Although the details remain unclear, two features appear likely to be included: (1) an expansion of the criteria rendering and applicable mandatory minimum sentences in certain drug cases; and, (2) increased incentive for federal inmates to reduce the time they serve in prison by completing successfully certain training and rehabilitation programs.
For nearly 50 years, legislative attempts to provide prosecutors additional leeway to criminally charge automakers and their employees have been quashed.
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The pattern of loopholes and legislative victories illustrates the lobbying might and political clout of the auto industry, even as it careens from one safety crisis to another.
In a move apparently unprecedented in U.S. history, President Obama visited yesterday a federal prison in Oklahoma and once more joined the bipartisan demands for reform of federal criminal justice particularly the horrific, stupid and wasteful mandatory sentences in drug cases. The New York Times reports, Obama, In Oklahoma, Takes Reform Message to Prison Cell Block.
The defendant, Edwards, pleaded guilty to a drug conspiracy involving more than 500 g of cocaine and more than 28 g of crack cocaine. Even as a first time offense this would trigger application of a five-year mandatory minimum under 21 USC 841. The district court applied a four-level enhancement as an organizer or leader and also found that Edwards' challenge to this enhancement was frivolous, which caused the District Judge to deny a reduction for acceptance of responsibility, which almost always (in this case proves not always) goes along with the guilty plea.
Edwards'trial counsel, instead of contenting himself with making legal arguments, which could not have been a basis for denying credit for acceptance of responsibility, made factual representations – apparently based on his client's statements to him – about the nature of the contacts among the participants. The district court concluded that these representations amount to frivolously contesting the facts, and we do not think this conclusion was clearly erroneous. Other than saying "that is what my client told me," Edwards'counsel presented no evidence in support of his factual representation that Ricky put Mendez in contact with Edwards or that another person had a more extensive role in coordinating the activities among the participants. The lack of evidence supporting the factual representations itself suggests frivolity.
It seems at worst that Edwards had a weak factual basis for arguing that the supervisor/organizer enhancement should not be applied to him. But there is no outright denial; it does not appear, even after a very close reading of the opinion, that Edwards at any point denies having made the phone calls at issue; rather, his counsel argues that they aren't as significant as they may appear and, therefore, do not support application of the enhancement. This seems like a reasonable argument, not a frivolous one, especially given some of the Sixth Circuit's pronouncements in precedential opinions, which this case is not, about defense counsel's duty to present vigorously arguments on their client's behalf.
Judge Merritt notes that the initial draft of the presentence report "did not contain a leadership role enhancement," an omission that very strongly counters the assertion that Edwards later challenge to it was frivolous. In addition, Judge Merritt reports that the revised presentence report also recommended a three-level reduction based on acceptance of responsibility. This also strongly counters the frivolous finding.
The upshot of all of this is that of a sentence is lengthened based on the trial counsel's decision that there was good grounds to challenge the leadership enhancement. It would seem that leaves Edwards with an ineffective assistance of counsel claim, since an election to advance a frivolous argument cannot, as a matter of law, constitute a reasonable tactical decision, and there is clearly prejudice to Edwards, since it appears that the acceptance of responsibility would have been granted and Edward sentence would have been less had the challenge not been mounted.
And so one might ask reasonably what has been achieved? The sentence of the district court judge has been affirmed, to be sure, but at the cost of feeding what appears to be a very well-founded ineffective assistance of counsel claim, which will consume additional judicial resources to achieve imposition of a sentence that should have been imposed to begin with.
In an overdue, welcome and wise move yesterday, President Obama commuted the sentences of 46 federal inmates, who had been convicted of drug offenses. There is widespread coverage of the commutations, which terminate an individual's sentence but do not erase the conviction, at the New York Times, Washington Post and USA Today among others. A list of the commutations can be found here.
There are three reforms that should occur immediately. First, the Fair Sentencing Act of 2010 should be fully retroactive, and the sentences of all persons convicted under the law's prior incarnation, which imposed a mandatory minimum sentence of 5 years for possession of 5 grams or more of crack cocaine, accordingly adjusted. This would result in the release of a few prisoners that have already served far longer than they would under the current law. This change is particularly important, because a major impetus for the Fair Sentencing Act was to correct racial disparities inflicted by the prior law.
Second, the current law that equates an infant marijuana plant, whether male or female, with a kilogram of finished, packaged marijuana should be changed. An infant marijuana plant does not have anywhere near the same commercial value of a finished, ready-for-sale kilo of marijuana. An infant male marijuana plant has no or virtually no commercial value. Law should have some connection to reality.
Third, there should be greater opportunities for federal district judges to determine that a mandatory minimum sentence should not be applied. This ability would be rarely exercised, I expect, but would allow some injustices not to occur.
Once again sitting en banc the Sixth Circuit has split exactly and completely on the lines of the party of the President that appointed them; all Republican appointees on one side, all Democratic appointees on the other. The party line split is now 9-6 in favor of Republican appointees at present; there is an open seat from Kentucky that will not get filled until after the next election, at least in the world as presently known.
The case is Hill v. Curtin, a habeas corpus case where the issue is whether the state court trial judge wrongfully denied the defendant's right to self-representation, which was denied as untimely. Judge Richard Griffin wrote the majority opinion joined by all eight of the other judges appointed by Republican presidents. Judge Bernice Donald, who wrote the panel opinion, was joined by her five Democratically-appointed colleagues in dissent. This outcome I earlier predicted here.
