Tag Archives: Criminal Justice

Attorney General Sessions Tells Prosecutors To Kill Drug Dealers

On March 21, United States Attorney General Jefferson B. Sessions issued a short Memo to U.S. Attorneys on the Use of Capital Punishment in Drug-Related Prosecutions. The full text of the memo states:

The opioid epidemic has inflicted an unprecedented toll of addiction, suffering, and death on communities throughout our nation. Drug overdoses, including overdoses caused by the lethal substance fentanyl and its analogues, killed more than 64,000 Americans in 2016 and now rank as the leading cause of death for Americans under 50. In the face of all of this death, we cannot continue with business as usual.

Drug traffickers, transnational criminal organizations, and violent street gangs all contribute substantially to this scourge. To combat this deadly epidemic, federal prosecutors must consider every lawful tool at their disposal. This includes designating an opioid coordinator in every district, fully utilizing the data analysis of the Opioid Fraud and Abuse Detection Unit, as well as using criminal and civil remedies available under federal law to hold opioid manufacturers and distributors accountable for unlawful practices.

In addition, this should also include the pursuit of capital punishment in appropriate cases. Congress has passed several statutes that provide the Department with the ability to seek capital punishment for certain drug-related crimes. Among these are statutes that punish certain racketeering activities (18 U.S.C. § 1959); the use of a firearm resulting in death during a drug trafficking crime (18 U.S.C. § 924(j)); murder in furtherance of a continuing criminal enterprise (21 U.S.C. § 848(e)); and dealing in extremely large quantities of drugs (18 U.S.C. § 3591(b)(1)). I strongly encourage federal prosecutors to use these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation.

Seeking the federal death penalty against drug traffickers in “appropriate cases” where a death results would not be new.  Of the 61 federal defendants on death row, more than a dozen of them committed drug related offenses resulting in death, according to the Death Penalty Information Center.  Indeed, one of the three federal inmates executed in the modern era was Juan Garza, a marijuana distributer who was executed in 2001 for the murder of three other drug traffickers in Texas.

But seeking the death penalty for non-homicide drug trafficking offenses would be new and raise constitutional issues.  See, e.g., Kennedy v. Louisiana, 554 U.S. 407, as modified (Oct. 1, 2008), opinion modified on denial of reh’g, 554 U.S. 945 (2008) (holding the Eighth Amendment prohibits the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim); id. at 44 –47 (“The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.”).

SCOTUS Holds That Defendant Must Be Aware Of A Particular Investigation Or Audit To Be Convicted Under 26 U.S.C. § 7212(a)

Section 7212(a) of the Internal Revenue Code makes it a felony “corruptly or by force” to “endeavo[r] to obstruct or imped[e] the due administration of this title.” 26 U.S.C. § 7212(a). The question the Supreme Court faced was the “breadth of that statutory phrase.” Specifically, does the due administration of the Tax Code cover all routine administrative procedures, such as the ordinary processing of income tax returns? Or, does the phrase refer “to specific interference with targeted governmental tax-related proceedings, such as a particular investigation or audit[?]”

In a 7-2 decision in Marinello v. United States, No. 16-1144, the Supreme Court held to convict a defendant under § 7212(a), the federal government must prove the defendant was aware of a pending tax-related proceeding, such as a particular investigation or audit, or could reasonably foresee that such a proceeding would commence.

Four Justices Question The Constitutionality of Arizona’s Death Penalty Scheme

Today the United States Supreme Court denied certiorari review in Hidalgo v. Arizona, No. 17-251. Hidalgo asked the court to consider two important Eighth Amendment questions: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

The case was distributed for conference ten times before certiorari was denied.  Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, issued a strong statement respecting the denial of certiorari as to the firstquestion presented—whether Arizona’s statutory sentencing scheme satisfies the Eighth Amendment’s “narrowing requirement” for determining who is “eligible” for the death penalty. The justices did not comment about the second and broader question about whether the death penalty in all cases violates the Eighth Amendment.

It is well-settled, “[t]o pass constitutional muster, a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’” Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U. S. 862, 877 (1983)).  As Justice Breyer explains in Hidalgo, “[t]o satisfy the ‘narrowing requirement,” a state legislature  must adopt ‘statutory factors which determine death eligibility’ and thereby “limit the class of murders to which the death penalty may be applied.”  (quotation marks omitted). Hidalgo’s certiorari petition argued that Arizona’s scheme “utterly fails to do that” because “[t]he number of statutory aggravators has proliferated such that ‘virtually every person—around 99%—convicted of first-degree murder is eligible for the death penalty.” The Arizona trial court denied Hidalgo’s request for an evidentiary hearing to “establish through witnesses, expert testimony, and documentary evidence that [Arizona’s] statutory aggravating circumstances … apply to virtually every first-degree murder case in the State.”

The Arizona Supreme Court affirmed the trial court but did not dispute Hidalgo’s evidence.  “Despite assuming that the aggravating circumstances fail to materially narrow the class of death-eligible first-degree murder defendants, the Arizona Supreme Court nevertheless concluded that the State’s death penalty system meets the Constitution’s narrowing requirement.  It said that the petitioner was ‘mistaken … insofar as he focuses only on the legislatively defined aggravating circumstances’ because use of those circumstances ‘is not the only way in which Arizona’s sentencing scheme narrows the class of persons eligible for the death penalty.’” The Arizona Supreme Court identified five factors not related to the legislative definition of aggravating circumstances.

Justice Breyer’s opinion examines and rejects all five factors as either previously having been rejected by Supreme Court precedent or not showing “the necessary legislative narrowing that [its] precedent requires.”  For example, with respect to the Arizona Supreme Court’s reliance on prosecutorial discretion to perform the narrowing requirement, Justice Breyer says “that reasoning cannot be squared with this Court’s precedent—precedent that insists that States perform the ‘constitutionally necessary’ narrowing function ‘at the stage of legislative definition.” (quotation marks omitted). Although the four justices concluded that the Arizona Supreme Court “misapplied” Supreme Court precedent, and that Hidalgo’s evidence “points to a possible constitutional problem,” they agreed that certiorari should be denied.  That’s because the record in Hidalgo’s case (through no fault of his own) came to the Court “largely unexamined by experts and the courts below in the first instance.” In Breyer’s view, “the issue presented in [Hildago’s] petition will be better suited for certiorari with such a record.”

New Report On Firearms Offense Sentences Released

The United States Sentencing Commission issued a report on March 15th titled Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System.  This is the third publication in the Commission’s series on mandatory minimum penalties, including the 2017 Mandatory Minimum Overview and the 2017 Drug Mandatory Minimum Report.

Yesterday’s Mandatory Minimum Firearms report uses fiscal year 2016 data and focuses on firearms offenses, the second most common federal offenses carrying mandatory minimums after drug offenses.  The report analyzes two statutes carrying minimum mandatory penalties: (1) 18 U.S.C. § 924(c) (relating to using, carrying or possessing firearms in furtherance of a drug trafficking or crime of violence); and (2) 18 U.S.C. 924(e), the Armed Career Criminal Act.  The publication also addresses the impact of these statutes on the Bureau of Prison’s prisoner population.

Here are some highlights from the 81-page report:

1. Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.

2. Offenders charged with and convicted of multiple counts under section 924(c)received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.

3. In addition, other charging and plea decisions also play a significant role in theapplication and impact of firearms mandatory minimum penalties.

4. Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.

5. While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.

6. Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.

 

 

Federal Courts Beef Over Definition Of “Violent Crime”

A forthcoming University of Miami Law Review article titled A Touchy Subject: The Eleventh Circuit’s Tug-of-War Over What Constitutes Violent Physical Force, examines internal disagreements within the Eleventh Circuit, and that Court’s conflicts with other circuits, about the proper application of the Armed Career Criminal Act’s elements clause after United States v. Johnson, 135 S. Ct. 2551 (2015) (Johnson II). The article is written by Assistant Federal Defenders Conrad Kahn and Danli Song from the Middle District of Florida. The abstract of the article, available for download on SSRN here, states:

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA). If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.

Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause. But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA’s elements clause. This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong—specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause. This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.