Court Weighs Revisions in Cocaine-Case Sentences

April 19, 2012

The New York Times on April 17, 2012 released the following:

“By ADAM LIPTAK

WASHINGTON — The Supreme Court heard arguments on Tuesday about an aspect of one of the greatest controversies in American criminal law: the differing treatment of crack and powder cocaine.

“I’ve been a judge for nearly 20 years,” said Justice Sonia Sotomayor, the only member of the current court who has served as a trial judge, “and I don’t know that there’s one law that has created more controversy or more discussion about its racial impact than this one.”

Crack and powder cocaine are two forms of the same drug. But, until recently, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.

In 2010, Congress enacted the Fair Sentencing Act, which reduced the disparity to 18 to 1, at least for people who committed their crimes after the law became effective that Aug. 3. That means many defendants caught with small amounts of crack are no longer subject to mandatory 5- or 10-year prison sentences.

The question on Tuesday was whether the new, lesser punishments also applied to people who committed crimes before the law became effective but were not sentenced until afterward.

The usual rule, set out in an 1871 law, is that new laws do not apply retroactively unless Congress expressly says so. Here Congress said nothing, or at least nothing in so many words. It did instruct the United States Sentencing Commission to act quickly to revise its discretionary sentencing guidelines to reflect the new ratios.

Early in the argument, several justices suggested that the 1871 law might pose an insurmountable barrier to defendants who sold cocaine before August 2010.

Congress must have known, Chief Justice John G. Roberts Jr. said, that the 1871 law “required an express statement if they wanted to apply the change retroactively.”

“So why shouldn’t we hold them to that standard?” he asked.

As the argument went on, the justices’ attention seemed to turn to a question posed by a lawyer for the two men whose cases were before them.

“Why would Congress want district courts to continue to impose sentences that were universally viewed as unfair and racially discriminatory?” the lawyer, Stephen E. Eberhardt, asked.

Justice Anthony M. Kennedy seemed sympathetic to trial judges called on to sentence defendants under the old law. Many such judges have expressed anger over the issue.

“One of the hardest things is sentencing,” Justice Kennedy said. “And you’re saying that a sentencing judge who knows the law has been changed, who knows the law has been criticized, is nevertheless bound and determined that it’s fair for this person to be sentenced to the longer term.”

The Justice Department had initially supported a strict reading of the 1871 law. It revised its position last July, and a lawyer for the federal government, Michael R. Dreeben, argued in support of leniency on Tuesday.

Under the stricter rule, he said, “there will probably be thousands of crack defendants who will be sentenced under the old mandatory minimums that Congress repealed because they were perceived as being racially disparate and unfair.” He added: “I think everyone in Congress understood that these guidelines had undermined the credibility of the criminal justice system for years.”

Since both the government and the defendants agreed that the recent law may be applied retroactively to those sentenced after 2010, the Supreme Court appointed Miguel A. Estrada, a prominent Washington lawyer, to argue the other side.

“I think this is a difficult case for public policy,” he told the justices, “but is not a difficult case for legal doctrine.”

He added that if Congress had truly meant to undo a racially discriminatory policy it would not have stopped with defendants not yet sentenced. Many prisoners are serving long sentences under the old law, he said, and yet neither the defendants nor the government have argued for altering those punishments.

Justice Antonin Scalia picked up on the point. “I would find that extraordinary, that they say it’s racist but we are going to leave in effect all of the sentences that have previously been imposed,” he said.

The cases heard Tuesday were Dorsey v. United States, No. 11-5683, and Hill v. United States, No. 11-5721.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Supreme Court Ruling Allows Strip-Searches for Any Arrest

April 3, 2012

The New York Times on April 2, 2012 released the following:

“By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.

The federal appeals courts had been split on the question, though most of them prohibited strip-searches unless they were based on a reasonable suspicion that contraband was present. The Supreme Court did not say that strip-searches of every new arrestee were required; it ruled, rather, that the Fourth Amendment’s prohibition of unreasonable searches did not forbid them.

Daron Hall, the president of the American Correctional Association and sheriff of Davidson County, Tenn., said the association welcomed the flexibility offered by the decision. The association’s current standards discourage blanket strip-search policies.

Monday’s sharply divided decision came from a court whose ideological differences are under intense scrutiny after last week’s arguments on President Obama’s health care law. The ruling came less than two weeks after a pair of major 5-to-4 decisions on the right to counsel in plea negotiations, though there Justice Kennedy had joined the court’s liberal wing. The majority and dissenting opinions on Monday agreed that the search procedures the decision allowed — close visual inspection by a guard while naked — were more intrusive than being observed while showering, but did not involve bodily contact.

Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

Monday’s decision endorsed a recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, allowing strip-searches of everyone admitted to a jail’s general population. At least seven other appeals courts, on the other hand, had ruled that such searches were proper only if there was a reasonable suspicion that the arrested person had contraband.

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

The case decided Monday, Florence v. County of Burlington, No. 10-945, arose from the arrest of Albert W. Florence in New Jersey in 2005. Mr. Florence was in the passenger seat of his BMW when a state trooper pulled his wife, April, over for speeding. A records search revealed an outstanding warrant for Mr. Florence’s arrest based on an unpaid fine. (The information was wrong; the fine had been paid.)

Mr. Florence was held for a week in jails in Burlington and Essex Counties, and he was strip-searched in each. There is some dispute about the details, but general agreement that he was made to stand naked in front of a guard who required him to move intimate parts of his body. The guards did not touch him.

“Turn around,” Mr. Florence, in an interview last year, recalled being told by jail officials. “Squat and cough. Spread your cheeks.”

“I consider myself a man’s man,” said Mr. Florence, a finance executive for a car dealership. “Six-three. Big guy. It was humiliating. It made me feel less than a man.”

Justice Kennedy said the most relevant precedent was Bell v. Wolfish, which was decided by a 5-to-4 vote in 1979. It allowed strip-searches of people held at the Metropolitan Correctional Center in New York after “contact visits” with outsiders.

As in the Bell case, Justice Kennedy wrote, the “undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband.”

The majority and dissenting opinions drew differing conclusions from the available information about the amount of contraband introduced into jails and how much strip-searches add to pat-downs and metal detectors.

Justice Kennedy said one person arrested for disorderly conduct in Washington State “managed to hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal cavity.” Officials in San Francisco, he added, “have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance and shoplifting.”

Justice Breyer wrote that there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something.

For instance, in a study of 23,000 people admitted to a correctional facility in Orange County, N.Y., using that standard, there was at most one instance of contraband detected that would not otherwise have been found, Judge Breyer wrote.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Breyer’s dissent.

Justice Kennedy said that strict policies deter people entering jails from even trying to smuggle contraband.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. joined all of Justice Kennedy’s majority opinion, and Justice Clarence Thomas joined most of it.

In a concurrence, Chief Justice Roberts, quoting from an earlier decision, said that exceptions to Monday’s ruling were still possible “to ensure that we ‘not embarrass the future.’ ”

Justice Alito wrote that different rules might apply for people arrested but not held with the general population or whose detentions had “not been reviewed by a judicial officer.””

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Supreme Court expands plea bargain rights of criminal defendants

March 22, 2012

The Washington Post on March 21, 2012 released the following:

“By Robert Barnes

A divided Supreme Court ruled for the first time Wednesday that the guarantee of effective legal representation applies to plea bargain agreements, significantly expanding the constitutional rights of defendants as they move through the criminal justice system.

In a pair of cases decided by 5 to 4 votes, the court opened a new avenue for defendants to challenge their sentences on grounds that their attorneys gave them faulty advice, lawyers on both sides of the issue said. The vast majority of criminal cases end with a guilty plea rather than a trial, and the ruling could affect thousands of cases.

“The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities . . . that must be met to render the adequate assistance of counsel that the Sixth Amendment requires,” Justice Anthony M. Kennedy wrote. He was joined by the court’s liberal justices, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

That is the case, the majority said, even if the defendant is unquestionably guilty or has received a fair trial after turning down a plea bargain.

Since more than nine in 10 cases involve a plea rather than trial, the decision will mean greater constitutional scrutiny of the negotiations central to almost every prosecution.

“It seems to me the court has created a new body of constitutional law,” said Connecticut Assistant State’s Attorney Michael J. Proto, who wrote a brief for 27 states urging the court not to extend the constitutional guarantee to plea bargains. “There are a lot of unanswered questions, and it is going to spawn a lot of litigation.”

Margaret Colgate Love, who helped write an American Bar Association brief that advocated for the court’s action, agreed about its impact.

“What makes these cases so important is the Supreme Court’s full-on recognition of the centrality of plea bargaining in the modern criminal justice system and its extension of constitutional discipline to the outcome of the plea process,” she said.

The decisions prompted a scathing rebuttal from Justice Antonin Scalia, delivered from the bench to signal his displeasure.

Scalia called the rulings “absurd” and said the majority had twisted the constitutional right to ensure defendants get a fair trial into one in which they have a chance “to escape a fair trial and get less punishment than they deserve.”

He added in a written dissent, “Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement.”

The court’s conservatives — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — voted with Scalia.

The court was considering two cases in which all parties agreed that the lawyers involved had failed their clients.

In one, Galin Edward Frye’s attorney never told him of plea bargain offers from Missouri prosecutors on charges that he was driving with a revoked license. He later pleaded guilty and was sentenced to three years in prison. Prosecutors had offered Frye a couple of deals, one of which would have required 10 days in jail.

In the other, Anthony Cooper was charged under Michigan law with assault with intent to murder and other charges after shooting Kali Mundy in the buttock, hip and abdomen. She survived the attack.

Prosecutors offered Cooper a deal of 51 to 85 months in prison in exchange for a guilty plea. Cooper turned down that and other offers, allegedly because his attorney told him he could not be found guilty of the attempted murder charge, because he had shot Mundy below the waist.

Cooper went to trial, was convicted and was sentenced to 15 to 30 years in prison.

In the Frye case, the majority held that “when defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”

In Cooper’s case, the court said the “defendant who goes to trial instead of taking a more favorable plea” may be harmed by receiving “either a conviction on more serious counts or the imposition of a more severe sentence.”

The majority rejected the view of Scalia, the states and the Obama administration that any ineffective advice from Cooper’s attorney was remedied by what Scalia called “the gold standard of American justice — a full-dress jury trial before 12 men and women tried and true.”

That view, wrote Kennedy, “ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials.”

“Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas,” he wrote.

Stephanos Bibas, a professor of criminal procedure at the University of Pennsylvania who wrote a law-review article cited in the majority opinion, said the opinion “erected standards” that will be difficult for some challengers to meet.

The majority opinion said defendants would need to show that they would have accepted the plea bargain if not for bad legal advice, that there was a reasonable probability prosecutors would not have withdrawn the offer before trial, and that a judge would have accepted it.

Scalia called this “retrospective crystal-ball gazing posing as legal analysis.”

And Kennedy acknowledged the difficulty in coming up with a remedy for those who proved all that. In cases where the advantage was a lighter sentence, he said, the judge may decide whether the defendant should receive the sentence offered by prosecutors, the one he received at trial “or something in between.”

In cases of a plea that offered a lowered charge, he said, the way to remedy the constitutional injury might be to “require the prosecution to reoffer the plea proposal.”

Alito, a former U.S. attorney, criticized the majority’s “opaque discussion” of the remedies. Requiring prosecutors to reoffer a deal, he said, would be an abuse of discretion in cases where new information about a defendant has come to light after the deal was rejected.

Proto said the decisions will not result in prosecutors offering fewer plea deals. Their resources are too stretched, he said, “to say we’re just not going to offer plea bargains.”

The cases are Missouri v. Frye and Lafler v. Cooper.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Federal Indictment

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Supreme Court: Lawyers must do a good job on plea bargains

March 21, 2012

The Associated Press on March 21, 2012 released the following:

“Court: Lawyers must do good job on plea bargains

By JESSE J. HOLLAND
Associated Press

WASHINGTON (AP) — A divided Supreme Court on Wednesday laid out new standards for criminal plea bargains, saying defense lawyers must do a competent job advising and informing their clients of prosecutors’ offers of less prison time for convictions and guilty pleas.

Justice Antonin Scalia, in a rare move, dissented aloud from the bench, calling the decisions “absurd” and warning courts would be flooded with appeals from criminals now claiming their plea bargain rights were violated, despite the fact that there is no legal right to a plea bargain.

“The court today embraces the sporting chance theory of criminal law, in which the state functions like a conscientious casino operator, giving each player a fair chance to beat the house, that is, serve less time than the law says he deserves. And when a player is excluded from the tables, his constitutional rights have been violated,” Scalia said. “I do not subscribe to that theory. No one should, least of all justices of the Supreme Court.”

The two opinions, both written by Justice Anthony Kennedy, have the potential to affect thousands of criminal cases with the Justice Department reporting that 97 percent of federal convictions and 94 percent of state convictions in 2009 were the result of a guilty plea.

The decisions laid out by Kennedy means that criminal defense lawyers are now required to inform their clients of plea bargain offers, regardless of whether they think the client should accept them, and must give their clients good advice on whether to accept a plea bargain at all stages of prosecution. If they don’t, Kennedy said, they will run afoul of the Sixth Amendment right to assistance of counsel during criminal proceedings.

“The right to counsel is the right to effective assistance of counsel,” Kennedy said.

In the cases before the court, Galin Edward Frye was never told by his lawyer about plea bargain offers from Missouri before he pleaded guilty to driving with a revoked license before his trial. In the second case, Blaine Lafler rejected a plea offer on the advice of his lawyer, and then was convicted of assault with intent to murder and other charges and sentenced after a jury trial in Michigan.

In both cases, Kennedy sent the convictions back down to the lower courts because the actions of the lawyers.

“This court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused,” Kennedy said. “… When the defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”

In the second case, “if a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it,” Kennedy said. “If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.”

Kennedy was joined in both opinions by the court’s liberals, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

In Frye’s case, a lower court will have to decide whether prosecutors would have been required to stick to their offer to Frye, because he was rearrested on the same charge of driving with a revoked license less than a week before his preliminary hearing.

Frye’s August 2007 arrest was his fourth on the same charge, so he was charged with a felony that had a maximum sentence of four years. Missouri prosecutors originally offered Frye two deals, including pleading to a misdemeanor with a sentence recommendation of three months. With no knowledge of that offer, Frye ended up entering a guilty plea and was given three years in prison.

Cooper was arrested after shooting a woman in the buttocks, hip and abdomen in 2003. He was charged with assault with intent to murder and three other charges, but was offered a deal where prosecutors would drop two of the charges and recommend a maximum of 85 months in prison. But Cooper’s lawyer told him to reject the deal, saying incorrectly that the prosecutors couldn’t prove murder because he had shot the woman below the waist. He did, and was sentenced to a maximum of 30 years in prison.

Kennedy said Michigan prosecutors should offer Cooper his plea bargain for a prison term of around seven years again, with a lower court judge ruling on whether to vacate some or all of his convictions, or do nothing about his 15-to-30 year sentence.

That concerned Justice Samuel Alito, a former U.S. attorney in New Jersey.

“In my view, requiring the prosecution to renew an old plea offer would represent an abuse of discretion in at least two circumstances: first, when important new information about a defendant’s culpability comes to light after the offer was rejected, and second, when the rejection of the plea offer results in a substantial expenditure of scarce prosecutorial or judicial resources,” said Alito, who wrote a separate dissent in that case.

Scalia was joined in full or in part in both dissents by Chief Justice John Roberts and Justice Clarence Thomas. Alito joined Scalia’s dissent in the Frye case. Scalia noted that prosecutors were being punished by having their cases go back to court, when it was the defense lawyers who made the errors.

“In today’s cases, the court’s zeal to bring perfection to everything requires the reversal of perfectly valid, eminently just convictions,” Scalia said. “It is not wise; it is not right.”

The cases are Missouri v. Frye, 10-444 and Lafler v. Cooper, 10-209.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.