Crime & Federalism

In Johnson v. California, the Court held that it would apply strict scrutiny to racial classifications within prisons.  I'm troubled by this.

Racial equality is one of our highest goals.  Indeed, I'm indignant when my friends not of the Anglo persuasion are treated differently - in my own sight - than I am.  But when it comes to prisons, pragmatism must prevail.

In prison, constitutional values should be subordinated to:

* Protecting guards from prisoners
* Protecting prisoners from guards
* Protecting prisonsers from rape and murder.

Everything else is gravy.  It's more important that a guard not get shanked, or that a prisoner not get raped, than it is for the Constitution to flourish within prison walls.  Some might consider me cruel.  I say -- What value does the Equal Protection Clause or First Amendment have to someone being gang-raped or stabbed?

Prisons are cruel places, where gangs trade human beings for cigarettes and drugs.  Most people have even odds that they'll escape prison rape.  If state officials rationally conclude that segregation will prevent these abonimable practices, then I say, listen to the states.

Justice Jackson famously said that the Constitution is not a suicide pact.  I say that the Constitution is not an enabling charter for prison rapists.

We should make it our first priority to provide prisoners the base of Maslow's pyramid - safety first, then constitutional rights.  Until we stop prisoner abuse, all but the Fourteenth Amendment's affirmative duty requirement should be stayed inside prison walls.

Timothy Lynch, director of the Cato Institute's Criminal Justice Project, has an article entitled "Changing of the Gavel: Supreme Court Decision Gives Bush Historic Chance to Reshape Federal Sentencing System" that you can access here.

Ex Post (a group of Columbia Law School students) is live-blogging Columbia Law School's sentencing symposium entitled: "Sentencing: What’s at Stake for the States?" 

You can read their first post, "Opening Remarks" here, and their second post, "Prosecutorial Discretion and Its Challenges" here.

I haven't posted about United States v. Booker because Professor Berman has it covered.  Visit Sentencing Law & Policy to have all of your Booker/Fanfan questions answered.

United States v. Pierce, No. 04-1191 (8th Cir., Nov. 9, 2004) (per curiam - Murphy, Hansen, Riley, JJ.).

Defendant plead guilty to meth and firearm-related offenses, including one count of violating 18 U.S.C. § 922, the felon-in-possession statute.  His base level sentence included points for the felon-in-possession offense.  The court also added 2-points under § 3D1.2(b)(1) for possessing a gun while committing a drug related offense.  The defendant argued that you can't give him points under § 3D1.2, possessing a firearm, because he already got points for possessing the firearm.

A unanimous three-judge panel disagreed:

In calculating a defendant’s offense level for a drug conviction, it does not constitute impermissible double-counting to apply a § 2D1.1(b)(1) enhancement, even though the defendant has also been convicted under § 922(g)(1) for possessing the same firearm.

Id. at *4 (citations omitted).

United States v. Dodge Caravan,
No. 03-1925 (8th Cir., Oct. 27, 2004) (Melloy, for Smith, J.J., Collotan, J. dissenting).
[Ed's note: This case has been reported as a constitutional law case. It's not that sexy, though it's very informative.]

Facts: [Citizen] was addicted to prescription pain killers. She forged prescriptions and used used her minivan and went to drive-thru pharmacies for the pain killers. She was the sole owner of the van, but she used it to drive her 3 children. After she was convicted of various offenses that carried a maximum fine of $10,000, the government brought a forfeiture action to take away her van that was valued at $12,000 to $14,000. The district court agreed and gave the van to the government. Obviously we would all be better off if the citizen was unable to drive her children to school. After all, citizen lived in Nebraska, famous for its public transportation. I'm sure the kids will be okay.

Issue: Before a district court orders property forfeited to the government, he must weigh and balance several factors. Here, a judge only looked to one factor before he ordered the citizen to forfeit personal property to the government. Is the forfeiture proper?

Holding: No. The case is remanded to the trial court to properly analyze the case.

Reasoning: The Excessive Fines Clause has a proportionality requirement. A fine violates the Excessive Fines Clause if its "grossly disproportionate." Id. at *7. Citing Bajakajian, 524 U.S. 321, 334 (1998). The burden of making a prima face showing of gross disproportionality is on the plaintiff. If she shows it, the court conducts an ad hoc analysis, looking at several factors, including:

* "the extent and duration of the criminal conduct"
* "the gravity of the offense weighed against the severity of the criminal sanction"
* "and the value of the property forfeited"
* "an assessment of the personal benefit reaped by the defendant"
* "the defendant’s motive and culpability"
* "the extent that the defendant’s interest and the enterprise itself are tainted by criminal conduct"
* "the monetary value of the property"
* "the extent of the criminal activity associated with the property"
* "the fact that the property was a residence"
* "the effect of the forfeiture on innocent occupants of the residence including children,
* "any other factors that an excessive fine analysis might require.”
Id. at *8.

Generally, if the forfeiture does not exceed the maximum fine allowed under the law, there is no excessive fine issue. Here, the judge did not look to all the factors. He also analyzed the citizen's sentence under the wrong sentencing guideline. Thus, the case is remanded for him to weigh and balance the factors, though the panel expressed no opinion on the constitutionality of the forfeiture.

Judge Colloton, a President George W. Bush appointee, dissented. For him, it was enough that the citizen used the van to illegally obtain the prescription pain killers. That's troubling to me, since it's the children who would ultimately be punished by the forfeiture. Let's use a little common sense, judge. A woman who drives her van to pick up prescription medication is not the same as a person who flies his jet to traffic kilos of cocaine. Have you no decency? Have you no sense of proportion?

In United States v. Dowell, No. 03-2747 (7th Cir., Oct. 27, 2004), a unanimous three-judge panel held that a district court's informed refusal to depart downward is non-reviewable.

This court determined in United States v. Franz that a district court’s refusal to depart downward may only be reviewed if the sentence was imposed in violation of the law. Thus, we review the sentence only if there is a legal error involved. There is no legal error, and therefore no jurisdiction for appellate review of a district court’s refusal to depart downward, when the district court understood that it had the legal authority to depart but, in its discretion, chose not to do so.

The court appreciated the prosecutor's building a record of informed discretion:

[T]he Assistant U.S. Attorney wisely made sure that this understanding was included in the record. This is a procedure we encourage. The sentencing transcript shows the following:

ASSISTANT U.S. ATTORNEY: Judge, just to be sure that the record is clear, the Court recognizes it has the authority to depart downward but has refused to as a matter of its discretion?

THE COURT: Yes. Yes, I think—that is my decision. Obviously, I gave a lot of thought to it beforehand. And the judgment isn’t signed yet, but I think that that is probably, frankly, the best thing for, not only society and the law, but for Mr. Dowell, given the options that exist right now.

Under U.S.S.G. § 3B1.3 the defendant faces a two-level enhancement “[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.” The Eleventh Circuit has read a third element into this: “For the enhancement to apply, [the] defendant must have been in a position of trust with respect to the victim of the crime.” United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998).

Today, in United States v. Britt, The Eleventh Circuit Court of Appeals provided us further guidance. In United States v. Britt , No. 04-10151, the Eleventh Circuit took this one step further, holding that the United States can be a victim of the defendant’s offense. Id. at *7 (“[T]he United States government, or more specifically [a federal agency can be the] victim of Britt’s offense.”) Moreover, facts that the court will rely upon in determining whether a person held a position of trust the amount of discretion in performing one’s official duties, and the power “to accept, reject, or report for further investigation the” suspicious activity relating to her duties. Id. at *6-7. The appellate wonks can take note of the standard of review.

In assessing a district court's application of the abuse-of-trust enhancement under U.S.S.G. § 3B1.3, we review the district court's findings of fact for clear error, but review de novo the district court's determination that the facts justify an abuse-of-trust enhancement.

Applying de novo review (ala Feeney), the Ninth Circuit today affirmed a district court's departing downard based on the disparity between co-defendants' sentences. United States v. Tzoc-Sierra, No. 03-10490, at *14524 (9th Cir., Oct. 13, 2004) ("A downward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances, so long as the codefendant used as a barometer for judging the disparity was convicted of the same offense as the defendant.")

If a gun is "found in the car [the defendant] was driving, the car was used to commit the drug crime, and drugs were found in the car" then there exists a "temporal and spatial relationship" between the defendant, the drugs, and the gun. United States v. Mendoza-Mesa, No. 02-4039, (8th Cir., Oct. 8, 2004) (applying U.S.S.G. § 2D1.1(b)).

This case definately satifies my, "Well, it seems like an easy issue that never should have even been argued, but if a CTA publishes an opinion on it, then it's important enough for me to read and blog about" test.