Archive for the ‘Federalism and Criminal Law’ Category

Thoughts on the Holder Address: Two Cheers for the New Paradigm

Sunday, October 20th, 2013

In August, Attorney General Eric Holder delivered a widely noted address to the American Bar Association that seemed to promise significant changes in federal prosecutorial policies.  I wrote these reactions for the Federal Sentencing Reporter.

Following decades in which the U.S. Department of Justice has consistently advocated for a rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract principles of national uniformity, has willfully disregarded the devastating impact of its charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal criminal justice system, in which prosecutorial charging priorities are more specifically tailored to meet local needs, in which sentencing is more individualized to the offender and prosecutors sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney Offices experiment with new diversion programs as an alternative to conventional case-processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can achieve better public-safety results at a lesser cost than a system in which preserving the integrity of the federal sentencing guidelines is the overriding value.

Through Holder’s address, DOJ offers its most prominent and unequivocal endorsement yet of an emerging new criminal justice paradigm.   (more…)

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New US DOJ “Smart on Crime” Policy

Wednesday, August 14th, 2013

AG Holder’s remarks to the ABA earlier this week, announcing new DOJ initiatives, are here.  The related “Smart on Crime” report is here.  Press coverage of the Holder speech focused on the announcement that federal prosecutors would no longer seek to have “draconian” mandatory minimums imposed on low-level drug offenders, but there are other interesting aspects to the new policy, including expanded compassionate release for federal prisoners and a new focus on reentry and collateral consequences.

It seems to me that just about everything here could have been said, and should have been said, two decades ago by AG Reno.  Still, better late than never . . . .

Ironic that this federal backing away from mandatory minimums occurs the very same week we see a push in Wisconsin for new mandatory minimums at the state level.

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Bond’s Back: SCOTUS to Reconsider Case on Federalism and Criminal Law

Sunday, January 20th, 2013

The recent suicide of Aaron Swartz has provoked a great deal of public discussion of what many consider to be overreaching by federal prosecutors in his case.  In the view of some critics, Swartz’s theft of academic articles from JSTOR would have been more properly handled as a minor property offense in state court.  Instead, Swartz found himself in federal court facing a possible 35 years in prison and a set of charges invoking a variety of obscure federal criminal statutes.

Whatever the merits of the criticisms, they have served to draw public attention to the extraordinary power exercised by federal prosecutors and the uncertain line between what is most appropriately handled in state court and what is most appropriately handled in federal.

Although the Swartz litigation is now presumably over, another case that has provoked similar charges of prosecutorial overreaching is now on its way to the Supreme Court . . . for a second time.   (more…)

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Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different

Friday, September 7th, 2012

In anticipation of the conference here next month on the Wickersham Commission, I’ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system.  One that holds some interesting surprises is the “Progress Report on the Study of the Federal Courts.”  The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.

One thing that strikes me as remarkable is the almost complete absence of trials — the system was dominated then, as now, by guilty pleas.  Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970′s.  In that decade, guilty plea rates hovered between 77% and 82%.  After 1981, the rate climbed steadily, reaching more than 96% of adjudicated cases in 2009.  But this, apparently, is not a new phenomenon.  Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial.  That’s right, only nine trials in three years.  (Eight of these, by the way, took less than one full day to try.)  The guilty plea rate in adjudicated cases was over 98%.

After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%.  (See Ron Wright’s helpful data compilation here.)  So, Connecticut seems not to have been terribly atypical.

The Connecticut data are, in fact, strongly reminiscent of a modern “fast-track” plea-bargaining system.  (more…)

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Does the “Obamacare” Case Do Anything for Federal Criminal Defendants?

Tuesday, July 10th, 2012

I’ll always remember the day the Supreme Court declared the Gun-Free School Zones Act unconstitutional in United States v. Lopez.  It was 1995, and I was still in law school.  Al Gore had not yet invented the Internet, so my fellow students and I were still ignorant of the decision when we went to our afternoon classes.  My professor walked into class, paused a moment for dramatic effect, and then solemnly announced that the Supreme Court had just declared the New Deal unconstitutional.

The Court’s narrow reading of Congress’s Commerce Clause power indeed opened the door for many new challenges to federal statutes, including federal criminal statutes — I remember we had a number of these on the docket during my clerkship year after law school.  But Lopez proved far less radical than many hoped and others feared.

The Lopez “revolution” finally petered out with the Court’s 2005 decision in Gonzales v. Raich, which affirmed Congress’s power to prohibit a seriously ill California woman from using locally grown marijuana under the state’s compassionate use law.  So much for the Rehnquist Court’s great federalism revival.

Might federal defendants benefit more from the Court’s new decision in National Federation of Independent Business v. Sebelius? (more…)

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October Conference to Consider the History, Legacy of America’s First Crime Commission

Thursday, June 21st, 2012

Along with my colleagues Dan Blinka, Dean Strang, and Gordon Hylton, I’ve been organizing a conference at Marquette Law School on the Wickersham Commssion, America’s first national crime commission.  Appointed by President Hoover and including many legal luminaries of the day, the Wickersham Commission produced an extraordinary series of reports in 1931 that examined in great detail the causes of crime and the operation of the American criminal-justice system.  Perhaps best remembered for the critical light it cast on extreme police interrogation tactics, the Commission’s work might also be thought of as the coming-of-age of American criminology, as a progenitor of the contemporary “evidence-based decision making” movement, and as a centerpiece of the first presidential effort to craft a comprehensive federal crime-control policy.

The conference will kick off at 4:30 on October 4 with a keynote address by one of my favorite authors on crime policy, Professor Frank Zimring of Berkeley.  Registration information for the keynote is here.

The conference will continue with a series of panels beginning at 8:30 on October 5.  Speakers will include distinguished historians, law professors, and criminologists.  Additional details and registration information are available here.

 

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Crimmigration and Discretion

Friday, 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:

(more…)

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

Saturday, 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.

(more…)

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Two Circuits Approve Use of Uncounseled Convictions Against Native Americans

Wednesday, August 17th, 2011

In Burgett v. Texas, 389 U.S. 109 (1967), the Supreme Court held that a prior conviction cannot be used to enhance a defendant’s sentence under a recidivism statute if the prior conviction was obtained in violation of the defendant’s constitutional right to counsel.  Native Americans, however, must deal with an apparent loophole in the Burgett rule: the Sixth Amendment right to counsel applies to proceedings in federal and state courts, but not tribal courts.  If an uncounseled prior conviction in tribal court does not violate the Constitution, it may arguably fall outside the Burgett prohibition and be used against the defendant in a later case.

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.

(more…)

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Trying to Hire a Hit Man? Don’t Answer Your Cell Phone

Friday, July 29th, 2011

A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. § 1958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a “facility of interstate commerce” was used. And it takes very little indeed to satisfy the latter element.

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 interest in maintaining some sort of principled limitations on federal criminal jurisdiction in this interesting case from last term.)

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

(more…)

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