Thursday, December 07, 2006

Federal Defender Issues In Need Of A Grant Of Certiorari

The SCOTUS blog has solicited input on areas where the Supreme Court ought to be doing something differently (here). Professor Berman has long thought non-capital criminal issues need more attention (here). Although I have been glad to see grants of certiorari on issues such as simple possession of drugs as an aggravated felony (Lopez), retroactivity of post-Apprendi Sixth Amendment jurisprudence (Burton), and the presumption of reasonableness morass (Claiborn), there are several areas that involve either huge numbers of cases, significant conflicts in the lower courts, or both, that need to be addressed as soon as possible.

My three nominations for areas Most In Need Of Cert are: 1) the three-way Circuit split about denying Fourth Amendment rights to persons charged with Illegal Reentry, which is now one of the most frequently prosecuted federal felonies; 2) the Bureau of Prisons’ interpretation of the federal good time statute, which Justice Stevens found was probably wrong and merited further study, and which costs well over 36,000 years in federal over-incarceration; and 3) any of the many issues where the Circuit courts are refusing to follow the Supreme Court’s holdings in Haley and Shepard that the Doctrine of Constitutional Avoidance must be applied in interpreting non-specific statutes – such as the Armed Career Criminal Act, the amended immigration statute, and the sentencing statutes on burden of proof – on the scope and application of Almendarez-Torres and the post-Apprendi Sixth Amendment cases.

The Fourth Amendment Allows No Exception For Criminal Immigration Prosecutions.

Several of the Circuits with the greatest volume of illegal reentry cases have allowed trial courts to introduce the products of illegal searches and seizures without requiring the government to prove an independent source. Both intra- and inter-Circuit conflicts have exposed irreconcilable fault lines running through the application of the Exclusionary Rule in illegal reentry prosecutions. One District Court identified three clusters of Circuit approaches (United States v. Juarez-Torres, 2006 WL 2129037 (D.N.M. 2006)); the Ninth Circuit denied en banc review in Ortiz-Hernandez with nine judges signing on to a dissent identifying both the basic analytic error that led to the conflict and the threat to civil liberties of the government position.

The legal archaeology leads back to the Supreme Court opinion in Lopez-Mendoza, the case in which the Court decided that the Exclusionary Rule does not apply in civil immigration proceedings. The Court used loose language in rejecting, under Frisbie v. Collins , a claim that an illegal seizure bars any further immigration proceedings against the person. The sentence -- "The 'body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as the fruit of an illegal arrest" -- has morphed in some jurisdictions into an exception to the Exclusionary Rule in criminal cases regarding evidence of a person's identity for use in criminal immigration prosecutions. The argument that the normal Exclusionary Rule applies in the criminal immigration context is set out here and here in petitions that were denied this fall. The Tenth Circuit recently filed a split opinion in Olivares-Rangel demonstrating the continued need for Supreme Court guidance.

The Circuits all claim to base their conflicting views on Lopez-Mendoza, so only the Supreme Court can finally resolve the question. The issue should also be accepted for review because ten times as many illegal reentry prosecutions are being filed annually than ten years ago. This issue is potentially involved in many of the over 15,000 immigration prosecutions in 2004 (22.5% of all federal sentences). This issue seems perfect for certiorari, with the Circuits scattered, the large number of cases affected, and the need to protect civil liberties by eliminating a Fourth Amendment double standard.

The Good Time Statute Requires Calculation Based On The Sentence Imposed, Not Time Served.

Last year, a federal district judge in Texas joined two other district judges who had found that the BOP has misinterpreted the federal good time credit statute, thereby requiring prisoners to serve seven extra days for every year of their terms of imprisonment. After reversal in the Fifth Circuit, the case came before the Supreme Court on a petition for certiorari. In a Statement Respecting the Denial of Certiorari, Justice Stevens complimented the "thoughtful opinion" in the Texas district court and indicated the merit of the prisoners’ postition:

"[B]oth the text and the history of the statute strongly suggest that [the good time credit statute] was not intended to alter the pre-existing approach of calculating good-time credit based on the sentence imposed. . . .[T]he question has sufficient importance to merit further study, not only by judges but by other Government officials as well."

Although the "pre-existing approach" resulted in a maximum of 15% good time credits against the sentence imposed, instead of the BOP's maximum of 12.8%, Justice Stevens found the lack of a Circuit split determinative.

This issue is of exceptional importance and should be addressed regardless of a Circuit split. Resolution of the issues will affect the actual time served of over 95% of federal prisoners, involving thousands of years and hundreds of millions of dollars in prison expenses. Given the calibration of the Sentencing Table to the 15% rule, federal prison sentences are 2.2% higher than called for by the Sentencing Commission (as blogged here). In an unprecedented step, the Federal Public and Community Defenders for every District signed on to an amicus curiae brief asking the Court to resolve this question of unprecedented importance.

And there are the continuing costs of litigation (not to mention the $346 million in over-incarceration costs and additional $66 million with each new year). We have accepted the Justice Stevens challenge and are preparing the third wave of litigation (the first established that the good time statute is ambiguous, culminating in Pacheco-Camacho; the second sought to develop a split on the statute from the three district court opinions). This should not be necessary given that litigation over violations of the Administrative Procedure Act (as set out in the filing linked here) would be mooted by simply following the plain language of the statute or, at worst, applying the rule of lenity to an ambiguous penal statute (as outlined in the Mujahid petition here, which also traces the inconsistencies in the Circuit approaches).

The most recent purely statutory challenge is coming to the Court from the Tenth Circuit in Wright. The Court should take this opportunity to settle the good time statute's construction once and for all.

The Lower Courts Are Not Following The Supreme Court’s Directions On The Doctrine Of Constitutional Avoidance.

Most federal statutes say nothing about pleading and proving factors that increase sentences. With Justice Thomas’s renunciation of his vote in Almendarez-Torres, a majority of Justices apparently believe that all facts that increase the statutory maximum must be pleaded and proven in compliance with the Fifth and Sixth Amendments. Although Almendarez-Torres is only a Fifth Amendment case (the opinion expressly states it takes no position on means of proof), Circuit courts routinely extend its holding to the sequence and characteristics of prior convictions.

Since Apprendi, hundreds, probably thousands, of cases have been litigated with a direct claim that Almendarez-Torres is no longer good law. As reflected by the interchange between Justice Thomas and Justice Stevens in Rangel-Reyes, the Court is not eager to revisit Almendarez-Torres. Nevertheless, the issue arises so often that some Circuits act as though there is a rubber stamp with that case name to affix near "Affirmed".

Both litigators and courts have failed to use a tool that avoids direct confrontation with Almendarez-Torres and has been approved by an overwhelming majority of the Court: application of the Doctrine of Constitutional Avoidance to Almendarez-Torres where the underlying statute does not expressly address questions of pleading and proof. In both Haley and Shepard, the Supreme Court found that application and extension of Almendarez-Torres raised serious constitutional questions to be avoided if possible (as briefed here on the ACCA).

With no reference to the Doctrine of Constitutional Avoidance, the Fourth Circuit has split on whether enhancements under the Armed Career Criminal Act requires compliance with the Fifth and Sixth Amendments. Myriad illegal reentry cases are resolved by blind adherence to Almendarez-Torres despite the availability of a statutory argument to avoid serious constitutional doubts, as briefed here. As Justice Thomas put it in his dissent from denial of certiorari in Rangel-Reyes, "And until we [review Almendarez-Torres], countless criminal defendants will be denied the full protection afforded by the Fifth and Sixth Amendments, notwithstanding the agreement of a majority of the Court that this result is unconstitutional."

The most important place for application of the Doctrine of Constitutional Avoidance is on the standard for proving guidelines enhancements. The sentencing statutes provide no guidance on this question. Nevertheless, prison sentences are routinely enhanced by a standard of less than a reasonable doubt when the statutes leave the courts free to interpret them to require the traditional standard of proof for depriving a person of liberty (as blogged here and here).

A grant of certiorari on any of these issues would alert lower courts to the availability of the alternative manner to resolve the post-Apprendi doubts about the scope of Fifth and Sixth Amendment protections. The large number of affected cases, the liberty at stake, and the chronic failure to apply the holdings of Haley and Shepard warrant the Court’s intervention without delay.

Steve Sady, Chief Deputy Federal Pubic Defender, Portland, Oregon


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