Category Archives: Justice News

Supreme Court’s Decision Protects From Dangerously Confusing & Vague “Aggravated Felony” Statute

Yesterday, April 17, 2018, in Sessions v. Dimaya, No. 15-1498, the Supreme Court (in a 5-4 decision) held that 18 U.S.C. § 16’s residual clause is unconstitutionally vague. At issue in the case, the Immigration and Nationality Act (INA) provides that a noncitizen convicted of an “aggravated felony” after entering the United States will be deported. 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C).

Under the INA, an “aggravated felony” includes, among other offenses, a “crime of violence” as defined in 18 U.S.C. § 16 (excluding a purely political offense) for which the term of imprisonment is at least one year. The term “crime of violence” under § 16 is defined as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Subsection (b) is typically referred to as a residual clause.

A majority of the Court held that a straightforward application of Johnson v. United States, 135 S. Ct. 2551 (2015) resolved this case. In Johnson, the Supreme Court held that a similar residual clause found in the Armed Career Criminal Act, 18 U.S.C. § 924(e), violated the Constitution’s guarantee of due process. In that case, the residual clause was used to increase a criminal defendant’s sentencing range. Although the specific language of the residual clause in § 16(b) was not identical to the residual clause of § 924(e), the Court held that it suffered the same infirmities.

Specifically, the Court found two features of the residual clause in both statutes conspired to make them unconstitutional: determining an “ordinary case” and determining the risk posed by the crime. The majority rejected the government’s attempts to distinguish the two clauses.

Justice Gorsuch joined with Justices Kagan, Ginsburg, Breyer, and Sotomayor, in finding the residual clause unconstitutionally vague.

Although Justice Gorsuch filed an opinion concurring in the judgment, he did not join in all parts of the opinion authored by Justice Kagan. Chief Justice Roberts filed a dissenting opinion, in which Justices Kennedy, Thomas, and Alito, joined. Justice Thomas filed a dissenting opinion, in which Justices Kennedy and Alito joined in part.

The TED Conference On Big Ideas Is Putting Its Money Where Its Mouth IsIs

The big-idea Technology, Entertainment and Design (TED) Conference is now backing up its talk on world-changing innovations with big money.

The organizers of the conference known for deep thinking discussions announced Wednesday it has raised $400 million for projects with “the potential to create massive, global change.”

The new initiative known as the Audacious Project will replace the annual $1 million TED prize awards which have been allocated since 2005, with a hefty bump in funding.

TED organizers say the project will fund “collaborative philanthropy for bold ideas” and announced the first awards to organizations working on innovative ideas for health care, justice, agriculture and the environment.

“In some ways, it’s the most ambitious thing TED has ever been involved with,” TED curator Chris Anderson said before taking to the stage to announce the project in Vancouver.

“It’s like trying to recreate what an IPO does, but instead of investing in shares to make money we are investing in dreams to make change.”

Inside TED, they coined the acronym “APO,” for Audacious Project Offering.

Anderson has encouraged TED’s influential community to act on big ideas that win their hearts or minds at annual conferences.

Each year, the project will identify up to five ideas that stand out as “thrillingly bold” with a credible path to execution.

Laurene Powell Jobs, the widow of legendary Apple co-founder Steve Jobs, took to the TED stage to help unveil the project, saying it could change millions of lives for the better by turning bold ideas for good into action.

“We must dream alongside and amplify those voices,” she told the TED audience.

TED said pledges for the project came from Skoll Foundation, Virgin Unite, Dalio Foundation, The Bridgespan Group and others.

– Oceans to Heavens –

The slate of those being backed by the project consisted of The Environmental Defense Fund; The Bail Project; GirlTrek; Sightsavers, and Woods Hole Oceanographic Institution.

US-based Bail Project will manage a nationwide fund to help people post bond to get out of jail while their guilt or innocence is determined.

The Environmental Defense Fund wants to track methane pollution from space with a network of satellites.

“Cutting methane emissions from the global oil and gas industry is the fastest thing we can do right now to put the brakes on climate change,” said EDF president Fred Krupp.

The Woods Hole institution plans to uncover the secrets of a mysterious layer of ocean some 200 to 1,000 meters (600 to 3,000 feet) deep considered integral to the marine food ecosystem and the earth’s climate.

GirlTrek in the US will train activists to improve the health of black women by getting them walking more.

Sightsavers aims to eliminate trachoma, a treatable disease that can blind people and remains a bane in low-income communities.

“We are in a moment where humans more than ever what to change the future,” Anderson said.

“The money is out there; people want to spend it on good ideas.”

– Daring to dream –

Anyone in the world is free to pitch their dreams online at an audaciousproject.org website with a handful picked annually, according to TED.

“We are looking for projects that are capable of impacting at least millions of lives in some way, or at a planetary scale,” Anderson said.

“Almost the single biggest hope is that this process unlocks dreams that entrepreneurs never dared put forward before.”

Since starting as an intimate gathering on the California coast 34 years ago, TED has grown into a global media platform with a stated devotion to “ideas worth spreading.”

TED has a massive following for its trademark presentations in which speakers strive to give “the talk of their lives” in 18 minutes.

The theme of the annual TED conference this week in Vancouver is “Age of Amazement,” but with a keen eye on unintended consequences.

AG Sessions Announces Zero-Tolerance For Illegal Entry & New Charging Policies

On April 6, 2018, Attorney General Jefferson Beauregard Sessions III notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a)(prohibiting both attempted illegal entry and illegal entry in the United States by an alien). “The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest—that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” said Attorney General Jeff Sessions.

The new policy comes as the Department of Homeland Security reported a 203 percent increase illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018. SeeDHS Southwest Border Migration FY2018.

The recent increase follows a steep drop in illegal border crossings after President Trump’s inauguration, which were historically low through most of his first summer in office.

On April 11, in a follow-up to his zero-tolerance policy, the Attorney General sent a memorandum for all federal prosecutors titled Renewed Commitment to Criminal Immigration Enforcement, detailing the new charging-practice policies in immigration cases.

(The American Sentinel Newsletter notes that while the problem of illegal entry into our nation must be and remain a priority for the Trump Administration, zero-tolerance policies which strip local authorities of their discretion fly in the face of the very reasoning underlying the creation of local United States Attorneys – the need for charging decisions to reflect the will of the people in the district such decisions are being made – and are, in the opinion of the Sentinel, dangerously federalistic.)

United States Sentencing Commission Drops The Ball … Again

For the last several months the United States Sentencing Commission has taunted and teased non-violent 1st time federal offenders with the possibilty of relief from some of the more onerous sentencing restrictions that have been placed on their ability to return to their communities in a timely and meaningful way.

Created by Congress in 1984 to lay down “guidelines” for federal judges to follow when imposing sentences on federal defendants, the Commission had long been criticized for its punative and often seemingly racist approach to sentencing.

In more recent years the Commission has slowly innovated and retooled the Guidlines, making decisions which have brought proportionality and common sense back into federal sentencing.

It had been thought that, given President Trumps’ campaign promises, this trend might continue into the new administration.

The Guidelines are reviewed and amended annually, and indeed, at the beginning of the most current amendment cycle, it seemed that the Commission was poised to finally address – as so many states have – the painful absence of leniency available for non-violent 1st time federal offenders, many of whom face extended incarceration for things like minor misunderstandings of our voluminous tax code.

Several ideas were floated publicly, and the Sentinel watched the Commission’s hearing today with great interest.

Alas, it was not to be.

Rather than adopting, or even discussing, any one of several possible amendments to grant a greater range of sentencing options to federal judges for non-violent and often harmless defendants, the Commission failed to discuss the issue at all.

In what is likely their shortest public hearing to date, the Commission breezed through several other proposed amendments and adjorned before the subject could even be raised, let alone discussed, as it had been in prior meetings, tabling the issue for another year, possibly forever.

The Sentinel is not pro-inmate. Nor are we pro-law enforcement. The Sentinel is pro-America!

America suffers when we pay up to $250,000 a year* to incarcerate non-violent 1st time offenders, for years on end, when they should be working in our communities, paying restitution for their crimes, and learning (or returning to) productive roles in society.

Isolating these men and women away for years harms them, destroys families and costs us, the American taxpayer, billions of dollars a year. We’re paying to house, feed and provide medical care for them, when they could and should be supporting themselves and repaying their victims, whether those victims be (and often are) federal agencies like the IRS, or investors who lost money in some ill-advised scheme.

Countless states have figured this out, are saving money and reducing recividism in the process.

Sooner or later, Congress and the Commission will have to follow suit.

Text of the Commissions’ official press release appears below.

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U.S. SENTENCING COMMISSION UNANIMOUSLY ADOPTS 2018 GUIDELINE AMENDMENTS

WASHINGTON, D.C. (April 12, 2018) — The United States Sentencing Commission unanimously voted on a slate of new amendments to the Guidelines Manual. Among other actions, the Commissioners voted to update the federal sentencing guidelines to address evolving challenges related to the distribution of synthetic drugs. The amendments reflect a collaborative, detailed, and data-driven approach to federal sentencing policy.

At the public meeting, Circuit Judge William H. Pryor Jr., acting chair of the Commission, remarked, “I would like to acknowledge the unique challenge that the Commission faced during this current amendment cycle. The Sentencing Reform Act of 1984 contemplates that there will be seven voting members on the Commission, appointed by the President and confirmed by the Senate. While setting sentencing policy is always difficult—because it impacts the liberty of our fellow citizens—reaching consensus was particularly challenging and critical this amendment cycle. Under the statute, we need an affirmative vote of four Commissioners to approve any pending amendments.”

At the meeting, the Commissioners approved a multi-part synthetic drugs amendment. The amendment draws upon public comment, expert testimony, and data analysis gathered during a multi-year study of synthetic drugs. Before today’s actions, many new synthetic drugs were not referenced in the federal sentencing guidelines. As a result, courts have faced expensive and resource-intensive hearings. The Commission’s actions reflect the evolving nature of these new drugs and will simplify and promote uniformity in sentencing these offenders.

Among today’s actions, the Commissioners voted to adopt a new guideline definition of the term “fentanyl analogue.” The change effectively raises the guideline penalties for fentanyl analogues to a level more consistent with the current statutory penalty structure. To address the severe dangers posed by fentanyl, the Commissioners also voted to adopt a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (which equates to an approximate 50 percent increase in sentence).

The new amendment also establishes drug ratios and minimum offense levels for two new classes of synthetics drugs: synthetic cathinones (often referred to as “bath salts”) and synthetic cannabinoids (including, but not limited to, “K2” or “spice”). Following a multi-year study and series of public hearings with experts, the Commission found that synthetic cathinones possess a common chemical structure that is sufficiently similar to treat as a single class of synthetic drugs. The Commission also found that, while synthetic cannabinoids differ in chemical structure, the drugs induce similar biological responses and share similar pharmacological effects. In setting the new drug ratios, the Commission considered among other factors, the severity of the medical harms to the user, the current ratios applied in similar cases, known trafficking behaviors, and concerns for public safety. In recognition that potencies vary, the Commission also adopted departure language for drugs in a class that are more or less potent.

The Commission also voted to adopt a new application note providing that judges should consider alternative sentencing options for “nonviolent first offenders” whose applicable guideline range falls within Zones A or B. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. This narrowly-tailored amendment is consistent with the directive to the Commission in 28 U.S.C. § 994(j).

Acting Chair Pryor also observed, “Among the four of us here today, the unanimous agreement on this slate of amendments reflects even more collaboration and compromise than in a typical amendment cycle, and I would like to thank my fellow Commissioners for their time and service. We worked together to develop solutions that improve the federal sentencing guidelines in a manner that balances fairness, justice, fiscal responsibility, and public safety. I look forward to working with my colleagues to strengthen and to simplify the guidelines. Together, we will continue our efforts to ensure clear and effective guidance for federal courts across the country.”

At the meeting, the Commission also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes resulting from the Bipartisan Budget Act of 2015. The Commission received valuable comment from the U.S. Senate Committee on Finance, the U.S. House of Representatives Ways and Means Committee, and the U.S. House of Representatives Judiciary Committee as well as the Social Security Administration. Today’s amendment provides for an enhancement and a minimum offense level for individuals who violate certain positions of trust (e.g., health care providers, claims representatives, and others) in a manner that addresses the seriousness and sophistication of these fraudulent schemes.

The Commission also voted to adopt the recommendations made by the Tribal Issues Advisory Group in its May 2016 report. The amendment provides a non-exhaustive list of factors that courts may consider in determining whether a prior tribal court conviction warrants an upward departure from the recommended sentencing range. The amendment also adds a definition for “court protection order” for purposes of applying an enhancement under the aggravated assault, harassment, and domestic violence guidelines. Other technical and miscellaneous amendments were also adopted at today’s public meeting.

The full set of amendments will be transmitted to Congress by May 1, 2018. If Congress does not act to disapprove the amendments, they will go into effect on November 1, 2018

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*While the average “cost of incarceration” published by the Federal Bureau of Prisons is just north of $30,000, the FBOP admits that countless non-violent inmates have medical conditions and/or “personal circumstances” which result in cost to keep them running a quarter of a million dollars or more.

Third Circuit Extends Holding Of Miller v. Alabama To De Facto Life Sentences

April 9th, in United States v. Grant, No. 16-3820, the Third Circuit extended the holding in Miller v. Alabama, 567 U.S. 460 (2012) (holding that only incorrigible juvenile homicide offenders who have no capacity to reform may be sentenced to life in prison without the possibility of parole; otherwise, a non-incorrigible juvenile offender must have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”) to de facto life sentences – that is, a sentence (in years) that meets or exceeds the life expectancy of a juvenile offender. In this case, the sentence was for 65 years, which might make him eligible for release no earlier than at age 72. The court characterized its holding as an “incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders.” The court noted that its holding has been adopted by the Seventh, Ninth, and Tenth Circuits, but acknowledged a contrary holding from the Eighth Circuit.