Right to Counsel: One Step Forward, Two Steps Back

As part of its end-of-term flurry, the U.S. Supreme Court issued three notable decisions in the past week on the criminal defendant’s right to effective assistance of counsel. The results were a mixed bag.

First, the step forward: in Lee v. United States, the Court strengthened the defendant’s right to accurate legal advice in relation to plea bargaining. Lee, a South Korean who resided lawfully in the U.S. for more than three decades, faced a federal charge of possession with intent to distribute ecstasy. His attorney advised him that he would likely get a lighter sentence if he pleaded guilty, but Lee was concerned that he would be deported if convicted; deportation, not prison, seems to have been his primary concern. Lee’s lawyer assured him that he would not be deported, so Lee agreed to the guilty plea. However, the lawyer was wrong — Lee faced mandatory deportation as a result of his conviction. When Lee found out, he sought to withdraw his guilty plea on the basis of ineffective assistance of counsel.

The lower courts rejected his motion. For Lee to show a violation of his constitutional right to effective assistance of counsel, he was required to demonstrate both deficient performance by this attorney and prejudice. The lower courts seemed to accept that Lee’s lawyer performed poorly, but held that Lee could show no prejudice since he had no viable defense if the case had gone to trial. In other words, even with better information, Lee would have been convicted and deported anyway.

The Supreme Court reversed, holding that prejudice can be established in some cases based on the lost opportunity to have a trial, without regard to the likely outcome of that trial.  Continue reading “Right to Counsel: One Step Forward, Two Steps Back”

SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance

In an opinion sure to be cited by many federal criminal defendants for years to come, the Supreme Court yesterday overturned the conviction of Carol Anne Bond under the Chemical Weapons Convention Implementation Act.  Although few defendants are prosecuted under this statute, the Court’s decision in Bond is noteworthy for its approach to the interpretation of federal criminal statutes.  The Court adopted a narrow interpretation of the Implementation Act in order to preserve what it called the “usual constitutional balance of federal and state power.”  (12)  This interpretive principle is not a new one, but the Court applied it in an unusually aggressive fashion in Bond.  The opinion is sure to be a favorite of defendants who find themselves prosecuted in federal court for offenses traditionally and routinely handled in state courts.

The underlying facts in Bond were a mix of the mundane and the bizarre.   Continue reading “SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance”

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

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.   Continue reading “Thoughts on the Holder Address: Two Cheers for the New Paradigm”

New US DOJ “Smart on Crime” Policy

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.

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

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.   Continue reading “Bond’s Back: SCOTUS to Reconsider Case on Federalism and Criminal Law”

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

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.  Continue reading “Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different”

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

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

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

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.


Crimmigration and Discretion

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:

Continue reading “Crimmigration and Discretion”

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

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.

Continue reading “Setser v. United States: Bureaucratic Sentencing on Trial, Again”