First steps

Mitch McConnell will bring the First Step Act to a Senate vote.  I like the title because this bill doesn’t give a whole lot of relief, but it’s a nice first step in the right direction for criminal justice reform.  It will pass by a huge number.  From USA Today:

The measure would give judges more discretion in sentencing offenders for nonviolent crimes, particularly drug offenss, and bolster rehabilitation programs for former prisoners. It would also call for placing federal prisoners closer to home – no more than 500 miles – so families could visit more often.

Trump welcomed McConnell's announcement.

“Looks like it's going to be passing, hopefully – famous last words,'' Trump said at the White House. "It’s really something we're all very proud of. Tremendous support from Republicans and tremendous support from Democrats. Lot of years they've been waiting for it.”

William Barr to be Trump's Attorney General

Out with the old and in with the old.

Although Trump is calling for criminal justice reform and even pushed McConnell on Twitter for a vote on the First Step Act, Barr is an old-school criminal justice thinker.  Here's the Brennan Center for Justice explaining that he is similar (if not worse) than Sessions:

Barr’s record suggests he might also be opposed to the FIRST STEP Act, the current bipartisan bill on criminal justice reform. If passed, the bill would shorten some unnecessarily long federal prison sentences and enforce rules that would improve conditions for people currently in prison. Barr’s potential opposition to the FIRST STEP Act would put him at odds with President Trump and the majority of Republicans in the Senate, who support the bill.
Barr’s previous stint as attorney general also included troubling positions on criminal justice issues. During his tenure in the Bush administration, Barr helped devise federal policies that furthered mass incarceration and the war on drugs. Notably, in 1992, he published a book by the Department of Justice called The Case for More Incarceration, which argued that the country was “incarcerating too few criminals.” After serving as attorney general, Barr led efforts in Virginia to abolish parole in the state, build more prisons, and increase prison sentences by as much as 700 percent.

“Alexander Acosta is being unfairly criticized for his handling of Epstein’s plea deal”

That’s the title of my op-ed in the Miami Herald this morning.  It starts like this:

Alexander Acosta is arguably President Trump’s most successful cabinet member. For starters, job numbers and unemployment rates are breaking records under his supervision as Labor Secretary. And particularly noteworthy for this administration, Acosta has been scandal free. There have been no Twitter fights (like with Jeff Sessions), no misuse of government funds (like with six other cabinet members), or other similar issues (like with Louise Linton going off on Instagram).Instead, Acosta has done what he has always done — kept his head down, worked hard, and gotten good results.Because of his successes, there had been some whispers that Acosta was being considered, albeit as a long-shot, for Attorney General.Acosta, who has dedicated his life to public service (from the civil rights division to U.S. Attorney to dean of Florida International University School of Law to his current position in the cabinet), would have been an incredible choice.Then last week, the Miami Herald retold the story of Jeffrey Epstein’s plea deal from over 10 years ago, when Secretary Acosta was U.S. Attorney Acosta. Although Epstein was required to plead guilty, register as a sex offender, pay restitution and go to state prison, there are many — including the New York Times, Miami Herald, and others — who are calling for Congress to investigate Acosta and force him out, equating Acosta’s approval of the deal to Epstein’s actions.Although it is fair to have an honest disagreement about the Epstein plea agreement, the attacks on Acosta are not justified. As for the merits of the agreement, it is important to remember that the federal government only prosecutes federal crimes.

I can’t republish the whole thing here, so please click on the link above and let me know your thoughts.  

Read more here: https://www.miamiherald.com/opinion/op-ed/article222705765.html#storylink=cpy

Read more here: https://www.miamiherald.com/opinion/op-ed/article222705765.html#storylink=cpy

Federal Courts in SDFLA are closed on Wednesday 12/5

The notice is here.

Big Double Jeopardy case in Supreme Court this week

It’s Gamble v. U.S. and it comes out of the 11th Circuit (a 3-page unpublished opinion!). The issue is whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.

The separate sovereign doctrine — that different sovereigns, like the state and the feds could prosecute someone for the same crime — has bothered me for a long time and really makes no sense.

As usual, SCOTUSblog has lots of background and coverage.  Here is some summary of the arguments:

In the Supreme Court, the federal government insists that the separate sovereigns doctrine should remain in place. The text of the double jeopardy clause bars successive prosecution and punishment for the same offense, the government emphasizes, not for the same conduct. And when it uses the term “offence,” the government continues, the double jeopardy clause is referring to the violation of a law. The same conduct can violate two different sovereigns’ laws and constitute two different offenses, which each sovereign can then punish and prosecute separately. If the Framers had wanted the clause to apply more broadly, the government adds, they would have used the term “conduct” or “acts” rather than “offence.”

Gamble offers a very different interpretation of the text, telling the justices that nothing in the text points to any exceptions to the double jeopardy clause. Instead, he stresses, the text of the clause bars prosecution of the “same offence,” without suggesting that two prosecutions for the same offense would be acceptable as long as they are prosecuted by two separate sovereigns. To the contrary, Gamble observes, Congress considered but rejected an exception that would have allowed the federal government to prosecute a defendant even after he’d been convicted for the same offense under state law.

Gamble contends that the separate sovereigns doctrine is also inconsistent with the purpose of the double jeopardy clause. Permitting two consecutive prosecutions for the same conduct on the ground that prosecutions are brought by two different sovereigns, Gamble argues, “hardly serves the deeply rooted principles of finality and fairness the Clause was designed to protect,” particularly when it would still require two trials and could potentially lead to double punishments.

Gamble tells the justices that the principle of adhering to prior decisions – known as stare decisis – should not stand in way of overruling the separate sovereigns doctrine. First, he says, the doctrine “has long been questioned by members of this Court, lower-court jurists, and legal scholars” – including by both Justice Ruth Bader Ginsburg and Justice Clarence Thomas.

There has been lots of media coverage of the case because of what it might mean for a Mueller pardon and for a prosecution of Trump. Here’s the WAPO on the case:

But likely to be watching the proceedings closely will be those concerned about a big-time felon, Republican consultant and former Trump campaign chairman Paul Manafort, who was prosecuted by special counsel Robert S. Mueller III for tax fraud.

With President Trump keeping alive prospects that he might pardon Manafort, Gamble v. United States might be redubbed Manafort v. Mueller, joked Thomas C. Goldstein, an attorney who regularly argues before the Supreme Court.

The outcome in the case could affect nascent plans by states to prosecute Manafort under their own tax evasion laws — New York, in particular, has expressed interest — should Trump pardon Manafort on his federal convictions.

Witnesses do not belong to one side or the other

I use the current situation with Mueller, Manafort, and Trump as a vehicle to discuss the issue this morning in The Hill:

There has been a lot of hand-wringing over the recent revelation that Paul Manafort’s lawyers have been speaking to Donald Trump’s lawyers. Pundits have said breathlessly that such conduct is obstructive and that only mob lawyers engage in such behavior. Nothing could be further from the truth — by itself, there is nothing obstructive about the lawyers speaking with each other and sharing information.
Witnesses do not belong to one side or the other.
Paul Manafort has pleaded guilty and as part of his plea agreement has promised to answer Mueller’s questions truthfully. Mueller did not ask Manafort to keep those questions and answers secret, nor could he make such a request. This situation comes up frequently in federal criminal cases outside of mob cases. In one common scenario, employees who are questioned by federal authorities are often asked by their employers to share information and do so all of the time. There is nothing nefarious or obstructive about this. Several courts have explained that it is improper for a prosecutor to tell a government witness not to talk to the defense.

"Mueller should not get to decide whether Manafort is lying"

That's the title of my latest piece in The Hill.  The intro:

Prosecutors call them cooperating witnesses. The rest of the criminal justice system calls them rats, snitches, chivatos, stool pigeons, informants and sapos, just to name a few of the terms. The federal criminal justice system is built on these witnesses. So long as they tell “the truth,” they receive enormous reductions in their sentences. In some cases, sentences for defendants convicted after trial are 500 percent longer than sentences received by those who plead and cooperate with the government.
So it’s no surprise that trials have dropped from almost 20 percent of all cases in the 1980s to less than 3 percent today (with most all the rest of the cases resolving in a plea).  Like the days of Salem witches, even the innocent are racing to plead guilty and to tell the prosecutors what they want to hear in the hopes of avoiding monstrous sentences.
There are many fundamental problems with such a system. One such issue is demonstrated in the Paul Manafort case, where the prosecution team just filed a status report with the court explaining that they have concluded that Manafort is not fulfilling his end of the plea agreement because, they say, he has lied to them during interviews (or as they are called in the system, debriefings). Manafort has said he has answered all of their questions truthfully. This may or may not be true.

Trump bashes 9th Circuit for reversal rate...

...but you know which Circuit is reversed more often?

That's right, the 11th Circuit. (82% for the 11th vs. 80% for the 9th over the past 5 Terms).

It's all silly, of course. The reversal rate is pretty consistent across the circuits as the Supreme Court generally takes cases to reverse, not to affirm.

And the 9th Circuit is by far the largest Circuit with the most cases, so on a pure number-of-cases basis, it's going to lead the pack.

Justice Roberts joined the fray with this retort about an independent judiciary.

The Washington Post then roasted Trump explaining that judges on both sides of the aisle have been ruling against him, again and again:

[Roberts] could have noted that the number of rulings against his administration’s actions now stands somewhere in the range of about 40 to 50, according to a rough estimate by The Washington Post. Norman Siegel, writing at Law.com in January, counted 37 “major” losses, and that was in January, before numerous other rulings that thwarted Trump administration decisions.

And he could have observed that all of this is a bit of a surprise. All presidents lose cases. But a losing streak of this magnitude for a president is a new phenomenon.

Despite the endless decades of rhetoric about “judicial activism,” judges at the district court level are generally a timid lot when it comes to confronting presidents. Historically, they are inclined to do what former federal judge Nancy Gertner calls “duck, avoid and evade.”

“Now,” she wrote in the April issue of NYU Law Review, “I am not so certain. . . . Perhaps ‘judging in a time of Trump’ ” is different, she wrote. “It is one thing to ‘duck, avoid and evade’ when you believe that official actors are acting more or less within constitutional bounds. It is another to do so when you are concerned about real abuse of power.”

***
It was U.S. District Court Judge Dana M. Sabraw, for example, a California jurist appointed by President George W. Bush, who ripped the administration repeatedly for its family separation debacle.

And how could Trump forget that it was his own appointee, Timothy J. Kelly of the U.S. District Court for the District of Columbia, who slapped down the effort to ban CNN’s Jim Acosta from the White House.

***
One of the toughest dressings-down came from a decision blocking Trump’s “sanctuary cities” crackdown written by Judge Ilana Rovner, appointed by President George H.W. Bush to the U.S. Court of Appeals for the 7th Circuit, based in Chicago. In a decision joined by a Gerald Ford appointee and a Reagan appointee upholding a lower-court ruling by a Reagan appointee, she lit into the Trump administration for assuming powers to withhold money not granted to it by Congress to punish states and cities that didn’t go along with efforts to round up those in the country illegally.

Her message to Trump and then-Attorney General Jeff Sessions, translated, was basically, who do you think you are?

Our role in this case is not to assess the optimal immigration policies for our country. . . . The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescense of elected legislators, the check against tyranny is forsaken.