Quantcast
Channel: Recent Criminal Law posts - Justia BlawgSearch.com
Viewing all 72282 articles
Browse latest View live

Miami Criminal Defense Lawyers Fight for Second Chances

$
0
0
How is it possible that a woman who admitted to popping a single prescription pill without permission could potentially be facing life in prison if she does it again? cuffs.jpg Our Miami criminal defense lawyers understand that the act was one in a long line of offenses dating back five years, when she notoriously stole money from a Girl Scout in Palm Beach County - earning her the nickname, "cookie monster." This latest entanglement is not so much about the pill as it is about the fact that she has reportedly violated her probation, once again. We know that not every one of the clients who walks through the door is innocent. Still, our goal is to ensure that not only will you be treated fairly throughout the proceedings, but that you receive the kind of representation that may allow you another chance. In this case, the 23-year-old defendant has been in and out of jail since she was 17 - when the now-infamous cookie cash swiping occurred. It was a $170 theft in 2008 and she had reportedly bragged that the crime in front of a Winn-Dixie store, saying it was "easy." She was eventually arrested and prosecuted. This might have been the end of her story, but then a year later, she and her boyfriend were arrested on charges of armed robbery and kidnapping for robbing a man of prescription drugs. For these alone, she would have faced years in prison. Armed robbery as defined in Florida Statute 812.13 is a first-degree felony, punishable by up to life in prison. So too is kidnapping, per Florida Statute 787.01. She later pleaded guilty and was given a term of probation. However, she twice violated the terms of that probation, which required her to remain under house arrest except when working or engaging in other activities without the permission of her probation officer. Twice, she left her home without getting prior permission. On another occasion, she failed to report to her probation officer at the appointed time. Her probation was extended and she received more community service. She began undergoing drug testing and taking college courses. She even once receive permission to fly to California for an interview with comedian Daniel Tosh. Things were progressing along fine, until this latest bout with consuming a prescription pill without permission. Now, the judge, approving a plea deal negotiated by her defense attorney, says this will be her last opportunity. Based on her 2009 convictions for the kidnapping and armed robbery charges, she could be sentenced to life in prison, even for a minor infraction. The plea deal requires the defendant to enter a residential drug treatment program for six months, followed by two years of probation that includes a nightly curfew and two years of drug testing. No matter what kind of criminal charges you are facing or what chance you're on, hiring a good criminal defense lawyer could be the deciding factor in your future.

BCS holds Community Advisory Board meeting

$
0
0
On Monday, April 29th at 5:30pm Bronx Community Solutions held a spring Community Advisory Board meeting. The meeting was attended by representatives of the Bronx District Attorney's Office as well as one of our service provider agencies. T.K. Singleton, Coordinator of Community Initiatives and myself presented to the Board an update on BCS operations. We focused on numerous upcoming community service-related events as well as an update on the Adolescent Diversion Program.Our upcoming community service events included a youth-focused event that took place to commemorate Law Day, which was Tuesday, April 30th. Details about that successful event will be revealed in the next blog post! We are also looking forward to two dedicated clean-up service events at the end of May which will be done in partnership with two different Bronx agencies. Stay tuned for more information.Our Adolescent Diversion Program (ADP) has been thriving since the opening of a dedicated ADP court part in the Bronx on Tuesdays and Thursdays, and the hiring of a dedicated Social Worker at BCS who works with this population. Changes have been made operationally, including improvements to our in-court and clinical screening instruments as well maintaining an ongoing partnership with the District Attorney's Office to collaborate on our work with clients who are being seen by BCS at the pre-plea stage. We will not hold a Community Advisory Board meeting in the summer, so our next one will take place in the Fall. We look forward to being able to share all of the BCS updates that will have occurred by then with our community partners.

Driver’s License Points: How to Avoid Them!

$
0
0
Fort Lauderdale Traffic Ticket LawyerIf you have gotten a traffic ticket in Fort Lauderdale, Miami, or anywhere in South Florida, you need to contact a Miami traffic ticket attorney or Fort Lauderdale traffic ticket attorney as soon as you can after receiving the ticket. The key to defending the ticket is to avoid getting points on your driving record. [...]Driver’s License Points: How to Avoid Them! is a post from: Galanter Law No related posts.

New big Human Rights Watch report assails placing juve sex offenders on registries

$
0
0
As reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto: Human...

Intriguing final (sentencing) chapter in landmark SCOTUS Fourth Amendment case

$
0
0
Via this post at The BLT, which is titled "Man in Landmark Supreme Court GPS Case Pleads Guilty," we find out today that Antoine Jones' success in convincing the Supreme Court to declare his warantless GPS tracking to be an...

Saint Petersburg man calls 911, requests Kool Aid and weed

$
0
0
kool aid.bmp A quick blurb in the Tampa Times online about how calling the emergency hotline for marijuana and Kool Aid tends to get a person in trouble... Bored last Sunday, Saint Pete resident Jarvis Sutton, 34, was in the mood for three things: drugs, food and drinks. While that itself is not a crime, what he did next landed him in hot water. The suspect proceeded to call 911 alomost 80 times throughout the day, requesting Kool Aid, "weed" and various food items. Eventually, police had enough. An officer wrote in his arrest report "The defendant admitted to calling 911 because he 'wanted Kool-Aid, burgers and weed to be delivered to him,' ". The suspect was arrested and charged with "misuse of the 911 system". To make matters more interesting, on the way to jail the suspect began chewing the metal cage in the police cruiser. Mr. Sutton has had several arrests in Pinellas for charges such as possession of marijuana, battery on a law enforcement officer, failure to appear, trespassing, and a violation of probation among others.

CNN/Time Poll: Cutback civil liberties to fight terror?

$
0
0
CNN/Time Poll: Cutback civil liberties to fight terror? [...] Read more!

Would Cameras Deter Bus Stop-Arm Violations?

$
0
0
When people began running red lights, city officials installed red light cameras to catch suspects and issue tickets without being on scene.  Could a similar system soon be in place to prevent bus-arm violations in Minnesota? While such measures have yet to be seriously considered in the state, bus cameras are becoming more popular across [...]The post Would Cameras Deter Bus Stop-Arm Violations? appeared first on The Appelman Law Firm Law Blog

Would Cameras Deter Bus Stop-Arm Violations?

$
0
0
When people began running red lights, city officials installed red light cameras to catch suspects and issue tickets without being on scene.  Could a similar system soon be in place to prevent bus-arm violations in Minnesota? While such measures have yet to be seriously considered in the state, bus cameras are becoming more popular across [...]The post Would Cameras Deter Bus Stop-Arm Violations? appeared first on The Appelman Law Firm Law Blog

Traffic diverted due to crash on Highway 39 near Aberdeen.

$
0
0
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- Idaho State Police District 5 5205 South 5th Ave. Pocatello, Idaho 83204-2299 (208) 236-6466 FAX: (208) 236-6068 For Immediate Release: 5/1/2013 2:20 p.m. Please direct questions to the District Office Idaho State Police is currently investigating a crash on State Highway 39 at the intersection of 1500 South Road, approximately two miles north of Aberdeen in Bingham County. The road is blocked at the scene of the crash and traffic is being diverted through the area. Updates will be released as they become available. -------------

Letter to Senators Chambliss and Isakson, May 1, 2013

$
0
0
Here is the text of a letter I have sent to the two senators from Georgia, my home state, concerning their recent votes to block gun control legislation.  I post it here in  hope that it might inspire others to … Continue reading →

Three More Sentenced in Eastern Idaho Meth Trafficking Case

$
0
0
POCATELLO – U.S. Attorney Wendy J. Olson announced today the sentencing of three more members of an Eastern Idaho drug trafficking organization. The defendants appeared this week before Chief U.S. District Judge B. Lynn Winmill at the federal courthouse in Pocatello.Ricardo Garcia Lopez, 36, of Idaho Falls, Idaho, was sentenced today to 235 months in prison followed by five years of supervised release for conspiracy to possess with intent to distribute in excess of 50 grams of methamphetamine. Lopez was also ordered to forfeit a firearm and pay a $1,000 fine. He pleaded guilty to the charge on December 19, 2012.On Monday, Alberto Abarca, 23, of Idaho Falls, Idaho, was sentenced to 130 months in prison followed by five years of supervised release for possession with intent to distribute methamphetamine. He pleaded guilty to the charge on January 23.Ana Rosa Valdez-Ceja, 26, of Shelley, Idaho, was sentenced yesterday to two years’ probation for money laundering. She pleaded guilty to the charge on January 23.According to plea agreements filed in the case, from June 2005 through January 2012, a group of individuals centered around co-defendant Samuel Nevarez-Ayon, a Mexican national, entered into a conspiracy to possess and distribute in excess of 50 grams of actual methamphetamine in the Idaho Falls area. In furtherance of the conspiracy, Nevarez-Ayon directed activities of various co-defendants, including Lopez, Abarca and Valdez-Ceja. In addition to distributing methamphetamine, several defendants laundered proceeds from the sale of the methamphetamine and made false loan applications to local banks to further the laundering of money. During the course of the conspiracy, the defendants obtained in excess of $500,000 from the distribution of methamphetamine.In addition to the defendants sentenced this week, four co-defendants were sentenced in March and April to serve federal prison sentences for conspiracy to possess with intent to distribute methamphetamine: Rafael Ignacio Guerrero, a Mexican national, was sentenced to 42 months; Antonio Javier Mendoza, of Shelley, Idaho, to 96 months; Fabiola Esmerelda Marin Castro, a Mexican national, to 36 months; and Daniel Quiroz, a Mexican national, to 78 months. Abel Garcia, of Idaho Falls, Idaho, was sentenced in March 2013 to one month in prison for making a false statement to a bank.The remaining defendants, Nevarez-Ayon, Juan Ortiz, Jr., Everado Tapia-Torres, Jr., Nicholas Levi Olsen, and Isidoro David Herrera, pleaded guilty to related charges and are awaiting sentencing later this month. Guadalupe Meraz is a fugitive.The charges are the result of a nine-month investigation by the Organized Crime Drug Enforcement Task Force (OCDETF), which included the Idaho State Police, Bonneville County Sheriff's Office, Idaho Falls Police Department, Madison County Sheriff's Office, Rexburg Police Department, Bingham County Sheriff’s Office, Fremont County Sheriff’s Office, Federal Bureau of Investigation (FBI), U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI), Internal Revenue Service-Criminal Investigation, and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Other federal agencies participating in the OCDETF program include the Drug Enforcement Administration and the U.S. Marshals Service.The OCDETF program is a federal multi-agency, multi-jurisdictional task force that supplies supplemental federal funding to federal and state agencies involved in the identification, investigation, and prosecution of major drug trafficking organizations.

Moncrieffe v Holder: From State Felony to Federal Misdemeanor

$
0
0
 Matthew Kenwrick via flickrIn Moncrieffe v. Holder, the Supreme Court reversed the deportation order for a Jamaican born legal permanent resident. Adrian Moncrieffe pled guilty in a Georgia court to possession with intent to distribute 1.3 g of marijuana. Federal authorities determined that this was an "aggravated felony"and deportation was therefore mandatory. The 7-2 majority held that, where there is no proof of remuneration and only a small amount of marijuana involved the crime is not an aggravated felony for immigration purposes. Moncrieffe, who was deported to Jamaica and separated from his wife and children, will likely be able to return to this country. The outcome seems right, but the law that got us here is awfully strange. What is an "Aggravated Felony"?Non citizens convicted of Aggravated Felonies are deportable and also, as provided by 8 U. S. C. §1229b(a)(3), are ineligible for discretionary relief. The immigration judge and the Attorney general have no choice, the person simply must be deported. Obviously, the analysis turns on how that term is defined. Here are some of the important terms and the statutory definitions:Aggravated Felony: 8 U. S. C. §1101(a)(43), defines Aggravated felony to include: "a drug trafficking crime." The section further provides: "The term applies to an offense described in this paragraph whether in violation of Federal or State law."A drug trafficking crime: is defined by 18 U.S.C. 924(c)(2) to include "any felony punishable under the Controlled Substances Act" (CSA). Prohibited acts are listed under 21 USC § 841.A Felony: is defined by 18 U.S.C. §3559 as an offense where the maximum prison sentence is more than one year. Moncrieffe's Marijuana CrimeThe offense Moncrieffe plead guilty to was a violation of Ga. Code Ann. §16–13–30(j)(1) and it is most certainly a state felony punishable by a minimum of 1 year and a maximum of 5. But under a law that allows more lenient treatment for first time offenders, the Georgia court withheld entering a conviction and required Moncrieffe to complete 5 years of probation after which the case would be dismissed and expunged from his record.21 USC § 841(a) makes possession with intent to distribute a controlled substance a crime. If the substance involved is 50 kilograms or less of marijuana, the crime is is punishable by up to 5 years in prison under §841(b)(1)(D).So it seems pretty clear that Adrian Moncrieffe plead guilty to a Georgia State felony, which was a drug trafficking crime punishable under the CSA, constituting illicit trafficking in a controlled substance and an "Aggravated Felony." Why then did the Supreme Court reverse the immigration judge, the Board of Immigration Appeals and the Eleventh Circuit Court of Appeals, all of whom agreed that Moncrieffe was convicted of an Aggravated Felony? When is a Felony Not a Felony?Aggravated felony includes "any felony punishable under the Controlled Substances Act" and everything turns on those few words from 18 U.S.C §924(c)(2). That language has been construed to mean that an immigration court must determine whether the state crime would have necessarily been charged as a felony and sentenced as a felony under the Controlled Substances Act. Lucky for Moncrieffe there is a provision in the CSA at 21 U. S. C. §841(b)(4) which reads:Notwithstanding paragraph (1)(D) of this subsection [providing a 5 year max for marijuana distribution], any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607of title 18.Moncrieffe had no prior drug convictions and 21 U. S. C. §844 provides for federal sentences of less that 1 year for first time offenders. 18 U.S.C §3607 allows for dismissal and expungement if a drug possessor sentenced under §844 completes probation with no violations.The Majority found that, since a Federal court might have treated this conduct as punishable by less than one year in prison, it was not necessarily a felony and did not qualify as an aggravated felony under the INA. Slip p. 9. As stated in the holding: "If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA." Slip p. 22.Other Notable Issues1. Georgia did Not Enter a Conviction or Impose Sentence The INA requieres a "conviction" for an aggravated felony and Moncrieffe's Georgia case was resolved in a way that not involve a conviction under state law. Unfortunately, the INA 8 U. S. C. §1101(a)(48)(A) defines "conviction" like this:The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.Of course, felons can't possess guns either, but it is interesting to note for purposes of federal gun prohibitions there is a very different definition of "conviction." 18 USC § 921(20) defers to the state court definition and makes an exception for expunged crimes.What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter... So for purposes of federal gun law, the resolution of Moncrieffe's case would not count as a conviction, even though it does for immigration purposes.2. Moncrieffe Wasn't Advised of Immigration ConsequencesIt appears that Moncrieffe did have an attorney present for his Georgia plea hearing but that attorney did not advise him that a guilty plea would trigger removal proceedings. The 2010 Supreme Court decision, Padilla v. Kentucky requires that an attorney advise their client of immigration consequences of a plea and provides that failing to give correct advice is ineffective assistance of counsel. That could have been grounds for reversing the conviction except the Supreme Court decided Chaidez v. United States earlier this term and held that Padilla is not retroactive. Since Moncrieffe's plea occurred before Padilla, the ineffective assistance was no grounds for relief.3. Apprendi, Shades of Alleyne?The opinion has some discussion of "sentencing factors" vs "elements of crimes" and, while the distinction was not central to the court holding here, this issue will feature prominently in the decision expected in Alleyne v. United States. In Moncrieffe the government argued that, while the the weight of the drugs and whether money changed hands might result in misdemeanor federal sentencing, these issues are only sentencing factors, not elements of the crime, and should therefor not be considered as part of the aggravated felony analysis.The majority rejected this argument recognizing that, whatever you call these facts, they effectively change the class of crime and so must be considered. Maybe this signals some willingness to break down that element / sentencing factor distinction. If that reasoning is applied in Alleyne, the Supreme Court might decide that such sentencing factors must be presented to the jury for determination beyond all reasonable doubt.

Let the Games Begin: Legal Online Poker Starts Up in Nevada

$
0
0
April 30 was an historic day for online poker players in the United States. Just a bit more than two years after the indictment and civil cases that were termed “Black Friday” shut down the industry, Ultimate Poker became the first live real-money online poker site in the United States after Black Friday. Nevada became [...]

President Obama named Rep. Melvin Watt (D-North Carolina), to head the Federal Housing Finance Agency

$
0
0
This Blog was written by whistleblower Attorney Tony Munter The news, or rather the reported leak today is clear, The White House wants to nominate long time congressman Mel Watt (D North Carolina) to head the Federal Housing Finance Agency (FHFA). The FHFA is the agency charged with watching over the mortgage giants Fannie Mae and Freddie Mac. In as much as those two federally financed giants also finance most of the mortgages in the United States and also because they also owe the government something like $100 Billion, this is a big job.

Recently Freed New Yorker Discusses Effects of Prison Life

$
0
0
A New York man who spent more than two decades behind bars for a murder he did not commit, describes the effects of prison and the struggle to adapt to the modern world two months after his release in an interview with the New York Post. David Ranta was convicted of killing a beloved Brooklyn Rabbi in a foiled 1990 robbery and was cleared in March. "I feel like I've been dropped onto another planet - everything has changed, and everything that I've known is gone,'' said Ranta. ... "The first time I ate at a restaurant and used their restroom, I couldn't figure out how to use the sink; it was one of those automatic motion-sensor faucets,'' Ranta told The Post. "I had to get someone to show me what to do, and I felt embarrassed." Out of prison for just one day, Ranta's celebration of freedom came to a halt when he suffered a heart attack. "The doctors have said that the stress of being innocent and imprisoned for decades, combined with not being able to eat a fresh fruit or vegetable for 22 years, can do that to a heart,'' Ranta said. Today, Ranta says he is doing much better and will file a lawsuit against the city claiming malicious prosecution and wrongful imprisonment. He is looking toward the future. "It's going to take a long time for me to feel normal again, if I even remember what normal is,'' he said. ... "Once I'm fully on my feet, I'd like to work with other falsely convicted individuals to help them transition into society," he said. "Unfortunately, there are a lot of people like me out there." Read the full article. Read more about Ranta's case.

SLC Criminal Defense Lawyer | State v. Ali

$
0
0
At Arnold & Wadsworth our criminal defense lawyers offer a free consultation concerning all criminal cases whether in Salt Lake City or any other area in Utah. The criminal defense lawyers at Arnold & Wadsworth have the experience you need in order to be successful and protect your rights. Your rights and life are too important for [...]

Death Row Inmate Deserves DNA Testing Before May 7 Execution

$
0
0
By Barry Scheck and Peter Neufeld, Innocence Project Co-Directors (Originally published by the Clarion Ledger.) Last week the Mississippi Supreme Court in a 5-4 decision denied Willie Manning the opportunity to do DNA testing that could prove he is innocent of the crime that landed him on death row. Tragically, Manning is scheduled to be executed on Thursday and may never get the opportunity to do the testing that could prove whether he is innocent as he has always maintained. We urge Gov. Phil Bryant to issue a stay so the testing can be done. While people can differ on whether the death penalty is an appropriate form of punishment, nearly everyone would agree that it should be used only in those cases where we are certain of guilt. DNA testing could provide that certainty or prove, as Manning insists, that he is innocent. It could also, as the Mississippi Supreme Court judges noted in their dissent, provide the identity of alleged second perpetrator who has never been caught. Eighteen people who served time on death row have been exonerated by DNA evidence since it became available two decades ago. One of those men, Kennedy Brewer, was convicted in Mississippi. Like Manning, Brewer was convicted based on circumstantial evidence and unvalidated forensic science. In Brewer's case, the prosecution relied on widely discredited bite mark testimony, and in Manning's case the prosecution presented hair microscopy, which because of its unreliability will be subject to a recently announced FBI nationwide review. The DNA evidence in Brewer's case proved his innocence and identified the real perpetrator who confessed to the crime and another murder for which someone had been wrongly convicted and sentenced to life. Fortunately, that man, Levon Brooks, was also exonerated. We don't know what the DNA evidence will ultimately prove in Manning's case, but there is a good chance that it will be highly probative - and much more reliable than the kind of evidence that was used to convict him of the 1992 murders of Pamela Tiffany Miller and Jon Stephan Steckler. The two students were kidnapped after leaving a party at Mississippi State University and were driven to a remote location where Miller was raped and both were shot to death. At trial, there was no physical evidence linking Manning to the crime. The prosecution relied on circumstantial evidence. At one point the Mississippi Supreme Court overturned his conviction because Manning's lawyers weren't allowed to fully cross-examine the informant, but the court later reconsidered its decision and let the conviction stand. Since 1994, Manning has been seeking DNA testing of the rape kit, fingernail scrapings that were recovered from both victims and hairs recovered from the scene. Rape kits and fingernail scrapings are routinely tested today because the testing can prove with near certainty who committed the crime. Before DNA evidence, prosecutors would often rely on hair microscopy to place a defendant at the scene even though the practice was never scientifically validated. After DNA evidence exonerated three people who had been wrongly convicted in part based on this type of evidence, the FBI announced this year that it would undertake a massive review of all cases in which one of its analysts testified about this type of evidence. Given that the FBI performed the hair microscopy in this case, it would seem that Manning's case should be subject to this review - if he isn't put to death first. As the dissenters noted, given that it is alleged that two perpetrators committed the crime, it's puzzling that the district attorney is so resistant to testing. The Mississippi Supreme Court has said that the DNA testing is unnecessary because there is other overwhelming evidence of guilt. But appeals courts were also wrong in the cases of all 306 DNA exonerations, including the 18 who served time on death row. DNA testing has the potential to tell us once and for all who committed these two tragic murders, and that's something we all should want.

Forced Blood Draws Now Require a Warrant in DUI Cases

$
0
0
Up until last week, the law allowed police officers to forcibly draw blood from any person suspected of driving under the influence, if that person refused to voluntarily submit to a chemical test of their blood, breath or urine. The U.S. Supreme Court has now determined that “forced blood draw” is a violation of the Fourth Amendment warrant requirement. A 1966 U.S. Supreme Court decision made an exception to the Fourth Amendment warrant requirement in DUI related forced blood draws. It basically stated that no warrant is required to forcibly draw a person’s blood if the arresting officer believes that the person is driving under the influence. The rationale was that blood-alcohol evidence is time sensitive because alcohol dissipates quickly in the bloodstream, and the time it would take to obtain a warrant would affect the evidence, the evidence being the blood. On April 17, 2013, the U.S. Supreme Court limited the 1966 decision to say basically that police officers must follow the Fourth Amendment requirement to obtain a warrant before forcibly drawing blood from a DUI suspect. It further went on to say that there is no automatic exception to the warrant requirement as stated in the 1966 case and that quick dissipation does not warrant the exception to the Fourth Amendment. However, it did provide that not every situation would require a warrant and that it should be determined case by case, after taking into consideration all of the circumstances in any individual case. So what this means is that, when someone refuses to submit to a test of their breath, blood or urine, the officer must first obtain a warrant to draw their blood, unless there is an urgent reason not to. An example of a situation where a warrant may not be required might be something like this: If you are involved in an accident and are injured, the time it takes for the officers to investigate the accident and the emergency personnel to stabilize and transport you to the hospital, would effect the evidence, meaning the blood. The more time that lapses, the lower your blood-alcohol level goes. So, if it is two hours before the officer arrives at the hospital to take your statement, and at that time believes your are under the influence, the officer may decide that the time it would take to obtain a warrant would affect the evidence and thus, require you to give your blood. So now, when a DUI suspect refuses to provide a blood, breath or urine sample, at least in some cases, the officer will be required to obtain a warrant before they can proceed to force a blood draw.

DOJ’s Inspector General Finds The BOP’s Compassionate Release Program “Poorly Managed” And “Implemented Inconsistently”

$
0
0
Just over a year ago, we posted a video of an interview with our client and former federal prisoner, Phillip Smith, who had been denied access to the sentence reduction program known as compassionate release under 18 U.S.C. § 3582(c). Phillip had leukemia that was not responding to treatment, but the Bureau of Prisons (BOP) refused to allow the judge to determine whether these “extraordinary and compelling reasons" (in the language of the statute) warranted a sentence reduction. After litigation regarding the unlawfulness of the BOP’s administration of the statute, the BOP filed a motion that resulted in a sentence reduction to time served. Phillip's interview and links to the litigation are available here. Shortly after the interview, Phillip died at home. Last November, Human Rights Watch and Families Against Mandatory Minimums issued a joint report called The Answer Is No: Too Little Compassion In US Federal Prisons. The report documented the BOP’s failure to provide access to courts as broad as the statutory authorization and the costs – human and fiscal – from the failure to fully implement the ameliorative statute.Now the Department of Justice’s Office of the Inspector General has issued a report entitled The Federal Bureau of Prisons’ Compassionate Release Program. The OIG report found that the existing program “has been poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided.” On the other hand, the OIG stated that an effectively managed compassionate release program would result in significant cost savings to the BOP and help to address the problems resulting from over-capacity populations in federal prisons.The OIG makes a number of recommendations. Most importantly, the OIG believes that standards should be articulated including eligibility based on both medical and non-medical “extraordinary and compelling” reasons, and, where life expectancy is at issue, eligibility for inmates with a life expectancy of up to 18 months. Although the BOP apparently agrees that an expanded rule would be appropriate, the agency did not share its new written memorandum and indicated that implementation of new rules could take years. If the BOP fails to incorporate the Sentencing Commission’s rule (U.S.S.G. § 1B1.13 and commentary), the BOP’s more restrictive rule will continue to be subject to legal challenge because Congress explicitly delegated to the Commission – not the BOP – the job of defining “extraordinary and compelling reasons” in 18 U.S.C. § 994(t). Two other recommendations, if put into effect, could make a big difference. The OIG recommended that expedited time-frames should be adopted for processing claims. This change would be critical for increasing the time out of custody for beneficiaries of the program. It would also put a dent in the horrible statistic that, of the mere 208 prisoner requests considered by the Central Office over a six year period, 28 of the inmates died before a decision was made. The OIG also recommended that the BOP effectively communicate the existence of the program to the inmate population. Currently, the vast majority of institutions do not include information about the program in their inmate handbooks, and those that do contain limited and inconsistent information. The BOP agreed that formal procedures to inform prisoners about the compassionate release program should be adopted.There’s a big lurking litigation issue that is documented but not addressed in the OIG report. In Table 4, the OIG report states that of the 38 requests for compassionate release that were denied in the six years between 2006 and 2011, 22 were denied based on the “seriousness of the offense or criminal history.” That’s 58.7% of the denials. But the BOP is usurping judicial authority under the statute when it refuses to file a motion on that ground. Under § 3582(c), the BOP files a motion with the sentencing court based on “extraordinary and compelling reasons.” The sentencing court then decides whether to grant the motion “after considering the factors set forth in section 3553(a) to the extent that they are applicable.” The seriousness of the offense or criminal history are classic considerations under 18 U.S.C. § 3553(a)(1): “the nature and circumstances of the offense and the history and characteristics of the defendant.” When the BOP arrogates to itself the role of deciding § 3553(a) factors, the agency violates both the statute and the constitutional separation of powers. Once there is a determination of “extraordinary and compelling reasons,” the BOP's only function under § 3582(c) is to file a motion with the sentencing court. The determination of that motion, considering § 3582(c) factors, is a judicial function, not an executive branch decision. As the Supreme Court in Setser stated about the BOP’s claim of authority to make concurrent and consecutive decisions:"[T]he Bureau is not charged with applying [the sentencing factors of] § 3553(a) . . . . It is much more natural for a judge to apply the § 3553(a) factors in making all concurrent-vs.-consecutive decisions, than it is for some such decisions to be made by a judge . . . and others by the Bureau of Prisons . . . .""[S]entencing [should] not be left to employees of the same Department of Justice that conducts the prosecution." When the BOP refused to file a compassionate release motion for Phillip Smith, the BOP claimed his criminal history warranted denial. The sentencing judge, properly entrusted with making the § 3553(a) determination, readily signed the motion reducing Phillip’s sentence to time served. We can hope the BOP will respond quickly and effectively to the OIG’s recommendations. In the meantime, we need to remain vigilant – in spotting issues, advocating with the BOP, and litigating where necessary – for our clients who, while serving their sentences, suffer medical and non-medical “extraordinary and compelling reasons” that warrant a reduction of their terms of imprisonment.Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
Viewing all 72282 articles
Browse latest View live




Latest Images