Category Archives: Justice News

In Unique Move, Federal Court of Appeals Urges Supreme Court to Sanity on Gun Statue Overkill

In United States v. Rivera-Ruperto, No. 12-2364, 2018 WL 1060694 (1st Cit. Feb. 27, 2018), the en banc First Circuit unanimously “urge[d] the Supreme Court to consider whether the Eighth Amendment permits . . .  the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.” Id. at 22.

The decision comes from a concurring opinion by Circuit Judge Barron, joined by all First Circuit Judges, to an order denying a petition for rehearing and rehearing en banc. Defendant Rivera-Ruperto was convicted in the United States District Court for the District of Puerto Rico, of conspiracy and attempted possession with intent to distribute controlled substance, possession of firearm in relation to drug trafficking crime, and possession of firearm with obliterated serial number.  His convictions stemmed from a federal sting operation that targeted Puerto Rican police officers.  “As part of that sting, Rivera participated, while armed, in a number of supposed ‘deals’ involving large amounts of fake cocaine in which agents of the Federal Bureau of Investigation (FBI) posed as both buyers and sellers.”

Rivera-Ruperto was sentenced to a 161-year and ten-month prison term, 130 years of which were for six convictions under 18 U.S.C. 924(c). Section 924(c) mandated that the defendant get 130-years imprisonment for his six 924(c) violations—five years for the first conviction, plus twenty-five years for each of the subsequent convictions—even though all but one of his convictions were imposed at the same trial and the defendant had no prior criminal history.

On appeal, Rivera-Ruperto argued that his sentence was grossly disproportionate as to be unconstitutional under the Eighth Amendment in as much as his 924(c) convictions required a life sentence.  Indeed, as Judge Brannon’s concurrence observes, Rivera-Ruperto received a de facto life “even though this case is replete with factors that—under a discretionary sentencing regime—would surely have been relevant to a judge’s individualized rather than arithmetical assessment of whether what Rivera did should not only be punished severely but also deprive him (absent a pardon or commutation) of any hope of ever enjoying freedom again.” Id. at 2.

Judge Barron’s en banc concurrence examines Eighth Amendment proportionality jurisprudence exhaustively.  Applying the Supreme Court’s three-criteria framework for evaluating whether the length of a prison term is impermissibly disproportionate to the seriousness of the offense, see Solem v. Helm , 463 U.S. 277, 292 (1983) (holding sentence of life imprisonment for uttering no acount check for $100 violated the Eighth Amendment), Judge Barron explained, “based on a consideration of those criteria, . . . I would find that Rivera’s mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment.”

But the opinion recognizes that “Solem . . . is not the last word” from the Supreme Court. Rather, Judge Barron concluded: “I am compelled by precedent—and, in particular, by the nearly three-decades old, three-Justice concurrence in Harmelin v. Michigan, 501 U.S. 957, 1006 (1991) (opinion of Kennedy, J.)—to uphold Rivera’s greater-than-life sentence.”  Hamerlin held the imposition of a mandatory life in prison sentence without possibility of parole, without any consideration of mitigating factors, such as the fact that the petitioner had no prior criminal history, was not cruel and unusual punishment under the Eighth Amendment.  Hamerlin did not produce a majority opinion and the Supreme Court has recognized that Justice Kennedy’s three-judge concurrence in Hamerlin is controlling.  See Graham v. Florida, 650 U.S. 48, 60 (2011).

After explaining why Hamerlin compelled affirmance of Rivera-Ruperto’s sentence, the concurrence addressed several reasons why the Supreme Court should “revisit the logic of the Hamerlin concurrence,” at least as it relates to 924(c) stacking.  The First Circuit decision ends with these concluding paragraphs:

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind. He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate. He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera—who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim—should have no hope of ever living free. And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.

Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem. In those intervening decades, virtually no jurisdiction has been willing to replicate that state’s experiment. In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it. And yet the Harmelin concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.

Federal Bureau of Prisons Claims Its Inmates Have Better Mental Health Than The General Population

Three weeks ago the Government Accountability Office released a report to congressional committees titled Federal Prisons: Information on Inmates with Serious Mental Illness and Strategies to Reduce Recidvisim.

The Sentinel just reviewed it.

The report notes that an estimated 44.7 million adults in the United States suffered from mental illness in 2016, with about 10.4 million suffering from a serious mental illness, such as schizophrenia, bipolar disorder, major depression, and severe post-traumatic stress disorder.  As of May 27, 2017, BOP incarcerated about 187,910—BOP considered only 7,831 (4.2 percent) of these inmates to have a serious mental health illness.

For comparison sake, there are approximately 245 million adults in the United States.   Using the same criteria that the BOP does, 21.6 million Americans have serious mental illness.

BOP defines “serious mental illness” in accordance with BOP Program Statement 5310.16, Treatment and Care of Inmates with Mental Ilness. (May 1, 2014).

The BOP’s estimate seems shockingly low given that another division of the DOJ, the Bureau of Justice Statistics, in a 2006 Report, estimated that the prevalence of mental health problems among jail and prison inmates is much higher, being approximately 20% in prison and 21% in local jails.

At 21.6 million adults with serious mental illness – using the BOP’s own criteria – 8.8% of the general population suffer from it, yet in the BOP the number of inmates suffering with one is less than half that percentage.

Apparently, one must is more likely to find sanity among federal inmates than in one’s favorite local dining establishment.

Here are some highlights from the GAO’s report:

About two-thirds of inmates with a serious mental illness in the Department of Justice’s (DOJ) Federal Bureau of Prisons (BOP) were incarcerated for four types of offenses—drug (23 percent), sex offenses (18 percent), weapons and explosives (17 percent), and robbery (8 percent)—as of May 27, 2017. GAO’s analysis found that BOP inmates with serious mental illness were incarcerated for sex offenses, robbery, and homicide/aggravated assault at about twice the rate of inmates without serious mental illness, and were incarcerated for drug and immigration offenses at about half or less the rate of inmates without serious mental illness. GAO also analyzed available data on three selected states’ inmate populations and the most common crimes committed by inmates with serious mental illness varied from state to state due to different law enforcement priorities, definitions of serious mental illness and methods of tracking categories of crime in their respective data systems.

BOP does not track costs related to incarcerating or providing mental health care services to inmates with serious mental illness, but BOP and selected states generally track these costs for all inmates. BOP does not track costs for inmates with serious mental illness in part because it does not track costs for individual inmates due to resource restrictions and the administrative burden such tracking would require. BOP does track costs associated with mental health care services system-wide and by institution. System-wide, for fiscal year 2016, BOP spent about $72 million on psychology services, $5.6 million on psychotropic drugs and $4.1 million on mental health care in residential reentry centers. . . .

DOJ, Department of Health and Human Service’s Substance Abuse and Mental Health Services Administration (SAMHSA), and criminal justice and mental health experts have developed a framework to reduce recidivism among adults with mental illness. The framework calls for correctional agencies to assess individuals’ recidivism risk and substance abuse and mental health needs and target treatment to those with the highest risk of reoffending. To help implement this framework, SAMHSA, in collaboration with DOJ and other experts, developed guidance for mental health, correctional, and community stakeholders on (1) assessing risk and clinical needs, (2) planning treatment in custody and upon reentry based on risks and needs, (3) identifying post-release services, and (4) coordinating with community-based providers to avoid gaps in care. BOP and the six states also identified strategies for reducing recidivism consistent with thisguidance, such as memoranda of understanding between correctional and mental health agencies to coordinate care. Further, GAO’s literature review found that programs that reduced recidivism among offenders with mental illness generally offered multiple support services, such as mental health and substance abuse treatment, case management, and housing assistance.

The Sentinel has been unable to identify any actual programs within the BOP which currently address anything like housing and case management (halfway house programs excluded as these are being severely cut back in 2018).

One inmate with previously diagnosed “serious mental health issues” presently in the BOP’s care, speaking on the condition of anonymity, relayed to the Sentinel that after several attempts to seek care, he was finally placed with an inexperienced intern who dismissed his ongoing and worsening problems with the suggestion that he take longer showers because, “…that always helps me unwind.”

He also reports that shortly after receiving that sage advice, the BOP instituted a nationwide policy electronically limiting shower duration to 7 minutes as a part of a deal to save money.

The Sentinel has confirmed this policy change.

The recently appointed Director of the BOP, General Mark Inch, could not be reached by the Sentinel for comment, but a review of the United States Army’s overall care of inmates during his tenure as Provost Marshal gives some hope that things will improve during his term.

1st Circuit Court Urges SCOTUS To Revisit Outdated Precedent

In United States v. Rivera-Ruperto (link is external), No. 12-2364, 2018 WL 1060694 (1st Cit. Feb. 27, 2018), the en banc First Circuit unanimously “urge[d] the Supreme Court to consider whether the Eighth Amendment permits . . .  the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.” Id. at 22.

The decision comes from a concurring opinion by Circuit Judge Barron, joined by all First Circuit Judges, to an order denying a petition for rehearing and rehearing en banc. Defendant Rivera-Ruperto was convicted in the United States District Court for the District of Puerto Rico, of conspiracy and attempted possession with intent to distribute controlled substance, possession of firearm in relation to drug trafficking crime, and possession of firearm with obliterated serial number.  His convictions stemmed from a federal sting operation that targeted Puerto Rican police officers.  “As part of that sting, Rivera participated, while armed, in a number of supposed ‘deals’ involving large amounts of fake cocaine in which agents of the Federal Bureau of Investigation (FBI) posed as both buyers and sellers.”

Rivera-Ruperto was sentenced to a 161-year and ten-month prison term, 130 years of which were for six convictions under 18 U.S.C. 924(c). Section 924(c) mandated that the defendant get 130-years imprisonment for his six 924(c) violations—five years for the first conviction, plus twenty-five years for each of the subsequent convictions—even though all but one of his convictions were imposed at the same trial and the defendant had no prior criminal history.

On appeal, Rivera-Ruperto argued that his sentence was grossly disproportionate as to be unconstitutional under the Eighth Amendment in as much as his 924(c) convictions required a life sentence.  Indeed, as Judge Brannon’s concurrence observes, Rivera-Ruperto received a de facto life “even though this case is replete with factors that—under a discretionary sentencing regime—would surely have been relevant to a judge’s individualized rather than arithmetical assessment of whether what Rivera did should not only be punished severely but also deprive him (absent a pardon or commutation) of any hope of ever enjoying freedom again.” Id. at 2.

Judge Barron’s en banc concurrence examines Eighth Amendment proportionality jurisprudence exhaustively.  Applying the Supreme Court’s three-criteria framework for evaluating whether the length of a prison term is impermissibly disproportionate to the seriousness of the offense, see Solem v. Helm , 463 U.S. 277, 292 (1983) (holding sentence of life imprisonment for uttering no acount check for $100 violated the Eighth Amendment), Judge Barron explained, “based on a consideration of those criteria, . . . I would find that Rivera’s mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment.”

But the opinion recognizes that “Solem . . . is not the last word” from the Supreme Court. Rather, Judge Barron concluded: “I am compelled by precedent—and, in particular, by the nearly three-decades old, three-Justice concurrence in Harmelin v. Michigan, 501 U.S. 957, 1006 (1991) (opinion of Kennedy, J.)—to uphold Rivera’s greater-than-life sentence.”  Hamerlin held the imposition of a mandatory life in prison sentence without possibility of parole, without any consideration of mitigating factors, such as the fact that the petitioner had no prior criminal history, was not cruel and unusual punishment under the Eighth Amendment.  Hamerlin did not produce a majority opinion and the Supreme Court has recognized that Justice Kennedy’s three-judge concurrence in Hamerlin is controlling.  See Graham v. Florida, 650 U.S. 48, 60 (2011).

Following the explanation for why Hamerlin compelled affirmance of Rivera-Ruperto’s sentence, the concurrence addressed several reasons why the Supreme Court should “revisit the logic of the Hamerlin concurrence,” at least as it relates to 924(c) stacking.  The First Circuit decision ends with these concluding paragraphs:

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind. He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate. He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera—who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim—should have no hope of ever living free. And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.

Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem. In those intervening decades, virtually no jurisdiction has been willing to replicate that state’s experiment. In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it. And yet the Harmelin concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.

SCOTUS To Hear Microsoft Case Arguments

On Tuesday, the United States Supreme Court will hear oral argument in United States v. Microsoft Corp., No. 17-2, which will decide “[w]hether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.”  The merits briefing is available on the Supreme Court’s website here (link is external).

The second argument scheduled for Tuesday is Lozman v. City of Rivera Beach, Florida, 17-21, which is a § 1983 case about “whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.”  Briefing on the merits is available at the Supreme Court’s website here (link is external).

SCOTUS Levels The Plea Playing Field

On February 21, 2018, in Class v. United States, No. 16-424(link is external), the Supreme Court addressed whether a guilty plea bars a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution. Class was charged with possessing firearms on the grounds of the United States Capitol, in violation of 40 U.S.C. § 5104(e)(1)(“An individual . . . may not carry . . . on the Grounds or in any of the Capitol Buildings a firearm”). In the district court, Class challenged the statute as violating the Second Amendment and also argued that he was denied fair notice that weapons were banned in the parking lot on the grounds of the Capitol. The district court rejected both claims. Pursuant to a written plea agreement, Class pled guilty, waiving several categories of rights. The agreement said nothing about the right to raise on direct appeal that the statute of conviction was unconstitutional. On appeal, Class repeated his constitutional claims. The appellate court held that Class could not raise his constitutional claims because, by pleading guilty, he had waived them.

In a 6 to 3 decision, the Supreme Court reversed and remanded, holding that a guilty plea does not inherently waive a constitutional challenge to the statute of conviction. The Court stated that the holding “flows directly” from the Court’s prior decisions. The Court rejected the dissent’s argument that its holding was inconsistent with Federal Rule of Criminal Procedure 11(a)(2), governing conditional pleas. The Court found that Rule 11(a)(2) does not indicate whether it sets forth the exclusive procedure for a defendant to preserve a constitutional claim following a guilty plea. Looking to the Advisory Committee Notes, the Rule’s drafters acknowledged that Rule 11(a)(2) “has no application” to certain kinds of constitutional objections. Finally, the Court did not distinguish between a facial constitutional challenge to the statute and an as-applied constitutional challenge to the statute.