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.
Continue reading “Two Circuits Approve Use of Uncounseled Convictions Against Native Americans”
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.
Continue reading “Trying to Hire a Hit Man? Don’t Answer Your Cell Phone”
Earlier today, in Bond v. United States (No. 09-1227), the Court ruled that a defendant may raise a Tenth-Amendment challenge to the statute under which she was convicted. Bond was convicted of violating 18 U.S.C. § 229, a portion of the federal law implementing a chemical weapons treaty. She argued
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.
In overturning the Third Circuit’s decision that Bond lacked standing to raise her constitutional objections, 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 federal criminal statute. Perhaps the Court is entering a new phase of heightened concern over the federalization of criminal law.
The Supreme Court continues to take new criminal cases at a rapid clip. In Setser v. United States (No. 10-7387), the Court will have an opportunity to resolve a longstanding circuit split on whether a district judge may order a federal sentence to run consecutively to a state sentence that has not yet been imposed. While on probation for a state offense, Setser pled guilty to a federal drug trafficking crime. Anticipating that Setser’s state probation would be revoked and a new prison term imposed, the district judge ordered that Setser’s federal sentence would have to run consecutively to whatever Setser got in state court. The Fifth Circuit affirmed the district judge’s authority to order such a sentence. 607 F.3d 128 (5th Cir. 2010). Now, the Supreme Court will decide between the position of the Fifth Circuit (joined by the Eighth, Tenth, and Eleventh Circuits) and the contrary position of the Second, Fourth, Sixth, Seventh, and Ninth Circuits.
Brown v. Plata grabbed the headlines last week, but the Supreme Court’s decision in Fowler v. United States (No. 10-5443) also merits attention for what it has to say about the federalization of criminal law and the interpretation of criminal statutes. The case also nicely illustrates the way that the Court’s stereotypical ideological divisions (so starkly manifest in Brown) break down when the Court moves out of politically charged areas of constitutional law (e.g., the Fourth and Eighth Amendments) and into the interpretation of federal criminal statutes.
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?
Continue reading “Fowler, Federalization, and Statutory Interpretation”
The Smart on Crime Coalition has issued an ambitious, comprehensive set of reform proposals addressed to Congress and the Obama Administration. The report is here. The Coalition describes itself this way:
The Coalition is comprised of more than 40 organizations and individuals, who participated in developing policy recommendations across 16 broad issue areas.
These organizations and individuals represent the leading voices in criminal justice policy. Coalition members focus their efforts on such diverse and varied areas as combating unnecessary expansions of criminal law, advocating for improvements to investigatory and forensic science standards, ensuring that persons accused of crimes have an opportunity to receive a fair trial, helping persons who have served their sentences successfully reenter their communities, and protecting the rights and dignity of victims of crime.
Nearly all of the specific reform proposals strike me as quite sensible. My main reservation is with the extent to which these proposals contemplate an expansion of the federal role in overseeing national criminal-justice policy. Although the particular activities contemplated for the feds seem benign enough (e.g., increasing federal financial support for state indigent defense, creating and enforcing national standards for the protection of juvenile detainees from sexual victimization, and establishing a national commission on restorative justice in order to support restorative approaches at the state and local level), there is an argument to be made that it is dangerous to create further precedent for expansion of the federal role; as a number of scholars have argued, the politics of crime and punishment seem especially pernicious at the federal level (compare federal and state sentencing laws, for instance). Even a funding program can cause problems in the future if ill-advised conditions are added. This is, of course, how Congress spurred the adoption of state truth-in-sentencing laws in the 1990s — by conditioning grant eligibility on sentencing reform.
Yesterday, the Supreme Court agreed to decide what “federal nexus” must be proven in a murder prosecution under 18 U.S.C. § 1512(a)(1)(C). The statute makes it a federal crime to kill “another person, with intent to . . . prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a federal offense.” The specific question before the Court is whether a defendant may be “convicted of murder under § 1512(a)(1)(C) without proof that information regarding a possible federal crime would have been transferred from the victim to federal law enforcement officers or judges.” Additionally, the case presents interesting questions regarding the interpretation of statutory state-of-mind requirements and the scope of federal criminal jurisdiction.
The decision below was United States v. Fowler, 603 F.3d 702 (11th Cir. 2010). Here’s what happened.
Continue reading “SCOTUS to Address Requirements for Federal Murder Statute”