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Broader Sentencing Considerations

Recently, courts and legislatures have increasingly been considering military service as a mitigating factor in sentencing. In Kansas, the state legislature is considering a bill to reduce sentences for defendants who are combat veterans and have post-traumatic stress disorder. The aim is to assist returning veterans from Iraq and Afghanistan who become entangled in the criminal justice system to get the help they may need if they are suffering from PTSD.

In North Carolina, if a defendant was honorably discharged from the military, judges must use that fact as a mitigating factor at sentencing. And in several states, including Tennessee and Louisiana, courts have ruled that judges are allowed to use prior military service to lessen a sentence. A federal judge in Denver recently sentenced an Iraq war veteran convicted of bribery to probation instead of prison. A federal judge in Virginia rendered a shorter sentence in a child pornography case in part because the defendant suffered from PTSD after military service. In the recent capital case of Porter v. McCollum, 130 S.Ct. 447 (2009) (08-10537), the Supreme Court stated: Continue reading ›

2010 02 04 admin Sentencing Comments (0) Permalink

Read This Re-Entry Deconstruction Article

Doug Keller, an appellate federal public defender in San Diego has written this excellent treatise deconstructing the Illegal entry guideline, U.S.S.G. § 2L1.2. Not only is this article a must read for anyone who is dealing with §1326 cases, it also provides valuable insight into how the Sentencing Commission does its work, and demonstrates how much information is out there for use in sentencing proceedings.

We all know that the Booker, Rita, Gall, Kimbrough, etc. line of cases made the guidelines advisory and clarified that sentencing judges are not bound, and in certain circumstances should not be bound, by the advice that the guidelines give. The familiar formulation of this is from Kimbrough: Guidelines that fail to take into account empirical data and national experience are entitled to less respect because the Guideline at issue would “not exemplify the Commission’s exercise of its characteristic institutional role,” which could result in a “Guidelines sentence itself [that] fails properly to reflect § 3553(a) considerations.” Continue reading ›

2010 02 03 admin Immigration
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Success Story: Acquittals in US v. Smiskin

Congratulations to Ken Therrien (CJA), Kraig Gardner(AFD), and Mike Lynch (CJA) on the recent “not guilty” verdicts in US v. Harry, Kato, and Jeanne Smiskin. The Smiskins were acquitted on January 20, 2010 of conspiracy to traffic in contraband cigarettes. Victory for the Smiskins was well-deserved and a long time coming.

Harry and Kato Smiskin were originally charged with trafficking in contraband cigarettes back in 2004. The government’s theory was that the Smiskins had violated the cigarette trafficking laws by not pre-notifying the state of Washington before transporting cigarettes that did not bear tax stamps. Judge Shea dismissed the indictment, holding that the activities alleged in the indictment were covered by the Yakama Treaty of 1855, which preserved a broad right to travel for purposes of trade. The Ninth Circuit affirmed. United States v. Smiskin, 487 F.3d 1260 (9th Cir. 2007). As explained by the Ninth Circuit, at the time of the Treaty of 1855, “[t]ribal members were not required to notify anyone prior to transporting goods to market.” 487 F.3d at 1266. Thus, the treaty preserves the same right today and “the federal government cannot impose criminal sanctions on tribal members for not providing notice to the State before transporting tobacco for sale or trade.” Id. Continue reading ›

2010 02 02 admin Indian Jurisdiction
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New DOJ Guidelines Regarding Discovery in Criminal Cases

On January 4, 2010, the Department of Justice issued three memoranda concerning discovery practices of U.S. Attorneys and their assistants. Attorney General Eric Holder prefaced the announcement, stating: “[t]he Department of Justice’s responsibility is not just to win cases, but to do justice. Along with the increased training for prosecutors we have already instituted, these new guidelines will ensure that we strive to meet that standard every day and in every case.”

The third memo issued, “Guidance for Prosecutors Regarding Criminal Discovery,” provides the most specific details of how prosecutors are supposed to ensure that exculpatory material is properly reviewed, discovered and disclosed. Among these steps prosecutors are directed to take:

  • the identification of all members of the “prosecution team” (e.g., law enforcement, other government agencies and, of course, the U.S. Attorney’s Office)
  • a delineation of materials to be reviewed for discoverable material
  • cooperating witness or informant files
  • investigative agency files
  • parallel civil investigations
  • substantive case-related communications
  • potential Giglio information, regardless of source
  • inconsistencies in witness statements, regardless of when they occur
  • agent notes
  • positing with the prosecutor the ultimate responsibility for compliance with discovery obligations
  • an admonishment not to describe provided discovery as “open-file”
  • establishment of record-keeping to track discovery disclosures

The original three DOJ memos may be found here. For another perspective with additional links, here is another federal defender organization blog that discusses these changes.

–James Becker

2010 02 01 admin Discovery
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U.S. Senate Gets Closer to Full Review of Criminal Justice System

On January 21, 2010, the U.S. Senate Judiciary Committee passed S.714 , the National Criminal Justice Commission Act of 2009. The bill would create a blue-ribbon commission to conduct a review of key parts of the criminal justice system, with a focus on sentencing and incarceration policies, and to offer concrete recommendations for reform to the President and Congress within 18 months. The legislation, authored by Senator Jim Webb (D-VA.), was approved unanimously by the Judiciary Committee and now moves to the full Senate floor for consideration and possible vote.The purpose of the Commission is to undertake a comprehensive review of the criminal justice system in order to make findings regarding federal and state criminal justice policies and practices, as well as recommendations to improve the fairness, cost-effectiveness, and overall implementation of the system.

The findings contained in the bill provide that the U.S. has the highest incarceration rates per capita than any other nation in the world, with a total of 2,380,000 people in prison. This figure represents an incarceration rate that is five times the world’s average incarceration rate. The bill also finds that 1 in every 31 adults in the U.S. is incarcerated or on probation or parole which is an increase of 290 percent since 1980. These numbers indicate the pressing urgency and need for the federal government to seriously scrutinize federal criminal laws and DOJ policies and practices that contribute to this crisis. The bill also notes the drastic increases in the number of drug offenders in prison since 1980 who have no violent history or prior instances of drug dealing, as well as the reality that prisons and jails have become holding facilities for those with serious mental illness who remain untreated. Continue reading ›

2010 01 29 admin Legal News
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Criminal Justice Act Guidelines

The Criminal Justice Act Guidelines have been reorganized and renumbered. While no substantive changes to the guidelines have been identified, it is important to be able to access them easily. As you may know, both the Criminal Justice Act itself, and the guidelines for CJA panel members, are helpful tools in effective representation of indigent criminal defendants. The Criminal Justice Act “CJA” is codified at 18 U.S.C. § 3006A et seq. The link to the non-westlaw version of the statute is here. This statute provides that a felony case will receive a maximum reimbursement of $7000, absent a certification from the district court judge that amounts over $7K are necessary to provide “fair compensation” and provided further that the Chief Judge of the circuit approves payment of the excess amount. Ultimately, the bill is subject to being made public, but may be redacted for a number of reasons set forth at 18 U.S.C. §3006A(d)(4)(D). Specifically, CJA defense counsel has the right to ask the court to redact for purposes of protecting a client’s right to avoid self-incrimination per United States Constitution Art. V; to protect the defendant’s 6th amendment right to effective assistance of counsel, to protect both attorney-client and attorney work product privilege, safety reasons, or any other reason “that justice may require.”

The good news about an order for a new trial is that it is considered a new case, not subject to the $7000 case maximum. Continue reading ›

2010 01 26 admin CJA News
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Mandatory collection of DNA samples from anyone charged with a crime??

Our clients are increasingly being forced to divulge the most personable information possible– their complete genetic profile– simply upon being arrested for a crime. This action is being taken without a warrant or any finding of probable cause, and often in cases in which DNA evidence is not at issue. Once Pandora’s box is opened and a client’s DNA sample is taken and placed into the federal database, there is little chance of forcing the genetic genie back into the bottle.

The DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. 14135a, required the collection of a DNA sample “from each individual in the custody of the Bureau of Prisons who is, or has been, convicted of a qualifying Federal offense” and from “an individual on probation, parole or supervised release . . .” 42 U.S.C. 14135a(a)(1) & (2)(2000). Congress expanded the reach of this Act in 2006 by allowing the Attorney General to “collect DNA samples from individuals who are arrested, facing charges, or convicted . . .” 42 U.S.C. § 14135a (a) (1) (A) (emphasis added). Continue reading ›

2010 01 22 admin Issues to Preserve Comments (0) Permalink

Practice Tip: Look Out for Violations of the Interstate Agreement on Detainers Act

The Interstate Agreement on Detainers Act (IADA), 18 U.S.C. App. 2, creates a uniform procedure for lodging and executing detainers. The IADA provides for the expeditious delivery of a prisoner to a requesting/receiving jurisdiction for trial prior to termination of a sentence being served by the prisoner in the sending/detaining jurisdiction. Most states, including Washington, and the United States are participating jurisdictions to the Agreement.

Article III of the Agreement permits a prisoner to initiate final disposition of any untried indictment, information or complaint against him in another State on the basis of which a detainer has been lodged against him. Under the Agreement, the prisoner can request final disposition of the charge within 180 days. The state having custody of the prisoner must provide notification of any detainers, must inform the prisoner of such and is required to notify the requesting state of the prisoner’s request for final disposition. Continue reading ›

2010 01 21 admin Issues to Preserve
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CJA Panel Meeting Notice

Spokane’s next CJA panel meeting is scheduled for Thursday, January 21, from 12-1 pm. The guest speaker will be Nancy Tenney, Assistant Federal Defender with the Western District of Washington. The program is entitled, “Strategies for Defending Clients Charged in Multi-Defendant Drug Conspiracy Cases.” Lunch will be provided. Please RSVP to the Spokane office if you can attend.

Yakima’s next panel meeting will be held on Thursday, January 28, 2009 at 4:30 p.m. Rebecca Pennell will be discussing “How to Use the Internet to Enhance Your District Court Practice.” As always, there will be pizza and diet coke.

2010 01 17 admin Training Notices Comments (0) Permalink

Assessing Victims in Child Porn Cases

An important case was decided from the Ninth Circuit this month that deserves special attention: United States v. Burkholder, No. 08-50446 (January 8, 2010). The Ninth Circuit took a close look at the Crime Victims’ Rights Act and whether the district court denied victims the right to be “reasonably heard” under the Act when the district court struck victim letters from the Presentence Investigation Report. The Ninth Circuit ultimately concluded that it was not error to strike the letters in this context.

Some background is instructive: Mr. Burkholder pled guilty to a single count of possession of child pornography. At sentencing, the district court judge struck “victim impact statements” attached to the Presentence Investigation Report. The letters were authored by children depicted in the images that Burkholder possessed. The district court expressed concern that the letters detailed descriptions about the harm caused by the abuse and not the harm suffered when a person was found in possession of the images of the abuse. The district court stated that the letters contained conduct unrelated to the defendant and that it was obvious that the children would be distressed by the images possessed by Burkholder. The district court struck the letters from the Presentence Investigation Report after it determined that the letters addressed harm that the defendant was not responsible for. The district court ultimately sentenced Burkholder to a sentence of thirty months, which was below the sentence agreed by the parties in the plea agreement. The government appealed arguing that the district court erred in striking the letters was a violation of the Crime Victims’ Rights Act’s provision for victims to be “reasonably heard”. Continue reading ›

2010 01 15 admin Sentencing
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