One of the reasons I consider the New York Times reliable is Linda Greenhouse, who used to be the paper's Supreme Court reporter. Ms. Greenhouse got the facts right on stories about the Court and its cases, and, because of my job, I could determine whether she got the facts right or not. Since she did it seems reasonable to at least presume that her colleagues do the same and that the Times therefore is reliable.
Ms. Greenhouse is now an opinion writer, although as far as I can tell she writes simply an opinion blog on the paper's website which focuses on the Supreme Court. I am surprised by the opinion offered in her latest column, Polar Vision: "the court’s majority is driving it into dangerous territory." It is a persuasive discussion and one which the Court members, along with federal appellate judges throughout the land, would do well to consider.
Operation Turnaround was a corrupt narcotics investigation in the Cleveland area in which falsified evidence and perjured testimony was knowingly presented. Once this malfeasance came to light a number of convictions including those entered pursuant to guilty pleas were vacated. Some of those persons, in turn, filed civil rights and false arrest lawsuits including the plaintiffs in Robertson v. Lucas, Nos 12-3877/3882/3886/3889/3890/3897 (6th Cir, 5/28/14). The plaintiffs claims were dismissed by summary judgment in the district court, which apparently was openly scornful of the claims, a decision was affirmed by the Sixth Circuit.
Senior Circuit Judge Damon Keith, who has been on the Court since 1977, joined the opinion and offered a concurring opinion addressing the uncomfortable question of whether innocent people plead guilty:
Where individuals are being framed by law enforcement officials, as occurred throughout Operation Turnaround, a guilty plea can become an accused individual's only choice, and not the "voluntary and intelligent choice among the alternative courses of action open to the defendant." That Plaintiffs entered guilty pleas before their charges were dismissed does not, alone, signal that they were guilty of any crime – particularly in the context of this deeply compromised investigation.
The pervasiveness of the corruption in this investigation highlights plea-bargaining's "innocence problem." It is a troubling, yet undeniable, fact and reminds trial courts that innocent people plead guilty to crimes for which they are not guilty because they are aware that if they were to lose at trial, their punishments would be more severe than the punishments they would receive upon the entry of a guilty plea. At present, over 96% of federal convictions result from guilty pleas – very few cases ever go to trial. Criminal suspects are often encouraged plead guilty by prosecutors, whose own careers are enhanced by the number of convictions they secure, and by trial courts, which hand down discounted sentences for those who demonstrate so-called acceptance of responsibility by pleading guilty. "Through charge selection and influence over sentencing ranges, prosecutors today possess striking powers to create significant sentencing differentials."
In the context of the fallout of Operation Turnaround, then, the district court's determination that Plaintiffs "received the benefit of their guilty pleas" and yet were trying to "have things both ways" is disturbing. Indeed, such attitudes contribute to the perils of plea-bargaining; an accused person who senses hostility from the trial court may opt to plead guilty even if he or she is innocent, in order to avoid being since the trial by that judge. That the government itself was forced to vacate Plaintiffs' guilty pleas after the extent of law enforcement impropriety was revealed not only undercuts any claim that Plaintiffs have somehow enjoyed an unfair advantage during the course of these proceedings, but also highlights the fallacy that guilty pleas are only entered by guilty people.
I don't have any problem with the outcome of the Supreme Court's case, Wood v. Moss. But I do have a big problem with the Court's sloppy analysis and that will surely inflict injustice in many cases to come. You would think the Court would know better by now.
The case arose from the 2004 Presidential campaign. George W. Bush was campaigning is a small Oregon town, Jacksonville. The plans initially were that Mr. Bush would spend the night in this little town. Groups of protestors and supporters were assigned spots along the President's intended route. But, at the last minute, Mr. Bush decided to stop on the way to eat. This required the Secret Service to reconfigure their security perimeter for the President, which, ultimately, they did by relocating the protestors one block further away than the supporters. This proved to hide the protestors in plain sight; they were never seen by the President and, it would appear, their message went unheard and unseen.
The protestors sued the Secret Service agents claiming that their free speech rights under the First Amendment had been violated, because they had been effectively hidden away, while the President's supporters had not. In their amended complaint, they alleged there existed "a White House manual" stating that "the President's team should 'work with the Secret Service ... to designate a protest area .. preferably not in view of the event site or motorcade route." And this uncomfortable fact sent the Court off the rails.
So, the White House, the head of the executive branch, has as its stated policy -- would that not make it the policy of the executive branch? -- that the Secret Service, which is a department of the executive branch, should work with it to implement this policy. It is hard not to view this as the government policy: let's do what we can using the departments of the executive branch to at least marginalize opposing free speech. That obviously or should obviously raise First Amendment concerns. But the White House directive carries no weight with the Supreme Court, which dutifully recounts that the Secret Service's policy manual prohibits its agents from discriminating between anti-government and pro-government demonstrators."
The Court would have been wiser to have simply ruled that the agents acted reasonably as a matter of law, given the President's sudden change of plans. This limited ruling would apply to few cases, because the President rarely has such a change of plans and when one occurs it would seem even rarer that it would necessitate moving any interested group. But by ruling as it does the Court invites misapplication and utterly erroneous extension and application of its ruling by the lower courts. So the right result in this case will cause the wrong and unjust result in numerous future cases.
Keith Russell worked at a Citicorp call center from 2004 to 2009. In January 2012, Russell filed a class action against Citicorp seeking unpaid wages and overtime relating to time employees "spent logging into and out of their computers at the beginning and end of each work day." Later in 2012 and while the class action was still pending, Russell was rehired by Citicorp and was presented with and signed an arbitration agreement applicable to "all employment-related disputes" between the two.
Armed with this sweeping, expansive agreement applicable to "all employment-related disputes" between it and Russell, Citicorp moved to compel arbitration of the class action. After the district court denied its motion, Citicorp appealed and thus presented the Sixth Circuit with the opportunity to define the meaning of "all," arguing that "all employment-related disputes" in the arbitration agreement included and reached the class action Russell had filed and which was pending before the arbitration agreement existed.
The Sixth Circuit didn't fall for Citicorp's contention that the arbitration agreement applied retroactively. After a brief review and parsing of some of the contract's language and its preamble, the Court dismissed Citicorp's argument as follows:
Citicorp claims: The provision before us -- "This Policy [covers] all employment-related disputes ... which ... arise between [Russell] and Citi" still proclaims with a clear throat that the arbitrator will decide pending and impending cases alike. But milieu limits the reach of general words like "all." See United States v. Palmer, 3 Wheat. 610, 631-32 (1818)(Marshall, C.J.). If the poissonier tells the chef, "I have marinated all the salmon," we know from context that he means all the salmon on the kitchen counter, not all the salmon in the universe. So too here. We know from context -- from the use of "arise," from the preamble and from the parties' probable expectations -- that the contract refers to all future lawsuits, not all lawsuits from the beginning of time to the end.
So, "all" means all employment-related disputes between Russell and Citicorp that may or do arise in the future.
Senior U.S. District Judge Richard Kopf posted an entry on his blog, Hercules and the Umpire, today that advocates for abolition of mandatory minimum sentences in federal drug cases. I've followed Judge Kopf's blog and feel safe in concluding that he is by no means "soft on crime" or any other perjorative description that might be applied along these lines. His blog has helped me understand a judge's perspective better, and has made me a better lawyer, so I appreciate him taking the time to do the work on it. Also, Judge Kopf is currently undergoing a regime of chemotherapy (which he has discussed candidly on the blog too) which accounts for the title of the posting in question: Perhaps It Is the Chemo Fog, But I'm Getting Soft on Crime.
Political party partisan division now defines our Supreme Court reports Adam Liptak, who covers the Supreme Court for the New York Times: "For the first time, the Supreme Court is closely divided along party lines."
The Court has been divided previously, of course, but now is the first time in 225 years that it is divided along party lines, Democrat v. Republican. Not good for us or for the USA.
Federal criminal law often, too often, seems to have been uncoupled from any capacity for explaining to normal, reasonable people. The Sixth Circuit issued a decision recently in the case of United States v. Jackson, No 12-4220 (May 5, 2014), that mostly serves both to undermine the credibility and respect for our federal courts and to assure that another black man remains in jail much longer than anyone including the courts, the Congress, President Obama and his Attorney General would argue is justified on any reasonable grounds. And so it goes.
Michael Jackson pleaded guilty in 2009 to a crack cocaine offense that carried a mandatory minimum sentence of 5 years. Under the law existing at the time the penalties attendant to crack cocaine offenses were 100 times greater than those applicable to powder cocaine, a disparity that was widely condemned as unsupported by any rational policy grounds and racially discriminatory as far back as the mid-1990's. But change comes slow if it comes at all. And so it goes.
In any event, Jackson, because of two prior felony drug convictions, was sentenced as a career offender, which meant that the career offender sentencing guidelines trumped those applicable to a simple crack cocaine offense. Jackson's career offender guidelines range was 188-235 months. Nonetheless, the district judge citing the "crack versus powder cocaine disparity issue" departed downward and sentenced Jackson to 150 months (12 1/2 years).
Jackson appealed his sentence. The Sixth Circuit, in a 2-1 divided panel decision, ruled that Jackson was entitled to another sentencing hearing based on changes to the crack cocaine sentencing guidelines that followed the Fair Sentencing Act of 2010. Judge Gilbert Merritt wrote the opinion and was joined by Judge Eric Clay; Judge Danny Boggs dissented. And so back to the district court went the case.
On remand, the district court determined initially that it had to give Jackson the exact same sentence of 150 months. Then, the district court determined that Jackson's career offender guidelines range would be 151-188 months, if the Fair Sentencing Act of 2010, which changed significantly but not significantly enough, federal crack cocaine sentencing laws applied. After observing that the same mitigating factors were present as at the initial sentencing, the district court sentenced Jackson to 126 months (10 1/2 years). So in essence, the district court took into consideration the changes in the law that had occurred in the interim and reduced Jackson's sentence by a roughly proportional amount.
Time for some context and perspective: Jackson pleaded guilty to and was sentenced on a crack cocaine offense, one that under the law existing at the time carried a minimum sentence of 5 years. After Jackson was sentenced and while his case was on appeal, the Fair Sentencing Act of 2010 was passed. The Fair Sentencing Act changed significantly crack cocaine sentencing: changing the amount necessary for a mandatory minimum sentence of 5 years from 5 to 28 grams. And no one could plausibly deny that the Fair Sentencing Act also recognized and began to ameliorate the racially discriminatory and outrageous effects of the old law. To allow consideration of the Fair Sentencing Act's beneficial effects was the purpose of remanding Jackson's case for resentencing.
But it could not be, because it seems that no justice can be done under federal criminal law and because Jackson's case had been remanded for resentencing under 18 U.S.C. 3582(c), which prohibits a district court on such a remand from imposing a sentence "that is less than the minimum of the amnded guidelines range." And since Jackson's amended guideline range as a career offender (at its lowest end) was 188 months, the Sixth Circuit ruled that the district court had no authority to do anything other than what had already been done: impose exactly the same sentence.
Let's do some analysis and try to figure out where this case comes out. (1) some could say that Jackson, as a career offender, got what he deserved. On the other hand, he pleaded guilty to what appears to be a picayune crack cocaine offense and 12 1/2 years is more than a stiff sentence. It is an example of the sentencing guidelines' policy bias of too often dictating exorbitant and unnecessarily long sentences. Clearly, the district judge considered the sentence way too long; his viewpoint would seem credible, but in the regime of the sentencing guidelines must be ignored largely. In truth, it seems the Sixth Circuit has endorsed an illegally short sentence. (2) The Fair Sentencing Act of 2010 recognized that the federal crack cocaine law was not just bad policy but also unjust and racially discriminatory. And yet the federal appeals courts have ruled without exception that it does not apply retroactively, the Sixth Circuit en banc splitting 10-7 on the question. One can recognize the value of a policy rationale that statutory amendments should not be applied retroactively as a matter of course. But when a driving force for a statutory amendment is recognition that the present law is unjust and racially discriminatory different considerations come into play: it is immoral to allow persons to languish in prison when we've recognized that the law they violated was not just a bad law but an unjust and discriminatory law.
This last point appears to be what Judge Gilbert Merritt, who wrote the initial panel opinion, has in mind in his brief concurring opinion:
I concur in the Court's opinion in this case only becuase I can find no alternative after the refusals of our court and the Supreme Court to alter old crack sentences. For a nonviolent crack cocaine offense, Jackson must serve out his original 12 1/2 year sentence because the Congress, the Department of Justice, the Sentencing Commission and the courts have not seen fit to reduce the widely acknowledged unfair crack cocaine sentences imposed mainlyon black defendants based on a 100-to-1 ratio with powdered cocaine. The district court and the original panel in this case tried to bring a little more enlightenment to sentences imposed for crack before 2011, but to no avail. It looks like no one with authority to correct the injustice in willing to do anything, and thousands of mainly black defendants will remain in prison unjustly for many more years.
