For the week of July 26, 2010 (cross-posted from the Central District Federal Public Defender blog).
Crack Sentencing Reform Passes. After almost 25 years of 100-to-1 crack-to-powder sentencing, Congress has passed the Fair Sentencing Act of 2010, which would reduce to 18-to-1 the ratio of the threshold quantities triggering the mandatory minimums, and completely eliminate the five-year mandatory minimum for simple possession of crack cocaine. President Obama has vowed to sign the legislation. NPR has more on the story, here (featuring Federal Public Defender Michael Nachmanoff (E.D.Va.)). Naturally, so do many others.
Sauce for the Gander? When District Judge James Holderman excluded fingerprint evidence and accused government attorneys in the case of lying, U.S. Attorney General Patrick Fitzgerald complained to the Seventh Circuit. Sua sponte, the Circuit removed the judge from the case. The opinion is here.
New ICE Breaker. In case you weren't aware, ICE now has an online detainee locator, which allows online searching for detainees by name, county and date of birth, or A-Number.
Heavily Leveraging Skilling. "Skilling's reaffirmation of the doctrine of constitutional avoidance is a good reminder that we should be using this defendant-friendly rule of construction," explains Steve Sady.
Is Padilla Retroactive or Not? Noelleen Walder limns some of the points and authorities running in either direction.
The Week in Sausage Making. Bill's presented to the President include the Fair Sentencing Act of 2010 (would reduce sentencing disparity between powder and "crack" cocaine offenses) and Cell Phone Contraband Act of 2010 (would prohibit possession or use by federal prisoners of cell phones and similar devices). Measures introduced include H.R. 5854 (would prohibit prisoner access to Social Security account numbers) and S. 3651 (would amend federal stalking offense).
Top of the Ninth - 9th Cir. decisions released during the week.
U.S. v. Rosas
(18 U.S.C. § 3146 failure to appear qualifies for enhancement under §
3147) (enhancement for both § 3C1.1 and § 3C1.3 is not impermissible
double counting and does not violate double jeopardy) (use of
defendant's failure to attend original sentencing hearing as ground for
denying § 3E1.1 reduction is not unconstitutional).
Afriyie v. Holder
(immigration) (any reasonable factfinder would be compelled to conclude
that Ghanian police were unable or unwilling to protect petitioner
seeking protection under the Convention Against Torture).
Porter v. Ollison (habeas) (remanding in light of Holland v. Florida for record development on whether counsel's egregious conduct prevented petitioner from filing timely § 2254 petition).
U.S. v. Gallegos
(imposition of partially concurrent and partially consecutive sentence
did not violate 18 U.S.C. § 3584) (upward adjustment for obstruction
and refusal to adjust downward for acceptance of responsibility did not
amount to impermissible double counting).
U.S. v. Forrester
(superseding opinion) (defendant was not entitled to defense that
ecstasy should be categorized as Schedule III rather than Schedule I
controlled substance) (district court's failure to strike 21 U.S.C. §
851 enhancement after misadvisement of potential penalties relied upon
in signing plea, if error, was harmless) (a defendant does not have a
right to redacted portions of wiretap application if government is able
to defend warrant without relying on redacted portions) (resentencing
was required where temporary amendment to § 2D1.1 increasing
penalty for ecstasy took effect after stipulated conspiracy start date
but where there was no stipulation as to end date).
Hebbe v. Pliler
(prisoners' rights) (reversing dismissal of pro se petition alleging
violations right to access prison law library and Eighth Amendment).
SCOTUS Focus. The Supreme Court continues in recess until October 4.
Short Circuits - other persuasive authority.
U.S. v. Cotto-Lopez
(2d Cir.) (summary order) (remanding for resentencing where district
court failed to address defendant's substantial argument that district
court should make explicit finding as to defendant's role).
U.S. v. McGee
(7th Cir.) (Easterbrook, J.) (recurrent introduction by government of
hearsay narration of defendant's guilt may lead to disciplinary action
against lawyers involved).
U.S. v. Woody,* 2010 WL 2884918 (D.Neb) (deconstructing methamphetamine guideline).
Steele v. Ayers* (E.D.Cal) (habeas) (California Supreme Court's reliance on contemporaneous objection rule does not bar federal habeas review).
Jackson v. Norris* (E.D.Ark.)
(habeas) (state rape shield law effectively precluding evidence of
sexual history relevant to victim-accuser's motive to lie violated
right to present a defense).
For the Bookworms - New books and scholarly articles of note.
· "Coerced
Informants and Thirteenth Amendment Limitations on the Police-Informant
Relationship," Michael Rich, Santa Clara L. Rev. (forthcoming) (SSRN)
(argues that by compelling informants to work under threat of more
severe punishment, government violates Thirteenth Amendment prohibition
on involuntary servitude).
· "Government Dragnets," Christopher Slobogin, 73 Law & Contemp. Probs. (forthcoming, 2010) (SSRN)
(sets out an analytical framework for assessing the legality of
dragnets that would generally require greater scrutiny than courts have
traditionally applied).
· "The Reptile Brain, Mammal Heart and (Sometimes Perplexing) Mind of the Juror: Toward a Triune Trial Strategy," Jill P. Homquist, 22-4 The Jury Expert (2010)
· "May Minors Be Retributively Punished after Panetti (and Graham)?," Dan Markel, 23 Fed. Sent'g Rep. (forthcoming, 2010) (SSRN)
(argues that under the rationales of the titular decisions, the Eighth
Amendment forbids retributive punishment against minors).
· "A Judge's Guide to Neuroscience: A Concise Introduction," Floyd E. Bloom et al., published by the Law and Neuroscience Project & UCSB's SAGE Center (2010) (pdf) (comprises several articles focusing on the legal implications of various recent developments in neuroscience).
· Snitching: Criminal Informants and the Erosion of American Justice, Alexandra Natapoff, NYU Press (2009) (Amazon) (provides a comprehensive analysis of the powerful and problematic practice).
*Direct link to case docket on PACER.
