Litigating in the post-Booker world should have prepared us for the Ninth's three-page, per curiam, New Year's Eve decision in Peeples, where a panel assures us that "mandatory" is really "discretionary," so there's no constitutional worries at all. United States v. Peeples, No. 10-30338 (9th Cir. Dec. 28, 2010), decision available here.
Players: Hard-fought appeal by Montana AFPD John Rhodes. Per curiam decision by Judges Goodwin, Rymer, and Graber.
Facts: After being indicted for receipt of child porn, Peeples was released by the magistrate. Id. at *1. Some conditions of release were mandatory under the Bail Reform Act, as amended by the Adam Walsh Act of 2006. Id. Specifically, Peeples had a curfew and was subject to electronic monitoring. Id. Peeples challenged these mandatory conditions of release; the district court upheld the conditions. Id.
Issue(s): “Peeples . . . appeals the district court’s denial of his constitutional challenge to his conditions of release imposed pursuant to the Adam Walsh Child Protection and Safety Act of 2006 (‘Walsh Act”), 18 U.S.C. § 3142(c)(1).” Id. “Peeples’s principal argument is that the Walsh Act’s mandatory release conditions are unconstitutional as applied to him.” Id. at *2.
Held: “Peeples’s argument that his constitutional rights have been violated because he has not been afforded an individualized determination of his release conditions cannot stand in light of the district court’s duty to exercise its discretion in imposing the mandated release conditions.” Id. at *2. “Because the Walsh Act requires the district court to exercise its discretion in applying the mandatory release conditions to each individual’s circumstances, and in view of the established principle that a statute should be read to avoid serious constitutional issues, Peeples’s constitutional challenge to the Walsh Act does not succeed.” Id. at *3.
Of Note: This is a disappointing decision – both in its outcome, and in its analysis. The three-page opinion gives short-shrift to serious constitutional challenges that have been (successfully) raised by the defense bar since the 2006 Adam Walsh amendments to the Bail Reform Act. Most notably, the case side-steps the biggest constitutional problem by reassuring us that a magistrate still exercises individualized discretion when imposing mandatory conditions in the release order.
Put plainly, the Ninth holds that the conditions aren’t mandatory because i) a magistrate is exercising his or her discretion when deciding to release the defendant at all, and ii) a magistrate still decides the fringes of the mandatory conditions, like when curfew starts. Id. at *2. The panel in Peeples dodges the real constitutional question: how can there be an individualized determination of release conditions, when a magistrate must impose a curfew and must impose electronic monitoring – even if the magistrate finds that those conditions are not warranted except for the Adam Walsh requirements? Hopefully an en banc panel or the Supreme Court will someday give this statute the constitutional scrutiny it deserves.
How to Use: Peeples only avoided constitutional infirmity by relying (too heavily) on the magistrate’s discretion in fashioning the nature of the mandatory Adam Walsh conditions. Id. at *2 (“The [magistrate] court took significant steps to ensure that the monitoring and curfew conditions did not interfere with Peebles’s work- and school-related needs.”) Use this principle against the government by fighting to limit the mandatory conditions as severely as possible. For example, why not limit electronic monitoring to only at night, when the defendant is on curfew? Id. If the magistrate bench refuses to tailor mandatory Adam Walsh conditions based on the specific characteristics of the defendant, then there isn’t an individualized assessment of release conditions. Without an individualized assessment, the statute is again vulnerable to an as-applied constitutional challenge. Put differently, Peebles’s stretch to save the Bail Reform Act from constitutional challenge now requires that magistrates do more tinkering with the mandatory Adam Walsh release conditions.
For Further Reading: For a useful discussion of the impact of the 2006 Adam Walsh Act on pretrial release, see Marcus J. Berghahn, Adam Walsh Act: Implementation, Implication and Challenges here.
New Year's card from http://www.dancegumbo.com/NYE
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org