in the briefs and oral argument on the question of whether vehicular flight satisfied the test — which everyone, including the government, seemed to assume would apply.

In her dissenting opinion, Justice Kagan noted this issue, but seemed more sanguine about the future of the “purposeful, violent, and aggressive” test:

I understand the majority to retain the “purposeful, violent, and aggressive” test, but to conclude that it is “redundant” in this case. See ante, at 11. Like JUSTICE SCALIA, see ante, at 3 (dissenting opinion), I find this conclusion puzzling. I do not think the majority could mean to limit the test to “strict liability, negligence, and recklessness crimes.” Ante, at 11 (majority opinion). As JUSTICE SCALIA notes, see ante, at 3, that would be to eliminate the test’s focus on “violence” and “aggression.” And it would collide with Chambers v. United States, 555 U. S. 122 (2009)—a decision the majority cites approvingly, see ante, at 8—which applied the test to an intentional crime. See 555 U. S., at 128 (opinion of the Court), 130 (Appendix A to opinion of the Court) (holding that “knowin[g] fail[ure] to report to a penal institution” does not involve “purposeful, violent, or aggressive conduct” (internal quotation marks omitted)). So I assume this test will make a resurgence—that it will be declared non-redundant—the next time the Court considers a crime, whether intentional or not, that involves risk of injury but not aggression or violence.  (Kagan dissent, 2 n.1)

Justice Scalia’s dissent is quite remarkable and deserves much attention for its aggressive use of the “void for vagueness” doctrine.  Here is what he says:

Today’s opinion, which adds to the “closest analog” test (James) the “purposeful, violent, and aggressive” test (Begay), and even the risky-as-the-least-risky test that I had proposed as the exclusive criterion, has not made the statute’s application clear and predictable. And all of them together—or even the risky-as-the-least-risky test alone, I am now convinced—never will. The residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.

That does not violate the Constitution. What does violate the Constitution is approving the enforcement of a sentencing statute that does not “give a person of ordinary intelligence fair notice” of its reach, United States v. Batchelder, 442 U. S. 114, 123 (1979) (internal quotation marks omitted), and that permits, indeed invites, arbitrary enforcement, see Kolender, 461 U. S., at 357. The Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come. The reality is that the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” does not clearly define the crimes that will subject defendants to the greatly increased ACCA penalties. It is not the job of this Court to impose a clarity which the text itself does not honestly contain. And even if that were our job, the further reality is that we have by now demonstrated our inability to accomplish the task.  (Scalia dissent, 7)

His dissent closes with a well-deserved shot across Congress’s bow:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.  (9)

Cross posted at Life Sentences Blog.

Count the Court’s decision today in McNeill v. United States (No. 10-5258) in the latter category.

Here’s the background on McNeill from an earlier post:

McNeill was convicted of being a felon in possession of a firearm. He had two prior convictions for violent felonies. In order to get a third ACCA predicate, the government pointed to McNeill’s drug trafficking convictions in North Carolina in 1992 and 1995. At the time he committed those offenses, North Carolina law specified a maximum sentence of ten years for each. Thus, at first blush, the convictions seem to fall pretty clearly within the ACCA’s definition of “serious drug offense”: “an offense under State law . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.”

But here’s the catch: North Carolina changed its sentencing law, and the crimes for which McNeill was convicted now carry a maximum of only 25 months in prison. If McNeill did today exactly what he did before, the resulting convictions would plainly not count as ACCA predicates.

The change-in-law problem has produced a circuit split, which the Supreme Court will now presumably resolve.

McNeill relies on the use of the present tense in the statutory definition of “serious drug offense”: “ten years or more is prescribed.” He also argues that the ACCA was intended to defer to state legislative judgments regarding offense severity — the North Carolina legislature now apparently believes that McNeill’s crimes were not all that serious, and federal courts applying the ACCA should respect that judgment.

On the other hand — and the Fourth Circuit seemed to think this was crucial in rejecting McNeill’s arguments — the legislature did not make the reduced penalties retroactively applicable to conduct committed before the effective date of the sentencing reform law. Because McNeill’s convictions were based on things he did before the effective date, he would apparently be subject to the same ten-year maximum even if he was just being prosecuted now for what he did in the 1990’s.

The Supreme Court affirmed McNeill’s ACCA sentence, but adopted a slightly different approach than the Fourth Circuit, holding that the sentencing scheme on the date of the earlier conviction governs without regard even to later retroactive changes in the law. 

Justice Thomas, writing for a unanimous Court, treated the question as a simple matter of “plain text”:

The statute requires the court to determine whether a “previous conviction” was for a serious drug offense.  The only way to answer this backward-looking question is to consult the law that applied at the time of the conviction.

This is the “only way” to interpret the statute?  How can it be that easy when both the Second and the Fourth Circuits interpreted it differently?

The Court further reasoned that its “natural reading of ACCA also avoids the absurd results that would follow from consulting current state law to define a previous offense.”  The Court seemed particularly concerned that, under McNeill’s interpretation, a prior conviction might “disappear” for ACCA purposes if a state ”reformulates its criminal statutes in a way that prevents precise translation of the old conviction into the new statutes.” 

But “translation” difficulties — deciding which state-law offenses fit into the federal-law definitions of “violent felony” and “serious drug offense” — are endemic to the ACCA regime, and the case law draws arbitrary distinctions all the time between what counts and what doesn’t count.  Against the backdrop of a poorly conceived and drafted statute and an incoherent body of precedent, “absurdity” hardly seems an appropriate interpretive criterion.

When we decide that a prior conviction counts as an ACCA predicate, we are functionally punishing the defendant a second time in federal court for the earlier state conviction.  In this context, it may be especially appealing to look to the rule of lenity — the principle that statutory ambiguities are resolved in favor of the defendant — as a way to sort out the many uncertainties that arise in applying the ACCA.

Cross posted at Life Sentences Blog.

This was my first time appearing before the Commission, and I was quite impressed by how engaged and well-prepared the Commissioners were.  Through a long morning of testimony by a dozen witnesses, the Commissioners asked many questions, and not one of the questions seemed ill-conceived or poorly articulated.  They had obviously read with real care the written submissions by the witnesses, and they went right at the key problems with each witness’s position.  Testifying was like oral argument before an exceptionally good appellate panel.

The Commissioners seemed pretty clearly inclined to make Parts A and C of the amendment package retroactive.  (Part A reduces sentences for crack offenders based on drug quantity; it’s another two points from the offense level for many current prisoners, as also happened with the  2007 amendment.  Part C ends the treatment of simple possession of crack as a trafficking offense.)  On several occasions, one commissioner or another referred to a “consensus” in favor of retroactivity for A and C.  That view, in some form or another, was favored even by most of the witnesses who were there to represent law-enforcement perspectives.

But it’s not clear how far the retroactivity decision will reach.  Attorney General Holder led off the hearing with something of a surprise from the Department of Justice.  The Department is taking a position in favor of retroactivity, but with two major exclusions: offenders in criminal history categories IV-VI or with a weapons enhancer (guidelines or 924(c)).  This would exclude about half of the offenders who are otherwise eligible for a sentence reduction.

Although the Department obviously carries a lot of weight with the Commission, I don’t think the Commission is going to go for the exclusions.  I was surprised by how uniformly and sharply critical the Commissioners were in their questioning regarding the exclusions.  (There was a nice lesson in the politics of these things.  The AG led off with a prepared statement announcing the Department’s position, then excused himself, leaving an unlucky AUSA behind to field the Commission’s tough questions.)  One major objection is that the excluded offenders already had their criminal history and weapons involvement taken into account in setting their original sentences, and those enhancements will remain in place even if their sentences are now modified.  But if they are denied the opportunity to benefit from the new drug quantity table, their criminal history or weapons involvement will effectively be double-counted against them.

I spoke extemporaneously against the Department’s proposed exclusions in my testimony.  The main reason offered by the Department in favor of the exclusions is that prosecutors do not have the time to assess and litigate dangerousness on a case-by-case basis; therefore, public safety can only be protected if crude proxies for dangerousness are used.  I pointed out, though, that most eligible inmates will not have a release date until at least year three after the amendment, so there’s no real hurry in most cases.  Prosecutors should have plenty of time to triage and then take a closer look at the cases with high criminal history or other indicators of dangerousness.  If judges are pressing too hard, I suggested the Commission could, in consultation with the Department, issue recommendations for court scheduling and case prioritization so as to permit adequate case-by-case assessment.  If this is unsatisfactory, I suggested that the Commission might consider a tiered approach to setting the effective date for retroactivity; for instance, the effective date might be set an extra six months out for offenders in criminal history categories V and VI, giving an opportunity for the system first to clear out a lot of the easy cases.

I also pointed out that brand-new recidivism data (release by the Commission just yesterday afternoon) shows that offenders in CH category IV who were released under the 2007 amendment actually have a lower recidivism rate than offenders in CH category III.  It’s a bit odd, then, to invoke public safety as a reason for making IV the cutoff.

Finally, I argued that vicarious liability makes mere weapons possession an exceptionally poor proxy for dangerousness — you can get a weapons enhancement based merely on the reasonable foreseeability that one of your criminal confederates might possess a gun.  If weapons involvement is used as a basis for exclusion, I suggested that the exclusion focus on brandishing or more aggravated use under 924(c) rather than mere possession.

Even if the Department’s exclusions are rejected, some of the Commissioners seemed surprisingly interested in making the new aggravating specific offense characteristics of Part B retroactive.  This would have the effect of precluding or limiting sentence reductions for crack offenders who are subject to one of the new aggravators, e.g., use of violence, bribery of a law-enforcement officer, use of a minor.  This could make the sentence-modification proceedings considerably more cumbersome, as new fact-finding would be required.  (Parts A and C could be implemented retroactively based on existing paper records from the initial sentnencing.)

I opposed retroactivity for the new SOCs in my written testimony and reiterated the main points in my oral testimony today.  Even if not made formally retroactive, they can still be considered by district judges as a basis for denying or reducing the size of a sentence modification.  The real question for retroactivity is whether district judges will be required to attach a particular weight to the new SOCs, or whether they can be assessed in a more flexible, discretionary way.  Consistent with the general premises of post-Booker federal sentencing, I favor the more discretionary approach.  I think this is especially important in light of the fact that some of the “new” aggravators may have already been used to set a high sentence within a guidelines range; retroactivity thus creates a potential double-counting problem.

Cross posted at Life Sentences.

Here’s what happened.  While preparing to rob a bank, Fowler and some confederates were discovered by a local police officer, whom Fowler then killed.  Fowler was later convicted in federal court under the witness tampering statute, which makes it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense,” 18 U.S.C. § 1512(a)(1)(C).

Fowler’s intended bank robbery counts as a federal offense, and Fowler clearly killed the police officer in order to prevent him from communicating information relating to this offense.  The only question in the case was whether Fowler had the intent to prevent communication to a federal law enforcement officer.  There was no evidence that Fowler actually contemplated that his victim might report the crime to federal authorities, as opposed simply to calling in additional local cops.  But does the statute really require the defendant to be thinking about federal involvement?

The Eleventh Circuit interpreted this element such that the government need only prove “possible or potential” communication to federal authorities.  One problem with this interpretation is that it means it will almost always be a federal offense when a witness is killed to prevent the witness from reporting any crime to any authority.  Given how broad the federal criminal code is and how much it overlaps with state codes, it will usually be possible to say that communication with federal authorities regarding a federal offense was “possible or potential.”  The Eleventh Circuit’s interpretation would thus mark a significant expansion of the already wide reach of federal criminal law.

Against this backdrop, three options were on the table for the Supreme Court: (1) adopt the Eleventh Circuit’s interpretation, (2) require the government to prove that the victim actually would have reported the crime to federal officers, or (3) find a middle ground.  (A fourth possible option, that the government must prove that the defendant intended to prevent the victim from reporting the crime to a person whom the defendant knew to be a federal officer, was apparently ruled out in light of a portion of the statute saying that “no state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government,” 18 U.S.C. § 1512(g)(2).)

An ideologically unusual coalition of six justices (Breyer, Roberts, Kennedy, Thomas, Sotomayor, and Kagan) chose the middle-ground option.  Specifically, they held that the government “must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer” (slip op. at 1).

The various opinions in the case put on display a number of the different considerations the Court takes into account when interpreting criminal statutes.  Thus, for instance, the majority rejected the Eleventh Circuit’s approach on the basis of the surplusage and federalism canons:

Often, when a defendant acts in ways that violate state criminal law, some or all of those acts will violate federal criminal law as well. And where a federal crime is at issue, communication with federal law enforcement officers is almost always a possibility. Thus, to allow the Government to show only a mere possibility that a communication would have been with federal officials is to permit the Government to show little more than the possible commission of a federal offense. (That is to say, the latter showing by itself would almost automatically show the statutorily necessary connection with a federal law enforcement officer.) The “possibility” standard would thereby weaken or eliminate the independent force of the separate statutory requirement that the defendant, in killing the victim, must intend to prevent communication with one who is “a law enforcement officer or judge of the United States.” 18 U. S. C. §1512(a)(1)(C) (emphasis added); see §1515(a)(4) (defining “law enforcement officer” as “an officer or employee of the Federal Government” (emphasis added)). Cf. Duncan v. Walker, 533 U. S. 167, 174 (2001) (normally we must give effect “to every clause and word of a statute” (internal quotation marks omitted)); Ratzlaf v. United States, 510 U. S. 135, 140–141 (1994) (expressing particular reluctance to “treat statutory terms” as “surplusage” “when the words describe an element of a criminal offense”).

Moreover, because of the frequent overlap between state and federal crimes, the use of a standard based on the word “possible” would transform a federally oriented statute into a statute that would deal with crimes, investigations, and witness tampering that, as a practical matter, are purely state in nature. See, e.g., Dept. of Justice, Bureau of Justice Statistics, (FY 2008 Persons arrested and booked, Drug offense: Marijuana), http://bjs.ojp.usdoj.gov/ fjsrc; Dept. of Justice, Federal Bureau of Investigation, 2008 Crime in the United States (Arrests), http:// www2.fbi.gov/ucr/cius2008/arrests/index.html; (Table 29), http://www2.fbi.gov/ucr/cius2008/data/table_29.html (In 2008, 0.7% of arrests for marijuana offenses were made by federal law enforcement officers); see also Jones v. United States, 529 U. S. 848, 858 (2000) (“[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes” (internal quotation marks omitted)).  (9-10)

I think it is particularly interesting to see the Court breathe new life into the Jones principle that federal statutes should not be interpreted so as to “significantly change[] the federal-state balance in the prosecution of crimes.”  If applied consistently and rigorously, the canon could have implications for the interpretation of many federal criminal statutes.

In a concurring opinion, Justice Scalia adopted an even more aggressively narrowing interpretation (option 2 above).  I think his criticisms of the majority opinion are on target, as is his basic approach to interpreting the statute:

In my view, the Government must prove that the defendant intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer. The Court’s vague “reasonable likelihood” standard has no basis in the statutory text and will serve only to confuse judges and juries. . . .

Section 1512(a)(1)(C) of Title 18 makes it a federal crime “to kill another person, with intent to . . . prevent the communication by any person to a law enforcement officer . . . of the United States of information relating to the commission or possible commission of a Federal offense.” Viewed in isolation, this provision contains an ambiguity: Does the mens rea of the statute include a specific intent to prevent communication to a law enforcement officer of the United States; or is it satisfied by the mere intent to prevent communication to a law enforcement officer who happens to be a law enforcement officer of the United States?

Happily, a different statutory provision resolves this ambiguity. It states that “no state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government.” §1512(g)(2). This makes clear that the first possibility is wrong, and the second right. But removing the “federal officer” requirement as an element of the statute’s mens rea does not remove it as an element of the actus reus—that is, as an element of the facts that must be proved for conviction. It must be proved, and proved beyond a reasonable doubt, that the communication intended to be prevented was communication to a federal officer.  (1-2)

Scalia also invokes the rule of lenity and criticizes the majority’s mushy purposivism:

The Court also proclaims that a narrower view “would conflict with the statute’s basic purpose,” which is to prevent witness tampering “at a time when the precise communication and nature of the officer who may receive it are not yet known.” Ante, at 4. It cites no basis for attributing that purpose, and there is none—other than the fact that it supports the Court’s outcome. Another purpose is just as likely . . . . Murder, after all, is a crime, and often a capital crime, under all state laws. There is no reason to ascribe to Congress the “purpose” of transferring murder prosecutions that would ordinarily be brought in state court to federal court based on only a tangential federal interest. Congress was concerned with preserving the integrity and effectiveness of federal prosecutions, and where they are not clearly involved . . . a federal murder prosecution has no proper place. Limited as I have suggested, the federal law would still have ample scope, reaching what were surely the principal cases Congress had in mind—the killing of prospective witnesses in federal trials or in ongoing federal investigations. Here, as would be the case in many situations involving a merely hypothetical link to a federal investigation, Fowler murdered a state police officer. The natural place to have prosecuted him would have been state court.

The Court’s analysis is even less persuasive in light of the rule of lenity, under which we must construe ambiguous criminal statutes in favor of the defendant. Here, the Court adopts a kind of rule of harshness, discarding the most straightforward construction of the text in favor of textually implausible one, based on vague intuitions about the statute’s purpose.  (4)

Rounding out the opinions, Justices Alito and Ginsburg (another strange-bedfellows pairing) dissented, favoring the Eleventh Circuit’s approach.

Cross posted at Life Sentences.

To my mind, Jenkins has it all wrong.  It is especially important that Bonds be convicted.  In the United States, baseball has always been more than just a game.  From the 1870’s onward, major league baseball has been equally entertainment and morality play.  Every season involves the enactment of a public ritual that emphasizes and validates our most important common values.  In a society that celebrates individualism, but only within the constraints of moral norms, baseball celebrated individual accomplishment but always within the context of team play.

The ability of ordinary young men to rise from rural pastures or urban sandlots, through the minor leagues, to the major leagues reiterated the “rags to riches” vision of the United States as a society of unlimited opportunity for people with natural talent and self-discipline.  Even the annual example of once great players having to step aside because of age or injury emphasized that in the larger society each generation had to give way to the next and that current ability, rather than reputation or social status, was what really mattered.  In other words, major league baseball was a kind of perfect social Darwinist fable.

One of the central rules of American society has long been that while aggressiveness and cleverness are to be rewarded, cheating is not an acceptable path to excellence.

Rules of lesser importance, like the ones that govern play on the field, can be bent without undermining the basic message of baseball, but the fundamental rule that only honest effort should be rewarded is not to be violated.  Sneaking a spitball past the umpire or only pretending to touch second base while turning a double play are acceptable actions, but bribing an umpire or an opponent or physically harming an opponent while off the field are not.

Obviously this was always been more myth than reality, and traditional American values have been under attack since the 1960’s.  Nevertheless, the myth of American values remains an important myth and one that plays an important role in insuring social cohesion.

What Barry Bonds did by using prohibited performance enhancing substances and then lying under oath about his actions was to violate not just the integrity of baseball but of core American values as well.  Moreover, violating them in the context of baseball made his actions even worse.  That he, and his steroid-enhanced cohorts, robbed Henry Aaron and Roger Maris of the home run records, the most prized examples of worthy accomplishment, makes his offense especially reprehensible.

Because playing Major League Baseball has been the dream of tens of millions of American males for nearly a century and a half, we have a certain quiet sympathy for those who might violate the merit principle to obtain a goal made unattainable by nature’s denial of physical talents.  The baseball-loving, but physically inept college chemistry instructor of the movie “It Happens Every Spring” comes to mind, as does the middle-aged insurance salesman who sells his soul to the Devil for a chance to play in “Damn Yankees.”  Bonds, however, deserves no such sympathy since his God-given talents made him one of the greatest players of his generation, making his turn to steroids nothing more than the expression of deplorable greed.

To convict Barry Bonds of steroid-related perjury is to reaffirm the continued significance of values that have long been central to the American experience.  Texas v. Johnson notwithstanding, no one has the right to desecrate a national symbol and certainly not for no reason other than personal aggrandizement.

In holding that post-sentencing rehabilitation is a permissible consideration at resentencing, the Court addressed a couple of notable legal questions.  What is perhaps most remarkable about Pepper, however, is not the legal analysis, but the prefatory rhetoric with which it was framed.

In brief, the Court offered what Justice Alito, dissenting in part, characterized as a “paen to that old regime” of highly discretionary, individualized sentencing.  For instance, here is the very first sentence of Justice Sotomayor’s opinion for the majority:

The Court has long recognized that sentencing judges “exercise a wide discretion” in the types of evidence they may consider when imposing sentence and that “[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.”  Williams v. New York, 337 U.S. 241, 246-47 (1949).

The citation to Williams is telling.  The 1949 case is widely seen as emblematic of the Court’s hands-off approach to sentencing issues in the era when criminal law was dominated by the rehabilitative ideal — sentencing judges had to be given almost unlimited discretion at sentencing in order to weigh each defendant’s treatment needs and prospects.

The Pepper Court went on at some length regarding this tradition of discretionary, individualized sentencing before getting to the real issues in the case.  That tradition, of course, predates the Sentencing Reform Act of 1984, which was intended to overturn the Williamsregime.  The Court then overturned the SRA in 2005 in Booker v. United States.  But Booker didn’t offer a clear alternative vision to the SRA, and subsequent cases have hardly embraced the pre-SRA,Williams-era model.

Instead, what seemed to be emerging from the Court’s 2007 trilogy of Rita, Kimbrough, and Gall was a pragmatic vision of sentencing as a shared responsibility of district judges and the Sentencing Commission, with appellate courts recognizing and respecting the particular institutional strengths and weaknesses of both — sometimes emphasizing deference to the district court and sometimes emphasizing deference to the Commission, as appropriate in the circumstances.  This vision is quite close in spirit to the basic sentencing framework embraced by the Court in 1996 in Koon v. United States, which relied on an earlier First Circuit decision (United States v. Rivera) authored by then-Judge Breyer.  Breyer, I suspect, continues to be the Court’s chief proponent for this vision, which also comes through in his opinion for the majority in Rita.  Breyer’s concurring opinion in Pepper once again pushes this vision.

But no one joined Breyer’s opinion in Pepper — that is surprising to me.

Although there are now quite a few Booker progeny cases, I can’t recall any so whole-heartedly embracing district-judge discretion as an affirmative value and treating Sentencing Commission expertise so dismissively.  I wonder if Justice Sotomayor is driving this.  Not only is she the author of Pepper, but she is the only justice who participated in Pepper who was not around for the 2007 trilogy that gave greater weight to Commission expertise.

Is there a fundamental shift taking place in the Court’s thinking about federal sentencing?  I suppose that may depend in part on where Justice Kagan comes out, which remains a mystery — she sat out Pepper.

Onto the legal analysis.  The main question in Pepper was whether 18 U.S.C. § 3742(g)(2) survived Booker.  The Court held that it did not.  The statutory provision prohibits a sentence outside the applicable Guidelines range on resentencing unless it is based on a ground that was “specifically and affirmatively included in the written statement of reasons” provided for the original sentence.  Although the provision says nothing on its face about post-sentencing rehabilitation, the provision effectively precludes a below-Guidelines sentence based on that factor since post-sentencing rehabilitation, by definition, cannot be mentioned by the judge at sentencing.  In Pepper, the Court held that § 3742(g)(2) violated Booker since it has the effect of making the Guidelines mandatory in certain cases.  For instance, if a judge declined to sentence below the Guidelines because the judge erroneously believed that she could not consider a particular mitigating factor, and the judge was then reversed on appeal, the judge would still be required by  § 3742(g)(2) to impose the Guidelines sentence on remand — the advisory Guidelines would then become effectively mandatory by virtue of  § 3742(g)(2).  Although the Pepper Court might have made some distinctions and held the statute constitutional in some circumstances but not others, the Court chose as a matter of administrative convenience to throw out  § 3742(g)(2) entirely.

And good riddance to § 3742(g)(2) — a sorry relic from Congress’s misguided assault on judicial discretion in the 2003 PROTECT Act.

Note, however, that jettisoning § 3742(g)(2) does not necessarily work to the advantage of defendants.  Now, not only may the judge take post-sentencing rehabilitation into account, but also post-sentencing misconduct that potentially warrants a sentence above the Guidelines.  Defendants will be well advised to be on their best behavior while their appeals are pending!

The other big question the Pepper Court had to deal with was how much weight, if any, to give to the Sentencing Commission’s statement in § 5K2.19 of the Guidelines that post-sentencing rehabilitation is not an appropriate ground for a below-Guidelines sentence.  To my mind, the Court was surprisingly dismissive of the Commission’s views:

[A] district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views.  That is particularly true where, as here, the Commission’s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.

“Wholly unconvincing?”  That’s strong language, but probably deserved here.  I imagine the phrase will now be used extensively in briefs by defendants in other cases arguing that other aspects of the Guidelines, such as the child pornography provision, should not be followed by sentencing judges.

In the end, the Court did not provide much clear guidance on when sentencing judges may reject the Commission’s policy choices, but the general tone of the opinion seems to suggest that judges have more freedom in this regard than some appellate courts have been assuming.

So, Pepper will get yet another resentencing, at which his post-sentencing rehabilitation may be considered — the Court gave its permission, but did not require the resentencing judge to attach any particular significance to his impressive record in turning his life around.

Cross posted at Life Sentences Blog.

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.  This, in turn, drives both the racial and geographic disparities in federal death sentences.

The patterns are striking. 

For instance, both federal districts in Missouri display the racial demographics that are of interest to Cohen and Smith (racially diverse urban county surrounded by heavily white suburban counties), and Missouri has returned more federal death sentences than New York, California, and Florida combined (p. 436).  In fact, Cohen and Smith contend that all eight of the districts that have returned more than two federal death sentences exhibit pronounced county-district racial disparities.

By contrast, the three districts in which it has been hardest for the feds to get a death sentence are all majority-minority: District of Columbia, Puerto Rico, and the Southern District of New York.  ”These three federal districts account for 55 of the 460 death-authorized cases but are not responsible for a single death sentence” (465).  Expanding the view to the ten districts in which it has been hardest to get a death sentence, eight have “similar demographic profiles between the federal district and the most populous county.”

Cohen and Smith have uncovered a fascinating pattern, although it surely does not tell the whole story.  What about the Eastern District of Wisconsin, for instance?  While the largest city in the District, Milwaukee, is 37 percent black, the District as a whole is only nine percent black.  This disparity would seem to put the District at considerable risk for the racial dynamics that are of concern to Cohen and Smith, but we have no death sentences.  In fact, the numbers for Milwaukee and the Eastern District of Wisconsin are almost identical to the numbers for Kansas City and the Western District of Missouri, which leads the nation in federal death sentences.

Indeed, while I haven’t cranked the numbers, I strongly suspect there are a great many other death-free districts with similar profiles to these two.  High county-district racial disparities may be necessary for federal death sentences, but I doubt they are sufficient.

Even at that, what Cohen and Smith have uncovered should heighten concerns about the role of racial bias in the administration of the federal death penalty.  For that reason, their reform proposals (especially drawing the venire for federal capital trials from the county of the offense, as federal law mandated prior to the Civil War) deserve attention.

I wonder, too, if the race-geography dynamics they have uncovered are apparent more broadly in federal criminal trials.  If racial bias is a problem in capital trials in some districts, why would it not also be a problem in noncapital trials?  As federal law enforcement has become more oriented to responding to street crime, which is really a local problem, it makes sense for federal juries to be drawn on a more local basis, too.

Cross posted at Life Sentences Blog.