What happened to Biden’s promises on criminal justice reform?

 That's the title of this Hill article by Max Burns.  From the intro:

Back in his 2020 run for the White House, Joe Biden won over the skittish left in part because of his willingness to take big, bold stances on hot-button issues like criminal justice reform. From interrupting the so-called “school to prison pipeline” through boosts to mental health funding to ending all incarceration for simple possession of drugs, the former vice president imagined a ground-up reworking of the carceral state.

Biden’s vows of far-reaching reform were so numerous that Prison Policy Initiative’s Wanda Bertram limited herself to listing only his five biggest pledges in a post-election recap. The Marshall Project went even further, calling Biden’s criminal justice platform “the most progressive … of any major party candidate in generations.”

It’s unlikely the Marshall Project would offer such glowing praise today.

A lot has changed in four years. Biden’s old criminal justice pitch has since been scrubbed from his website. He now faces regular criticism not only from the progressive left but also from experts within the criminal justice system for his often contradictory approach to the issue.

Biden isn’t alone: across the party, one of Democrats’ biggest issues in 2020 is all but invisible this year. What happened?

In researching this column I reached out to two dozen House Democrats, including multiple progressive lawmakers who staked prominent criminal justice reform positions in 2020. Not a single office responded. The situation wasn’t much better among the criminal justice reform nonprofits that vaulted to national prominence during 2020’s heated national debate on race, policing and prison reform. Of the 10 organizations I reached out to, I received responses from only two.

From those willing to speak, the message was clear. “The only hesitancy we’re seeing is from inside-the-beltway politicians who aren’t in touch with what their voters want,” Justice Action Network Executive Director Jenna Bottler told me. “If the president wants to rejoin the criminal justice conversation, it’s simple: listen to the voters who are smarter than election-year soundbites.”

Democrats’ sudden silence on criminal justice reform has been driven in large part by a wildly successful Republican messaging campaign. GOP politicians, aided by a friendly network of right-wing media outlets, have spent much of their time since 2020 selling American voters on the fiction that crime is surging. They’ve also made sure those Americans know to lay the blame on so-called “soft on crime” Democrats, whom they universally portray as eager to release dangerous felons onto the street. That messaging helped Republicans rack up wins that cost Democrats control of the House — a fact party leadership has been keen to remind progressives of in private.

Judiciary committee vote to be held Thursday (UPDATED)

Update — all three made it through.  Now on to the final step: a full vote. I hear that will likely happen in the next two months.

Good luck to our SDFLA nominees -- Jackie Becerra, Melissa Damian, and David Leibowitz.

All 3 are expected to get through the committee... then on to the full Senate.  

Let's go!

I remember when I was clerking for Judge Davis, Judges Gold and Middlebrooks were confirmed.  Judge Davis was gleeful as he reassigned cases between the two.  I know they supposedly changed the system so that it's random and cases with no pending motions, etc., but I wonder if that's actually what happens. 

Guns in Post Offices

By John R. Byrne

Not from our district but notable. Judge Mizelle from the Middle District of Florida dismissed an indictment charging a defendant for possessing a firearm in a federal facility (in this case, a post office). The defendant--who was a US Postal Service employee--argued the statute was unconstitutional as applied to him because it violated his Second Amendment rights. 

Mizelle agreed. She reasoned that the Supreme Court's decision in N .Y. State Rifle & Pistol Ass’ n v. Bruen, 597 U.S. 1 (2022) required there to be "historical support for [the statute]’s application to" the defendant. She found none.

"Post offices have existed since the founding, as have threats to the safety of postal workers and the public entering those locations. Yet the historical record yields no 'distinctly similar historical regulation addressing' those safety problems by regulating firearms in post offices."

Will be interesting to see how courts will apply Bruen in other contexts. In the meantime, if you want to know more about the US Postal Service, the opinion provides a little history lesson. Opinion below.

Ayala by John Byrne on Scribd

Judge Newsom awarded "judge of the week" by David Lat...

 ...in his excellent newsletter Original Jurisdiction here.  You all should subscribe.  It's worth it.  Here's the section on Judge Newsom:

Judge of the Week: Judge Kevin Newsom.

I’m a fan of the First Amendment, and I’m a fan of Judge Kevin Newsom (11th Cir.). So I was a happy camper this week, with Judge Newsom writing two noteworthy concurrences in First Amendment cases (and joining an opinion by Judge Britt Grant in a third case that vindicated free-speech rights).

First, Judge Newsom joined the majority opinion of Judge Jill Pryor in Warren v. DeSantis. After Andrew Warren, State Attorney for Florida’s Thirteenth Judicial Circuit, signed statements issued by a criminal-justice nonprofit articulating progressive positions on transgender rights and abortion, Governor Ron DeSantis (R-Fla.) suspended Warren from office. Warren sued, claiming that his suspension constituted retaliation for protected speech, in violation of the First Amendment.

The district court upheld the suspension, but the unanimous Eleventh Circuit panel vacated and remanded, concluding that Judge Robert Hinkle (N.D. Fla.) analyzed the relevant factors incorrectly. Judge Newsom joined Judge Pryor’s opinion in full but also wrote an excellent concurrence, which ended as follows (citations omitted):

The First Amendment is an inconvenient thing. It protects expression that some find wrongheaded, or offensive, or even ridiculous. But for the same reason that the government can’t muzzle so-called “conservative” speech under the guise of preventing on-campus “harassment,” the state can’t exercise its coercive power to censor so-called “woke” speech with which it disagrees. What’s good for mine is (whether I like it or not) good for thine.

Amen. As Mark Joseph Stern wrote in Slate, this ruling won’t help Judge Newsom’s chances for being appointed to the Supreme Court in a Republican administration—but it shows that he’s a principled and independent jurist.

Second, Judge Newsom joined the unanimous opinion of Judge Adalberto Jordan in Young Israel of Tampa, Inc. v. Hillsborough Area Regional Transit Authority (HART), which addressed HART’s policy of rejecting advertisements that “primarily promote a religious faith or religious organization.” Judge Jordan’s opinion concluded that “HART’s policy, even if viewpoint neutral, is unreasonable due to a lack of objective and workable standards.”

Judge Newsom authored a vintage Newsom concurrence, scholarly and thoughtful, exploring a profound question in the First Amendment context: “What, exactly, is religion?” The concurrence isn’t easily summarized, but his bottom line is that it’s exceedingly difficult “to settle on a precise, necessary-and-sufficient definition of ‘religion,’ and thus of ‘religious’ speech”—and thus many cases decided as First Amendment “religious speech” cases might be “better handled under the Free Exercise Clause.”

Finally, turning to another thorough, learned opinion that doesn’t lend itself to easy summary, Judge Newsom joined Judge Britt Grant’s opinion for a unanimous panel in McDonough v. Garcia. The opinion undertakes a very Newsom-esque project, trying to make sense of confusing and conflicting precedents about different types of public forums and how they should be analyzed under the First Amendment. As noted by John Ross of Short Circuit, “[t]here’s a lot going on in this retaliatory arrest case arising out of Florida”; I’ll just highlight my favorite part (citations omitted):

[M]ere words of anger, including profanity, directed at a police officer are not enough to sustain a disorderly conduct arrest. Nor are obscene gestures, whether alone or combined with verbal antagonism. Raising one’s middle finger or the equivalent is simply another way of saying “f**k you”—rude, but not illegal.

Judge Grant, like Judge Newsom, is a generally conservative Trump appointee; she’s definitely not anti-law-enforcement. But she is, like Judge Newsom, very pro-First Amendment—and her McDonough opinion reminds police officers that the Amendment applies to them too.

Eleventh Circuit Rules on Retaliation Case

By John R. Byrne

Yesterday, the Eleventh Circuit ruled against Governor DeSantis in the First Amendment retaliation case filed by Andrew Warren, the former state attorney for Florida's Thirteenth Judicial Circuit. DeSantis had suspended Warren based on certain policies and advocacy. Warren then sued the Governor under section 1983, alleging that DeSantis retaliated against him for his First Amendment activity.

After a bench trial, the district court determined that "bringing down a reform prosecutor" and DeSantis's "anticipated political benefit from suspending a progressive prosecutor" were "controlling motivations for the suspension." But the district court still ruled for DeSantis, holding that neither qualified as First Amendment retaliation.

The Eleventh Circuit disagreed, saying they might. For example, if DeSantis sought to reap political benefit from punishing Warren's "protected [First Amendment] activities" as opposed to "unprotected activities," that would violate the First Amendment.

Very interesting read, including Judge Newsom's lengthy concurring opinion, which ends on a variation on the goose/gander line. Noting that the government can't muzzle "woke" speech with which it disagrees any more than it can muzzle "conservative speech," he writes: "What's good for mine is (whether I like it or not) good for thine."

More litigation to follow, as the Court remanded the case to the district court for re-weighing.

Warren Opinion by John Byrne on Scribd

What's going on with Kodak Black?

 It doesn't look too good.  Remember that President Trump commuted his sentence.  But that put him on supervised release and apparently he isn't doing well. Apparently he violated and is currently at FDC. From All HipHop:

Kodak Black will remain in jail for at least the next two weeks, AllHipHop can confirm. The Pompano Beach, Florida native (legal name Bill K. Kapri) will have the final hearing regarding revocation of his supervised release in Miami Division before Judge Jose E. Martinez on January 22 at 11:30 a.m. ET. If the hearing doesn’t go in his favor, Kodak Black could wind up serving the original sentence Donald Trump commuted in 2020.

The latest legal troubles for Kodak Black stem from an incident in Plantation, Florida last month when police discovered his Bentley SUV parked in a roadway with the engine still running. When they approached the vehicle, they said Kodak Black was asleep behind the wheel and there was a strong odor of burnt marijuana coming from the vehicle. They also claimed they found rolling papers, weed residue near the center console and the smell of alcohol.

Three Opinions in Child Pornography Case

By John R. Byrne

It doesn't happen too often, but on Friday three judges issued opinions in a criminal case. Both Judge Jordan and Judge Luck dissented from parts of Judge Lagoa's majority opinion in a case involving child pornography.

Judge Jordan's dissent focused on the Defendant's conviction for production of child pornography. Jordan didn't believe that the "purpose" component of the statute, which requires a defendant to use minors to engage in sexually explicit conduct for the "purpose" of producing content, was met. The Defendant in the case had snapped a single photograph during intercourse with the minor, and Jordan seemed to think the act was too spontaneous to satisfy the purpose requirement.

Judge Luck, meanwhile, opined that the majority's decision to vacate the Defendant's conviction for witness tampering was erroneous. Luck spent some time explaining what he believed the statute requires the government to prove (and what it doesn't).

Gatlin Opinion by John Byrne on Scribd

Here's hoping for more clemency in 2024...

 ... but those hopes probably won't get us far, so we need you judges to have some more mercy when sentencing.  The Guideline Manual is definitely not your friend. 

In the meantime, President Biden ended the year by granting clemency in simple marijuana possession cases, but as this Hill article by Rachel Barkow and Mark Olser point out, that did not do much and no one was released from prison.  Biden also commuted 11 sentences, which was a bigger deal.  But there is still a backlog of 16,000 cases.  16,000!  Let's go Mr. President.

The below picture is a shrine to mercy at the Chi Lin Nunnery in Hong Kong.  Every great culture values mercy.  We need more of it in the United States.