Addicted to jail (Probation Officers)

A few weeks ago, I wrote this piece in The Hill, "We're addicted to jail."  It addressed a problem that we have in the United States -- we jail too many people for too long.  I offered one modest proposal, that we get more defenders and civil lawyers on the bench and fewer prosecutors:

One easy fix — appoint more criminal defense lawyers and civil lawyers to the bench and fewer prosecutors. According to the Cato Institute, former prosecutors are “vastly overrepresented” throughout the judiciary. As to federal judges alone, the ratio of former prosecutors versus former criminal defense lawyers is four to one (and if you include lawyers who worked for the government on the civil side, the ratio is seven to one). A criminal case or a civil rights case has a 50 percent chance to be heard by a former prosecutor and only a six percent chance to be heard by a judge who has handled a case against the government. Cato explains the unfairness of this with a simple example — we would never allow four of the seven referees of a Ohio State-Michigan football game to be alumni of Michigan. Ohio State fans would never tolerate it. And yet, there are no criminal defense lawyers on the Supreme Court and there hasn’t been one for more than 25 years.

In many cases, former prosecutors have never represented a person sentenced to jail. They have never visited a client in jail. They have never explained to a family — while the family cried — that their loved one is going to be taken from them. As prosecutors, they have only put a lot of people in jail. And so, as judges, this addiction to jail continues, even for someone like Deandre, who ends up serving a jail sentence because he overslept.

I've decided to continue to write on this subject and offer other proposals with the hope of trying to fix the over-criminalization problem that both sides of the aisle agree on (when they literally can agree on nothing else).  If you'd like to write a response (and sign your name) or make your own proposal, please feel free to email me and I will post it.

One crazy function of the federal criminal justice system is that probation officers, who are mostly non-lawyers, prepare a presentence investigation report, which includes a calculation of the federal sentencing guidelines.  In other words, these officers are analyzing complex legal questions and making a determination, many times after only speaking to the prosecution about the case.  Those reports often-times take the most extreme view of the guidelines (even more extreme than the government's view of the guidelines), views that are not supported by the plea agreement, by the law, or by the facts.  The reports also do not ever include reasons for why there should be a downward variance under 3553.  They simply repeat their standard policy that there are no factors that warrant a variance.  And then some judges will meet with probation officers ex parte and discuss the guidelines and potential sentences, all without hearing from the parties.  It's an upside-down practice.

So here's another modest proposal, this one regarding probation officers --

1.  Probation officers should not do any analysis of the guidelines whatsoever.  That should be left to the parties to each submit their guideline calculations. The judge and her law clerks can then analyze the parties' submissions and rule on any disagreements.  The same for variance arguments (up or down).    

2. Just as importantly, judges should not have ex parte meetings with probation officers before the sentencing (or accept ex parte "blue sheets" with probation recommendations as to sentence).  It's simply not fair to the parties.  The judge that I clerked for -- Judge Edward B. Davis -- would occasionally meet with a probation officer in chambers when he had a question about something in the report.  But he would never do it without the parties.   I remember one exchange he had with a probation officer who had not recommended minor role for a drug courier.  Judge Davis asked him why the reduction was not considered even though the case law was clear that it was to be decided on a case by case basis.  The PO responded that his office had a policy of never including it.  Judge Davis chuckled and asked, "Don't you work for me?" 

 We have a real jail problem.  The federal guidelines are in part to blame.  That issue is exarcerbated when probation officers have the ability to shape the debate over how those guidelines are applied and then have access to the judge without the parties before sentencing.  There is no downside to making these small changes to our sentencing process. 

Bigger ones to follow.

"Corruption fighter to controversy, Kastrenakes lauded for smarts, chided for ‘God complex’"

That's the title of this Palm Beach Post article which profiles Palm Beach judge John Kastrenakes.  From the intro:

The two faces of Judge John Kastrenakes — vigilant defender of the law and unbridled hothead — played out in stark relief this month after his decision to send a juror to jail for 10 days.
WEST PALM BEACH — When John Kastrenakes arrived at the Palm Beach County Courthouse 10 years ago to take a seat on the powerful circuit bench all that was missing was a shining steed.
After sending five elected officials in the county to prison, the career prosecutor was feted as a gleaming knight who would use his formidable skills as a dogged crime fighter to continue to chip away at the area’s reputation as “Corruption County.”
A year later, he grabbed headlines for far different reasons.
Stopped for driving the wrong way in the parking lot of a service plaza on Florida’s Turnpike, Kastrenakes became irate. Blasting the Florida Highway Patrol trooper as “a liar,” he said he would never believe her and would doubt the veracity of any FHP officer who appeared in his courtroom.
Concerned about his ability to be fair, state prosecutors asked him to step down from seven cases built by FHP troopers. Kastrenakes agreed and apologized for his outburst.
The two faces of Kastrenakes — vigilant defender of the law and unbridled hothead — played out in stark relief this month.
Howls of overreaching and racial bias greeted his decision to send a 21-year-old West Palm Beach juror to jail for 10 days. Ruling that DeAndre Somerville willfully violated his orders, Kastrenakes found the young black man guilty of contempt of court after he explained that he overslept and didn’t call to report his absence because his cellphone was broken.
Florida state Sen. Bobby Powell, D-Riviera Beach, has asked the Judicial Qualifications Commission to investigate Kastrenakes.

Investiture for Roy Altman

It will be a big party on the top floor of the Wilkie Ferguson courthouse tomorrow afternoon for Judge Roy Altman.  Congrats to Judge Altman.

Judge Rodney Smith’s investiture will be next.

Then, if all goes according to plan, Judge Raag Singhal will be confirmed and have his.

We are still waiting on that 5th open district seat in Fort Pierce.

Lagoa and Luck on the Senate calendar

Judges Barbara Lagoa and Robert Luck will have their first hearings before the Senate tomorrow (Wednesday) morning at 10am and will answer any questions the Judiciary Committee might have.  After this hearing, they'll answer written questions from the Senators.  Floor votes should come relatively quickly. 

If you are interested in getting all the news as it happens, you should follow @fedjudges on Twitter.

Will the Dems address federal judges in tonight's debate?

Trump has placed an emphasis on remaking the federal judiciary and he has been extremely successful. Obama (and Clinton) never had such an emphasis. And the Democratic candidates so far have barely mentioned the judiciary in their campaigns and debates. Hopefully it will be discussed tonight.

Others, however, have been pressing for a new narrative on judging. Clark Neily of Cato has called for a moratorium on appointing prosecutors to the bench.

Given the government’s vast resources, nearly every court case pitting a lone citizen against the state represents a David-versus-Goliath fight for justice. To further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and a bad look for the justice system as a whole.

Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases. If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1. Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea. But neither is it wise to continue doing nothing while the imbalance runs the other way.

It is perfectly understandable that current government officials wish to stock the courts with former government advocates. But it’s a bad deal for the rest of us and a doubtful way to ensure equal justice under law.

And Demand Justice has put out its own Supreme Court shortlist (as Trump did when he was a candidate) since no Dem has done so. There are no Floridians on the list, and it's not a realistic list in my view (with only 2 Circuit judges), but it's a conversation starter.

Kudos to Judge Scola for being compassionate

It’s not every day that a federal judge is compassionate. But Judge Scola deserves a lot of credit today for releasing 84-year old Hafiz Khan, who is dying. The federal public defender’s office filed the motion for Khan, which received very strong opposition from the U.S. Attorney’s Office. From the Miami Herald:

“I do find that his demise is imminent, and he can no longer speak and does not pose a danger to the community,” Scola said Friday, after holding three hearings this week on the Khan family’s petition.
***
Earlier this week, a prison doctor testified that Khan has a host of dire health issues and could die within weeks. But he also said he may be too weak to be moved from the prison medical facility, let alone to Miami. Scola, the judge, raised concerns about the logistics of transferring Khan because of his fragile state.

The family, with the help of Federal Public Defender Michael Caruso and colleague Sowmya Bharathi, found a solution that satisfied the judge’s concern: a hospice center in Raleigh that could accommodate Khan on Friday.

“No one wants him released without proper medical care available,” Bharathi said, adding that Khan’s family had the finances to pay for his ambulance transfer to the Raleigh facility and the daily hospice care.

The judge said that because of Khan’s rapidly deteriorating health and inability to speak, he believed the defendant would be unable to spread any possible propaganda to incite the Taliban to take violent action against Americans — evidence that surfaced during his 2013 terrorism trial in Miami.

“Mr. Khan’s danger was his ability to speak and influence other people,” said Scola, who in his order prohibited Khan from any access to a telephone, computer or the internet. He also limited his visitors at the Raleigh hospice facility to immediate family members.

CA11 issues interesting opinion on experts

There are 3 opinions in this lengthy case, with the majority written by visiting district judge Lewis Kaplan, a concurrence by Julie Carnes, and a dissent by Tjoflat.

Of note is that many practitioners think that the criminal discovery rules require less disclosure from prosecutors on experts than the civil case counterparts. But Tjoflat explains that that understanding is wrong. Prosecutors must make real expert disclosures or risk full reversal:

In closing, to understand just how significantly Mentor has been wronged today, consider what we would do if this case were criminal rather than civil. Under Federal Rule of Criminal Procedure 16(a)(1)(G), the government has a duty to “give to the defendant a written summary of any [expert] testimony that the government intends to use.” Fed. R. Crim. P. 16(a)(1)(G). The government’s summary must include the expert witness’s “opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Id. As with the Civil Rules, the government has the continuing duty to inform the defendant of changes to the expert’s opinion. Id. 16(c). And, like Civil Rule 37(c), Criminal Rule 16 empowers the district court to “prohibit [a non-compliant] party from introducing
the undisclosed evidence.” Id. 16(d)(2)(C).

Now imagine this were a criminal trial. The government identifies Dr. Porter as an expert witness. Mentor obtains Dr. Porter’s summary, deposes Dr. Porter and—based on the information obtained—builds its defense. All seems to go as planned until, mid-trial, Dr. Porter changes his tune in a way that prejudices Mentor. Moreover, the circumstances of the reversal indicate that the government induced Dr. Porter to change his opinion. Mentor moves for a mistrial citing the
prejudicial and deliberate Rule 16 violation. The district judge denies Mentor’s motion, and Mentor appeals. Now the case is before our Court. What result?

Reversal. See United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999) (“[W]here it is apparent . . . that the defense strategy may have been determined by the failure to disclose, there should be a new trial.” (citation omitted) (second and third alterations omitted)). Reversal, and perhaps—because of the violation’s deliberateness—a citation of criminal contempt for the prosecution. But over on the civil side—with the same degree of prejudice and the
same degree of deliberateness—we inadvertently reward this behavior.

Why is that? Why do we tolerate in a civil case the same kind of behavior that would require reversal in a criminal case? It seems that we have two standards of ethics and professionalism—one for criminal cases, and another, significantly more lenient standard for civil cases. Lawyers do without a hint of shame in a civil case what they would never think to do in a criminal one. This bifurcated sense of what ethics and professionalism require of the bar is sadly nothing new. But what is new—and what is made worse by today’s majority opinion—is the extent to which we will let civil lawyers get away with behavior that would be unthinkable in a criminal trial.

“We’re addicted to jail.”

That’s the title to my latest in The Hill.  Please take a look.  Here’s a snippet:

We issue jail sentences like candy, to address every known problem that we have. Drug problem — jail. Using your family member’s address to get your child into a better school — jail. Paying college athletes — jail. The United States jails more people than any other country in the world. We have higher incarceration rates than Russia, Iran, and Iraq — by a lot. We tolerate innocent people sitting in jail when we only suspect that they might have done something wrong, as one man did for 82 days when he brought honey into the United States. 82 days.

Even though oversleeping doesn’t seem to be a rampant problem, the judge in Deandre’s case admitted that he was trying to solve a broader jury “misconduct” issue with jail. This is not how it should be.

The jail solution has become much worse than the diseases it was trying to cure. So what do we do about it?