Comparing Police Stops of Citizens in New York and Milwaukee, Part II

May 18th, 2012

As I discussed in my previous post, frequent police stops of citizens may ultimately prove counterproductive to crime-fighting objectives.  In this regard, I also suggested that who is targeted and how they are treated may actually matter more than the sheer quantity of stops.  If that’s right, then several aspects of the New York stop data are troubling.

Racial disparities are one concern.  Black and Hispanic males between the ages of 14 and 24 accounted for more than 40% of the stops made by the NYPD in 2011, even though they amount to less than 5% of the city’s population.

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Posted in Empirical Research, Fourth Amendment, Milwaukee Police Department, Racial Disparities | No Comments »

New Issue of FSR Assesses ’96 Reforms of Habeas and Prisoner Rights Litigation

May 17th, 2012

In a single month sixteen years ago, April 1996, Congress adopted sweeping changes to both habeas corpus and prisoner rights litigation through the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act.  A new issue of the Federal Sentencing Reporter (edited by yours truly) now assesses the legacy of the AEDPA and PLRA.  The issue includes much insightful commentary by leading scholars and practitioners.  A list of the authors and article titles appears after the jump.

Although the issue is now out in hard copy, the contents are not yet available through the FSR website.  Stay tuned.  In the meantime, I do have a few extra copies of the issue and would be happy to send them to interested readers of this blog.  You can request a copy by emailing me at michael.ohear@marquette.edu.

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Posted in Eighth Amendment--Applied to Prison Conditions, Federal Post-Conviction Remedies (incl. Habeas), Prison Litigation Reform Act, Prisoner Rights (Not Eighth Amendment) | No Comments »

Comparing Police Stops of Citizens in New York and Milwaukee, Part I

May 15th, 2012

Last week, the New York Civil Liberties Union released a report on police stops in New York City, prompting a New York Times editorial yesterday that was quite critical of the police.  As the Times put it, “The mounting evidence reveals a pattern of abusive policing that warrants the attention of the Justice Department, which should be using its broad authority to investigate these practices.”  The newspaper’s criticisms focused particularly on racial disparities in the NYPD’s stops and related uses of force.

Apparently by coincidence, the Milwaukee Police Department also released data last week on police stops, covering both subject stops (the topic of the NYCLU report) and traffic stops.  The data indicate that the MPD and the NYPD have both significantly increased their numbers of stops in recent years.  Although New York had far more subject stops than Milwaukee in 2011 in absolute terms, Milwaukee is actually in front of the Big Apple on a per capita basis.

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Posted in Empirical Research, Fourth Amendment, Milwaukee Police Department, Racial Disparities | No Comments »

Crimmigration and Discretion

May 11th, 2012

For people like me who do not regularly follow immigration law and who are only dimly aware of the recent emergence of the new field of legal practice and scholarship known as “crimmigration,” David Alan Sklansky has a terrific new article with a wealth of data demonstrating the “vanishing boundary” between criminal law and immigration law, as criminal enforcement of immigration laws has skyrocketed and as deportation has increasingly become a favored tool of law enforcement in dealing with suspected criminals.  In addition to the fascinating data, Sklansky also supplies an insightful new explanation for the rise of crimmigration — one that centers on what he sees as a growing comfort level in the United States with the idea of giving front-line actors wide discretion to select from a range of law-enforcement tools in order to address threats to public safety.  I’d like to add another layer of nuance to Sklansky’s theory of discretion, but, first, here are some of the numbers from the article that I found particularly striking:

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Posted in Crime Data, Criminal Procedure, Empirical Research, Federalism and Criminal Law, Parole, Politics of Crime and Punishment, Prosecutorial Discretion | No Comments »

Seventh Circuit Affirms Money-Laundering, Conspiracy Convictions of Car Dealers for Cash Sales to Drug Traffickers

May 7th, 2012

Amir Hosseini and Hossein Obaei, who operated three Chicago-area automobile dealerships, sold many luxury cars to drug dealers over a ten-year period. Hosseini and Obaei were apparently popular with this market segment because of their willingness to take large cash payments in small bills. Eventually, federal prosecutors caught up with them, and, following a five-week trial, they were convicted by a jury on 97 counts of conspiracy, money laundering, mail fraud, illegal transaction structuring, bank fraud, and aiding and abetting a drug conspiracy. The Seventh Circuit has now affirmed these convictions and the 15- and 20-year sentences that went along with them.

Had it been properly preserved, the most substantial legal issue on appeal would have been the question left open by United States v. Santos, 553 U.S. 507 (2008): whether, in a traditional money-laundering prosecution, the government must prove that the allegedly laundered proceeds are net profits, as opposed to gross receipts, of the underlying crime. (See my blog post about Santos here). However, since the Santos issue was raised for the first time on appeal, the court used plain-error review and found that the defendants could not satisfy the standard given the “unsettled state of the law.” (2)

Hosseini and Obaei also raised an interesting voir dire issue.  Read the rest of this entry »

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Posted in Criminal Procedure, Federal Criminal Law--Substantive, Seventh Circuit | No Comments »

A Plea for 924(c) Reform

May 7th, 2012

In the past year, I’ve enjoyed an extended correspondence with a federal inmate named Adam Bentley Clausen (see website here).  He is working hard to promote public awareness of the problems with 18 U.S.C. § 924(c).  He sent me the following analysis, which I think nicely articulates the case for reform:

Save 4 Billion Taxpayer Dollars by Amending 18 U.S.C. 924(c)

I. Highlights

- I received 213 YEARS for multiple 924(c) “use of a firearm” convictions

- No one was killed nor seriously injured during any of my crimes

- The average male life expectancy is 77 years

- My “life” incarceration will cost taxpayers at least 2 million dollars

- The maximum sentence for my underlying crime(s), Hobbs Act Robbery, was 20 years

- Had I received the 20 year max my incarceration would have cost taxpayers $475,000

-There are approximately 3000 cases similar to mine nationwide each costing taxpayers 2 million dollars, or cumulatively costing 6 BILLION DOLLARS

- A retroactive amendment to statute 924(c) could reduce each “life” sentence down to a more reasonable 20 years (on avg. at resentencing) and thus allow taxpayers to SAVE OVER 4 BILLION DOLLARS

***(Estimated total savings can be compounded once future job earnings and tax contributions of each inmate released after 20 years is considered. Possibly 1 Billion ADDITIONAL Dollars of savings)

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Setser v. United States: Bureaucratic Sentencing on Trial, Again

May 5th, 2012

While he was already on probation for another offense, Monroe Setser was arrested for trafficking in meth.  The arrest led to three separate criminal proceedings: a revocation of Setser’s probation in state court and fresh prosecutions in both state and federal court.  (One wonders why our law-enforcement authorities have nothing better to do with their time than pile on the charges in these sorts of redundant prosecutions.  Oh, to overturn the Supreme Court’s regrettable decision in Bartkus v. Illinois!)  The federal prosecution reached the sentencing stage first, and the district court decided that it should rule on whether the 151-month federal sentence should be served consecutively to or concurrently with the anticipated state sentences.  The court split the difference, determining that the federal sentence would be consecutive to the sentence for the probation violation, but concurrent with the sentence for the fresh state charge.  Then — wouldn’t you know it! — the state court made the federal sentence a logical impossibility by ordering the two state sentences to run concurrently with one another.

On appeal, Setser argued unsuccessfully that the district court lacked authority to make a concurrent/consecutive decision relative to a state sentence that had not yet been imposed.  In Setser’s view, it was up to the Bureau of Prisons to make the call, based on its authority under 18 U.S.C. § 3621(b) to decide whether federal sentences are to be served in a state or federal facility.  The Fifth Circuit rejected this view, and the U.S. Supreme Court affirmed in a 6-3 decision earlier this spring.

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Posted in Federal Sentencing, Federal Sentencing--Process, Federal Sentencing--Reasonableness Review, Federalism and Criminal Law, U.S. Supreme Court | No Comments »

SCOTUS to Decide on Padilla Retroactivity

April 30th, 2012

Earlier today, the Supreme Court granted cert. in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). Chaidez held that the Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), would not be applied retroactively to defendants whose convictions were already final when Padilla came out. In Padilla, the Court held that a lawyer performs below minimal constitutional standards when he or she fails to advise a client of the deportation risks of a guilty plea. Now, the Court itself will have an opportunity to determine whether its decision should have retroactive effect.

The majority and dissenting judges in Chaidez all agreed that the case turned on whether Padilla announced a new rule of criminal procedure, within the meaning of Teague v. Lane, 489 U.S. 288 (1989). With only a couple of execeptions not relevant here, Teague prohibits retroactivity for new rules. So, the question in Chaidez seems to boil down to whetherPadilla announced a new rule or merely applied the basic ineffective assistance test of Strickland v. Washington, 466 U.S. 668 (1984).

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Posted in Defense Counsel--Ineffective Assistance, Federal Post-Conviction Remedies (incl. Habeas), Plea Bargaining, U.S. Supreme Court | No Comments »

SCOTUS: Court of Appeals Cannot Resurrect Waived Statute of Limitations Defense

April 27th, 2012

Earlier this week, in Wood v. Milyard (No. 10-9995), the Supreme Court ruled that a federal court of appeals may not reject a habeas petition on the basis of a statute of limitations defense that was previously waived by the state.  Wood, a Colorado lifer convicted in 1987, had filed his federal habeas petition in 2008.  Under the Antiterrorism and Effective Death Penalty Act, state prisoners have only one year after their convictions become final in which to seek federal habeas relief.  In Wood’s case, however, there was some uncertainty as to whether and for how long the SOL had been tolled by state post-conviction proceedings.  When specifically invited by the district court to address the SOL issue, the state replied that it would “not challenge, but [is] not conceding, the timeliness of Wood’s [federal] habeas petition.”  The district court then denied Wood’s petition on other grounds.

On appeal, the Tenth Circuit raised the timeliness problem sua sponte and ruled against Wood on that basis, without addressing the merits of his petition.

The Supreme Court reversed, holding that the state’s deliberate decision that it would “not challenge” Wood’s timeliness constituted a waiver of the defense, and that the Tenth Circuit abused its discretion by resurrecting the defense over the state’s waiver.

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Posted in Federal Post-Conviction Remedies (incl. Habeas), U.S. Supreme Court | No Comments »

Check Out These New Blogs

April 24th, 2012

U.S. Court of Appeals for the Seventh Circuit Updates tracks new decisions by the Seventh Circuit in criminal cases.  The authors are four up-and-coming Wisconsin-based criminal defense lawyers and yours truly.  I’ll cross-post most or all of my contributions here.

Cybercrime Review, authored by two 3L law students with strong technology backgrounds, explores “new technology, recent legal developments, and interesting arguments at the intersection of computers and the law.”

Both blogs are off to a strong start.  (I think I can say that without being too self-serving, since I only have one post up so far at Seventh Circuit Updates.)

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