Tuesday, August 13, 2013

Tuesday news and notes

1. Eric Holder's speech was quite a doozy and is a breath of fresh air for the draconian sentences that have been doled out over the past 20 years.

Even though law enforcement is complaining that their snitches won't be as motivated under the new policy, the real question is whether the actual policy goes far enough. Unfortunately, the policy is not law and is not binding on prosecutors.  In other words, it leaves the discretion with individual prosecutors as to whether to follow it or not.  (In the recent Brady policy issued to prosecutors, it's become clear that nothing much has changed because prosecutors still say that they are only obligated to turn over what's required by the rule and not by the policy statement of their boss.) Rumpole also raises the real concern (in the comments) about whether the new policy will be ignored when defendants actually decide to fight and go to trial... Let's see how this plays out; It's still a good start, which should be applauded because judges will be free to judge again instead of imposing arbitrary min/man sentences.

UPDATE --the actual policy can be read here.

2.  The ABA has approved a resolution in support of legislation authorizing judgeships.  Via Legal Newsline (HT GS): 

At this year’s meeting, which runs through Tuesday, delegates voted in favor of comprehensive legislation to authorize needed permanent and temporary federal judgeships, with particular focus on the federal districts with identified judicial emergencies “so that affected courts may adjudicate all cases in a fair, just and timely manner.”
The ABA also is urging President Barack Obama to advance nominees for current vacancies for federal judicial positions “promptly” and the U.S. Senate to hear and vote on the nominations “expeditiously.”
The association noted that Congress has not passed comprehensive legislation authorizing additional judgeships since 1990.
Since that time, federal district courts have experienced a 38 percent growth in caseloads but have seen only a 4 percent increase in judgeships.
“Legislation is needed to ensure that the federal judiciary has the judgeships it needs to adjudicate all cases in a prompt, efficient and fair manner,” according to the association’s executive summary of the resolution.

“As of May 16, 2013, there are 85 federal judicial vacancies and 24 nominations pending. Filling these existing judicial vacancies is essential.”
Last month, U.S. Sens. Patrick Leahy and Chris Coons introduced legislation that would create 91 new federal judgeships in two federal circuits and 32 federal districts across 21 states.

Maybe we should confirm the outstanding judges first...


MC Waste Services, Inc said...

suspended with pay?


MC Waste Services, Inc said...


Rumpole said...

So many AUSA's are drones trained to do only what rules require and no more. And they work for an institution that rewards such behavior. This won't amount to a hill of beans in most cases and in difficult jurisdictions. Just like the discovery policy has been a non-starter as well. AGs come and go, but minimum mandatories live for ever ( or until the expiration of their sentence).

Anonymous said...

I think that the main benefit of the policy is that it gives the judge some discretion at sentencing. That is huge. Also, the policy (I believe) says that--depending on the circumstances--prosecutors are not supposed to include the drug amount(s). In most cases, at the time that initial decision is made, the prosecutor/office will not know whether the defendant will plea or not. As such, the question will be whether the Office will supersede the indictment to include specified drug quantities under Alleyne when it becomes clear to them that the defendant is going to trial? I think that doing so would undermine the very foundation of the new policy. And I think it presents serious optical issues for the Office and it runs the risk of looking vindictive. A decent number of judges would be very upset by it. I also believe that defense lawyers do not make enough strategic use of these DOJ policy memos/statements at sentencing when they are not followed in a meaningful way. We should all force the prosecutor to explain why he/she is not following the policy; it places the Office in a very uncomfortable position.

As an aside, Eleventh Circuit cases like U.S. v. Perez and U.S. v. Harden are no longer good law in light of Alleyne (unless I’m missing something). Those cases stood for the proposition that “[b]ecause the quantity of controlled substance triggering the enhanced penalties provided in § 841(b) is relevant only at sentencing, there is no reason that the quantity involved must necessarily appear in the indictment if the defendant is otherwise on adequate notice that enhanced penalties are available.” United States v. Perez, 960 F.2d 1569, 1574 (11th Cir. 1992) (per curiam). Yet, the cases are not red-flagged on Westlaw.