The pendulum is swinging

The Koch brothers are now fighting the prison problem in America.  Here's Charles Koch's piece in Politico: 

As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. This proliferation is sometimes referred to as “overcriminalization,” which affects us all but most profoundly harms our disadvantaged citizens. 
Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders. Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement. As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.
How did we get in this situation? It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems. Congress creates, on average, more than 50 new criminal laws each year. Over  time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.) As a result, the United States is the world’s largest jailer—first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration. The United States represents about 5 percent of the world’s population but houses about 25 percent of the world’s prisoners.

...Reversing overcriminalization and mass incarceration will improve societal well-being in many respects, most notably by decreasing poverty. Today, approximately 50 million people (about 14 percent of the population) are at or below the U.S. poverty rate. Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society—especially for the disadvantaged.

Meantime, in local news, Judge Darrin Gayles spoke to the Federal Bar Association today.  A nice turnout and a good talk about practice dos and don'ts in his courtroom.

Good luck to John Pacenti

John is leaving the Daily Business Review and headed back to the Palm Beach Post.  He's been a fantastic federal courts reporter and will be sorely missed. 

He is a graduate of the University of Arizona and has been a reporter since he was a sophomore in high school. He has worked as a sportswriter and a music critic but his forte has always been hard news. After working 10 years for the Associated Press in Phoenix and Miami as a newsman and a sportswriter, he went to work for the Palm Beach Post in 1999 covering civil and criminal justice, as well as sports news.

He started as the federal courts writer for the Daily Business Review in 2007 where he won awards for his coverage on crooked court-appointed trustees, pill mills, and police shootings. 

He should be particularly proud of his Justice Watch column, as well as coverage on prosecutorial misconduct and the Miccosukee litigation.

Same as it ever was?

Such a waste....

Let's see if 2015 is the year that judges really step up and start putting a check on the executive by making that chart curve back downwards.  Some are hoping that the 11th Circuit will start to change things with all of the new judges, but others are more realistic.  From the Daily Report:

... Obama's Eleventh Circuit nominees as a group do not appear to be particularly liberal—and, to the extent they lean left, they may be hamstrung by years of conservative precedent. Jill Pryor once sat on the ACLU of Georgia's legal committee, and Martin has spent considerable time penning dissents to conservative rulings since joining the court. But all of Obama's Eleventh Circuit nominees except Pryor have spent time as prosecutors, and she has spent the bulk of her career as a business litigator. Julie Carnes was appointed to the district court by George H. W. Bush and was selected for the Eleventh Circuit as part of a compromise package of federal court nominees agreed to by the White House and Georgia's senators.
Court watchers should learn more soon.
A group of doctors' request that the entire court examine a controversial, high-profile ruling on guns has been pending since August. A panel in that case rejected the doctors' First Amendment challenge to a Florida law that limits physicians' ability to talk to their patients about firearms.
The Eleventh Circuit is set to hear three cases en banc in February: two criminal cases and a civil case in which the court will revisit aspects of a panel decision that sided with plaintiffs who filed a Fourth Amendment lawsuit over a raid of a barber shop.
Also in February, a three-judge panel is scheduled to hear an Alabama-based, nonprofit Catholic television and radio network's challenge to the federal contraceptive mandate. Unlike the businesses that won their case before the Supreme Court in June, the religious nonprofit can opt out of providing contraceptive coverage, but it has argued that filling out the required form that would signal its third-party health insurance administrator to provide the coverage is itself a violation of the group's religious beliefs. The Eleventh Circuit recently granted oral argument in a similar case brought by the Roman Catholic Archdiocese of Atlanta and the Roman Catholic Diocese of Savannah.
And, although the U.S. Supreme Court may get to the issue first, the Eleventh Circuit has in November and December received an avalanche of briefs from the parties and other interested groups in a case over Florida's ban on marriages by same-sex couples.

Or how about cleaning up the Department of Corrections?  Did you see the Herald article about the DOC forging a document regarding a criminal investigation?  This is scary:

The Florida Department of Corrections has opened a criminal investigation into whether a public record provided by the agency to the Miami Herald was forged.
The document was a form, purportedly filled out and signed by inmate Harold Hempstead, the whistle-blower who in March leaked details to the newspaper about a gruesome death at Dade Correctional Institution, where inmate Darren Rainey collapsed while locked in a brutally hot shower.
Hempstead’s information led the Herald to investigate the Rainey case as well as other suspicious deaths and possible corruption in the Florida Department of Corrections. By the end of 2014, DCI’s top administrators had been ousted, and the department’s secretary, Michael Crews, had retired.
Last year, in the course of the newspaper’s investigation, Hempstead signed a release giving the Herald blanket permission to obtain all his medical records, waiving the strict health information privacy law known as HIPPA.

The rule provides safeguards to protect the privacy of personal health information, and sets limits and conditions on what may be disclosed without patient authorization. Normally, the department heavily redacts its documents, citing the federal law, including details such as where a prisoner is found injured, beaten or dead, where they are transported after they are found and evidence discovered at the scene that the agency believes may reveal an inmate’s medical condition. Examples of redacted items might include descriptions of bloody clothing or, in the case of Rainey, the fact that pieces of skin had fallen off his body.
After Hempstead signed the waiver, a Department of Corrections spokesman informed the newspaper that he had withdrawn his permission to release his records uncensored. When the Herald questioned whether that was true, the spokesman supplied a document — seemingly not in Hempstead’s handwriting — that expressed his change of heart.
Since then, the inmate said, he has told two DOC investigators in two separate interviews that the second document is a fraud.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article5341200.html#storylink=cpy

"On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics!"

That's how Chief Justice Roberts starts his year end report.  He goes on to explain that his hope is that by the end of 2016, the Court will be more automated, having electronic filing and public access to court filings.  But the Chief has quite a lead in to get there.  The intro to his report continues:

The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another. Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.” News of this dawning era was slow to reach the Supreme Court. It was not until 1931 that the Marshal of the Court proposed installing a pneumatic tube system in the Courtroom for the benefit of the press. Architect Cass Gilbert incorporated that technology into the design of the Court’s current building, concealing the gray metal tubes behind mahogany desks and beneath the marble floor. When the Court opened the doors of its new Courtroom in 1935, it also revised its procedure for issuing decisions. Under the new “hand- down” protocol, immediately before a Justice announced a decision in the Courtroom, the Clerk of the Court directed messengers to hand copies to a small group of journalists stationed in front of the bench. The journalists then dispatched the copies through the pneumatic tubes to their colleagues in the press booths one floor below, saving the messengers dozens of steps and precious minutes in communicating the news of Court actions. For thirty-six years, virtually all of the Court’s decisions reached the press through those portals. A notable exception was the Court’s 1954 decision in Brown v. Board of Education. Chief Justice Warren made a point of delaying delivery of his short opinion until he had read it in full in open Court. But not even things gray can stay, and the venerable steel hardware ultimately outlived its usefulness. In 1968, John P. MacKenzie, the Supreme Court reporter for the Washington Post, described the Court’s process of transmitting decisions as “perhaps the most primitive . . . in the entire communications industry.” The Court’s pneumatic age ended in 1971, when Chief Justice Burger authorized the removal of the pneumatic tube system at the same time that he introduced the Court’s familiar curved bench. The Washington Post’s celebration of the marvels of pneumatics, followed by the Supreme Court’s belated embrace and overdue abandonment of a pneumatic conveyance system, illustrates two tenets about technology and the courts, one obvious and the other less so. First, the ceaseless growth of knowledge in a free society produces novel and beneficial innovations that are nonetheless bound for obsolescence from the moment they launch. No one should be surprised that the same surge of creativity that pushed courts from quills to hot-metal type will inevitably propel them past laser printers and HTML files as new technologies continue to emerge. Second, and perhaps less evidently, the courts will often choose to be late to the harvest of American ingenuity. Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations.

If you are working today and need more than the Chief Justice's 16-page report to get you through the day, you can hit up Judge Jordan's 150-plus order on a case he kept as a district judge regarding healthcare and  disabled children.  The Miami Herald summarizes the ruling here:

A federal judge Wednesday declared Florida’s healthcare system for needy and disabled children to be in violation of several federal laws, handing a stunning victory to doctors and children’s advocates who have fought for almost a decade to force the state to pay pediatricians enough money to ensure impoverished children can receive adequate care.In his 153-page ruling, U.S. Circuit Judge Adalberto Jordan said lawmakers had for years set the state’s Medicaid budget at an artificially low level, causing pediatricians and other specialists for children to opt out of the insurance program for the needy. In some areas of the state, parents had to travel long distances to see specialists.The low spending plans, which forced Medicaid providers for needy children to be paid far below what private insurers would spend — and well below what doctors were paid in the Medicare program for a more powerful group, elders — amounted to rationing of care, the order said.“This is a great day for the children in this state,” said Dr. Louis B. St. Petery, a Tallahassee pediatrician who is executive vice president of the Florida Pediatric Society and helped spearhead the suit. “This action was taken because we found that children weren’t being treated properly if they were on Medicaid. Our position as pediatricians,” he added, “is that children do not choose their parents. They don’t have a choice to be born into a rich family or a poor family.”

UPDATE -- Here is the order.  Thanks to a reader for sending it along.

The blog will be back Monday with regular posts.  Hope everyone had a nice holiday.  Happy new year!

Read more here: http://www.miamiherald.com/news/politics-government/state-politics/article5242959.html#storylink=cpy

Shhhh, this is a secret.

This is a great idea for Judge Hoeveler.  But he doesn't know about it, so please don't tell him.  Here's the email that's been going around the legal community:

Dear Colleague:

A number of us have been sharing recollections of our appearances before Judge Hoeveler and our encounters with him over the years. It became clear to us that such stories from the members of our legal community "could fill a book," and so, with the cooperation of Judge Hoeveler's staff, that is precisely what we would like to do. We are preparing a book of such reminiscences which we hope and expect the Judge will enjoy, and we invite you to submit a story for inclusion in this book.
At some time in early 2015, St. Thomas University School of Law will be hosting an event to honor Judge Hoeveler and to announce that its Law Library has been selected as the repository for his trial notebooks, correspondence, and other judicial memorabilia. We are pleased to announce that St. Thomas has agreed to publish this book and to present it to Judge Hoeveler at that ceremony.  (It is intended to be a surprise to the Judge.)  After that, copies will be made available to the public. As you may know, The Florida Bar annually awards the William M. Hoeveler Judicial Professionalism Award to an outstanding jurist in Florida, and copies of this book will be presented to the Hoeveler Award recipients in future years.
We hope to include in this book stories about Judge Hoeveler, both from the time when he was practicing as a lawyer and during his 37 years of service on the bench. We are not looking for tributes or general praise, but rather anecdotes and "war stories" which by their narratives, and not by their adjectives, will say something about the kind of lawyer, jurist and person he is. These stories may be serious or funny, they may relate to personal encounters or things which took place in the courtroom during routine or more significant matters. Whether submissions emphasize his grace, patience, diligence, kindness or sense of humor, we believe that the collection as a whole will say something important about him and we hope that it will be a fitting tribute to his legendary career as a lawyer and trial judge.
Your submission should be double-spaced in Word, in Courier New, 12 point, and preferably no longer than a single page. Please identify yourself by name and affiliation, and give context for your submission.Please send it to HOEVELERSTORIES@gmail.com. Professor Gary Kravitz at St. Thomas and Barbara Junge, Judge Hoeveler's former law clerk, will collect the stories and prepare them for publication. Also, in your email message please identify the specific character trait(s) your story highlights, e.g., grace, patience, diligence, kindness, sense of humor, integrity, faith, hard-working, or others, as this will help us assemble the stories in the collection.

Please send your submission no later than January 20, 2015. Unlike Judge Hoeveler, we will not be liberal in granting extensions, although for a good excuse and a good submission exceptions will be made.

Please forward this solicitation to friends and colleagues who may not have received it directly.
  

In support of Judge Rakoff

Judge John L. Kane has now joined Judge Rakoff in calling for reform in the criminal justice system because too many innocent people are pleading guilty.  From the conclusion to Kane's essay in the Marshall Project:

Sentencing should never be easy. It should never be cryptic and it should never be mechanistic, the product of senselessly following a matrix. A judge’s job is to synthesize and harmonize the competing narratives of the persons involved in the events of the crime with the specific intent of inclusiveness. That job stands in stark contrast to the mentality of the Sentencing Guidelines when they are mandatory. If, indeed, a judge now is again required by Supreme Court precedent never to impose a sentence he or she does not believe in, the chances of an innocent person pleading guilty and sentenced accordingly will be drastically diminished.
In this way the Supreme Court, through its recent rulings inUnited States v. Booker and Gall v. United States, has restored over the past decade a meaningful and responsible role to judges at sentencing. It is no longer acceptable for them to be wooden bureaucrats and they must craft sentences appropriate to the circumstances of the case. The searching inquiry required should enable the judge to vacate a coerced plea or one that is made as the lesser of evils. My question then is this: am I and my fellow jurists doing enough each day to implement this mandate, to replace the mindless practice of assembly-line plea bargaining with a process that is based on integrity and that aspires to justice rather than succumbs to the cynicism of convenience?
It is perhaps helpful to think of sentencing in terms of the classical Greek word for “injustice.” The literal translation is “out of balance.” Doing justice is an act of restoring balance. Human nature discourages venturing into this area without a template that allows one to fill in the blanks — and so to follow the rote responses of bureaucracy. But putting the thumb of convenience on the scales of justice is precisely what causes the innocent to plead guilty. It is the inevitable result of a laconic adherence to a thoughtless and passionless process. And we all can do something more about it.

Happy FESTIVUS for the rest of us

An early Christmas present for Pizzi

Wow, the Supreme Court ruled for Michael Pizzi saying that the Governor should revoke his suspension.  But it's not altogether clear whether that means he is going to be mayor again.  From the Miami Herald:

“This is huge, man. This is huge. I won,” Pizzi said in a telephone interview from his car after learning of the court’s decision. “This is the best Christmas present the Pizzi family and the people of Miami Lakes and everyone who cares about the rule of law could ever get.”

The developments don’t guarantee Pizzi’s return to office and only promise more fireworks at Miami Lakes Town Hall, which has seen more than its share of excitement since Pizzi was removed by Scott in August 2013.

Town Attorney Raul Gastesi maintained Monday before Scott revoked the suspension that Miami Lakes has a mayor — Slaton — and stressed that the court had not ordered returning Pizzi to office.

In another only-in-Miami story, one of the Cuban spies that was sent back to Cuba returned to find his wife very pregnant -- BY HIM!  Apparently he was permitted to send his sperm to Cuba months ago as part of the ongoing negotiations.  I kid you not:

 The mystery of that pregnancy emerged Monday, and it will go down in history books as one of the most bizarre subplots in the annals of U.S. diplomacy.

Turns out that Hernández already knew that his 44-year-old wife, Adriana Pérez, was pregnant, and that he is the father, even though he was never physically close to her during his incarceration.

The pregnancy came through artificial insemination, and it was a side deal that paved the way for the much larger and sweeping agreement Wednesday in which Cuba and the United States announced the renewal of diplomatic relations, broken more than half a century ago. Hernández and two other convicted Cuban spies went free as part of the deal.

Call it diplomacy via paternity.

It came about through the office of Sen. Patrick Leahy, a Vermont Democrat, who has campaigned for years to restore relations with Cuba. In 2010, Leahy began efforts to persuade Cuba to ease up on the harsh conditions imposed on a jailed American in Havana, Alan Gross, a subcontractor for the U.S. Agency for International Development.

In seeking better conditions for Gross, Leahy’s office discovered that Hernández’s wife back in Havana, who reportedly also is an intelligence officer, was hearing the ticking of her biological clock ever louder and was desperate to become pregnant. U.S. officials now say they facilitated the transfer of Hernández’s sperm from the U.S. to the Cuban capital to help improve conditions for Gross, who regained his freedom Wednesday as well and is back in the United States.

“We can confirm the United States facilitated Mrs. Hernández’s request to have a baby with her husband,” said Patrick Rodenbush, a spokesman for the Justice Department. “The request was passed along by Sen. Leahy, who was seeking to improve the conditions for Mr. Gross while he was imprisoned in Cuba.”