What's Justice Alito thinking?

 David Lat's excellent newsletter, Original Jurisdiction, pointed out these two exchanges in the website designed case, which are completely bizarre.

JUSTICE ALITO: Justice Jackson [offered an] example of the Santa in the mall who doesn't want his picture taken with black children. So, if there's a black Santa at the other end of the mall and he doesn't want to have his picture taken with a child who's dressed up in a Ku Klux Klan outfit, that black Santa has to do that?

[Colorado Solicitor General ERIC] OLSON: No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws.

JUSTICE KAGAN: And, presumably, that would be the same Ku Klux Klan outfit regardless whether the child was black or white or any other characteristic.

JUSTICE ALITO: You do see a lot of black children in Ku Klux Klan outfits, right? All the time….

YIKES!

Here's another doozy:

    JUSTICE ALITO: Okay. An unmarried Jewish person asks a Jewish photographer to take a photograph     for his Jdate dating profile. It's a dating service, I gather, for Jewish people.

JUSTICE KAGAN: It is.

(Laughter.)

    JUSTICE ALITO: All right. Maybe Justice Kagan will also be familiar with the next website I'm going     to mention. So, next, a Jewish person asks a Jewish photographer to take a photograph for his                ashleymadison.com dating profile.

(Laughter.)

JUSTICE ALITO: I'm not suggesting that. I mean, she knows a lot of things….

Double yikes.

Stone Walls and Steel Bars

By Michael Caruso

Yesterday, David mentioned a new report which describes a “federal jailing crisis” that disproportionately impacts poor people of color. The report was authored and researched by Prof. Alison Siegler and a team of her clinic students at the University of Chicago Law School. The report, Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis, drew upon two years of court-watching and interviews. Prof. Siegler included our district in her study.

Here are a few of Prof. Siegler's key findings:

"Federal judges regularly disregard the law that protects against a person being jailed due to their inability to pay bail, directly impacting people of color and people from low-income backgrounds."

"Federal judges regularly disregard the legal requirement to ensure that anyone who cannot afford a lawyer is represented by court-appointed counsel during their initial appearance hearing."

"Federal judges often overlook legal requirements at initial bail hearings, leading to unlawful detention."

"Federal judges routinely misapply the “presumption of detention” statute that applies in drug cases, improperly treating it as a mandate for jailing and fueling racial disparities."

Prof. Siegler's findings demand that we address and correct these systemic issues in our criminal legal system. Addressing these issues becomes more pressing when coupled with research that suggests pretrial detention leads to worse outcomes for the people in jail—both in their court cases and in their lives—compared with similarly situated people who are able to secure pretrial release.  

The Vera Institute, for example, has noted research dating back to the 1950s and 1960s has established a connection between pretrial detention and the likelihood of being convicted and sentenced to incarceration. This research suggests that pretrial detention, even for a relatively small number of days, may have negative implications for court appearances, conviction, sentencing, and future involvement with the criminal legal system.

Hopefully, Prof. Siegler's work, and the work of others,  will kickstart a national and local conversation about these issues. I hope the Court, the U.S. Attorney's Office, the Pretrial Services Office, the FPD, the criminal defense bar, and the impacted community can collaborate and move forward. No one group is responsible or blameless for this crisis.

News & Notes

 1. Judge Milton Hirsch wrote this incredible order about the right to a 12-person jury in state court.  Worth a read.  From the conclusion:

Had this order been filed six weeks earlier, it would have ended here. I would have concluded that Florida v. Williams is no longer the law, and that Defendant is entitled to a jury of 12. In the interim, however, an appellate court of this state has concluded the contrary. Ramos v. Louisiana was decided two years ago. While the vaunted Miami criminal defense bar, public and private, temporized and dawdled, a lawyer in St. Lucie County, Florida, appears to have raised the issue at bar. In the ordinary course, the matter then wound its way to the Fourth District Court of Appeal which, less than six weeks ago, decided Guzman v. State, ___ So. 3d ___ (Fla. 4th DCA Oct. 26, 2022).In Guzman, the Fourth District found that the issue of a 12-person jury was likely not properly before it, Guzman, ___So. 3d at ___; but that if it was, the Supreme Court in Ramos “ha[d] not revisited its express holding in Williams,” Guzman at ___, and the Supreme Court “does not normally overturn . . . earlier authority sub silentio.” Id . (quoting Shalala v. Illinois Council on Long Term Care, 529 U.S. 1, 18 (2000)). Noting how terse is the Guzman majority’s discussion of this issue, Defendant asks me to pass over it as meredictum. It is terse. But it is notdictum.11By operation of Florida’s well-settled “ Pardo rule,” see Pardo v. State, 596 So. 2d 665,666 (Fla. 1992), I am, in the absence of a binding decision from the Third District, bound by a decision from the Fourth District. As a judge of a lower court, I must follow controlling appellate case law. But judges of lower courts “may state their reasons for advocating change” while they follow controlling appellate case law. Hoffman v. Jones, 280 So. 2d 431, 434 (Fla.1973). I have done so. See supra at 7-11; see also Guzman, ___ So. 3d at ___ (Gross, J., concurring) (“The Ramos majority . . . contains references to the common law requirement of a12-person jury and suggests that the Sixth Amendment affords a right to the essential elements of a trial by jury as understood and applied at common law”).We will be ignoring, not effectuating, the intent of the Supreme Court, not to say the intent of our Constitution’s Framers, by trying this defendant before a jury of fewer than 12 good men and women and true. We will be ignoring a constitutional right. But like every lower-court judge I must obey the decisions of higher courts, “agreeing with some, disagreeing with some, following all, because our bondage to the law is the price of our freedom.” Johnson v. Johnson, 284 So. 2d 231, 231 (Fla. 2d DCA 1973).Guzman has considered Ramos and found Williams still to be the law. I sincerely hope and confidently believe that the Third District will find otherwise. Until it does, however, Defendant’s motion for a 12-person jury must be respectfully denied.

2. USA Today did a nice piece about how prosecutors federal judges are messing up bail and detaining too many folks.  Check it out here. 

Congratulations to newly confirmed U.S. Attorney, Mark Lapointe

Fantastic news.

Mark is a great guy and will be a wonderful U.S. Attorney.

Lots of speculation and chatter in the bar about how he will shake up the office and what measures he will take to change the culture over there.  

The Herald covers the confirmation here:

Markenzy Lapointe was confirmed by the United States Senate Tuesday night as the U.S. attorney for South Florida, making him the first Haitian-American lawyer to serve in the region’s most powerful federal law enforcement position. Lapointe, a former U.S. Marine and ex-federal prosecutor who was raised in Haiti and Miami, was nominated in September by President Joe Biden to fill the position, which is responsible for directing about 250 prosecutors in a district extending from Key West to Fort Pierce. It is considered one of the busiest districts in the country because of the region’s steady stream of financial fraud, drug trafficking and internet crimes.

"And" Means "And" (Or does it mean or?) -- UPDATE

 By John R. Byrne

"And" means "and," it turns out. That's the holding of the Eleventh Circuit after en banc review in United States v. Garcon, Case No. 19-14650. Judge Pryor wrote the majority opinion, framing the question presented as such:

• The question presented in this appeal of a grant of safety valve relief is whether, in the First Step Act, the word “and” means “and.” The Act empowers a court to grant a criminal    defendant relief from a mandatory minimum sentence, but that relief is available only if “the defendant does not have” “more than 4 criminal history points,” “a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense.” 18 U.S.C. § 3553(f )(1)             

The Court answered that question "yes," holding that a defendant has to check every box to lose eligibility. Because Garcon did not (he had a prior 3-point offense but did not have a prior 2-point violent offense or more than 4 criminal history points) he was eligible, as Judge Cohn had held at the district court level. 

The Court's reasoning for its ruling? "And" is "conjunctive." Seems straightforward, right? Not to dissenting Judges Jordan, Branch, Grant, and Brasher. All endorsed a disjunctive reading of "and." It's hard to do justice to the reasoning of both sides, so the opinion is worth a read, if anything to re-familiarize yourself with the various canons of statutory construction, which get a lot of attention (even the "absurdity canon")! Very interesting lineup of dissenters and this is Judge Pryor's second opinion for the en banc Court in favor of a criminal defendant (he penned the Corrine Brown opinion).

The practical takeaway? A lot more defendants will now be eligible for safety valve relief. Opinion below.

UPDATE by DOM: Thanks for the great post, John. I had to jump in and congratulate the Federal Defender's Office for this big win. It's not every day that you get an en banc ruling for a criminal defendant.  The case was handled by AFPDs Tracy Dreispul and Brenda Bryn.  Wonderful.

Opinion by John Byrne on Scribd