Happy Holidays from Merrick Garland

Better late than never!  Just in time for the holidays, AG Merrick Garland said that DOJ would reverse course and allow many prisoners who were released to home confinement during the pandemic stay on home confinement and not have to go back to prison.  From The Hill:

Attorney General Merrick Garland announced on Tuesday that the Department of Justice would allow some prisoners who were released to home confinement during the pandemic to stay out of prison, reversing a legal stance adopted in the last days of the Trump administration.

 

"Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules," Garland said in a statement. "We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”

 

Garland cited a memo from the DOJ's Office of Legal Counsel (OLC) released on Tuesday that found that the relief bill enacted in the early days of the pandemic known as the CARES Act authorizes the department to use its discretion in allowing those on home confinement to stay out of prison.

 

The new memo overrides the legal position that had been in effect since January, which was that the thousands of inmates on home confinement must be returned to prison once the pandemic was declared over.

 

The Biden administration had been facing pressure for months to reverse the position and avoid re-incarcerating people who had spent months reconnecting with their families and integrating back into their communities. Some criminal justice reform advocates had called on President Biden to use his clemency powers to avoid a mass influx of returning prisoners.

Kevin Ring, the president of Families Against Mandatory Minimums, applauded the DOJ's reversal on Tuesday.

 

For the Defense, Season 4 Premiere with Bruce Rogow for 2 Live Crew

 

FOR THE DEFENSE SEASON 4
BRUCE ROGOW FOR 2 LIVE CREW

We're back! Season 4 of For the Defense launches today.  For the Defense is a podcast I started with Rakontur two years ago with the idea of getting in depth about the most fascinating trials with great trial lawyers. This season starts with Bruce Rogow, who will be discussing the 2 Live Crew trial.  (Episode on Apple here). Season 4 will continue with new episodes every other Tuesday featuring the following guests:  

• Mark Geragos (Susan McDougal)
• Juanita Brooks (John DeLorean)
• Gerry Goldstein (Deep Throat)
• Geoffrey Fieger (Dr. Jack Kevorkian)
• Brian Heberlig (Ali Sadr)
• Ed Shohat (Carlos Ledher)
• John Gleeson (Holloway Project)

As always, you can catch these episodes on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on this website. 

 

Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here.

Linda Lopez (S.D. Cal.) confirmed

A big congrats to Miami native Linda Lopez for her confirmation as a U.S. District Judge in the Southern District of California. The vote was 48-25.  Judge Lopez started her career as a paralegal here in Miami and then became a criminal defense lawyer.  She moved to San Diego to work at the Federal Defender's Office.  She then became a magistrate judge, where folks on both sides of the aisle enjoyed appearing before her.  And now she's a district judge.  What a cool story. 

Happy Holidays!

 So sorry for the slow blogging this week.  I was in trial with Margot Moss and Todd Yoder before Judge Jose Martinez.  The charge: illegal dredging under the Rivers & Harbors Act of 1899.  We got a two-word verdict to start the holiday season!  There is still nothing better.  I'll be back next week with regular posts.

Help Wanted

By Michael Caruso 

Federal courts regularly appoint receivers upon request by the Securities Exchange Commission, Federal Trade Commission, United States Department of Justice, and other interested parties to assist in resolving complex problems. The receiver’s role may involve marshaling, maintaining, managing, and safeguarding the assets of the receivership estate. The goal is often a subsequent distribution of these assets under the court’s supervision.

 

There has been a particular lack of diversity in federal equity receiverships across the country. Adding to the problem is the fact that receiverships do not happen as frequently as other cases, meaning there are fewer opportunities to be appointed and gain experience.

As a small step to address this issue, our local federal Diversity and Inclusion Practitioner’s Committee is hosting a panel discussion “Demystifying Receiverships in the Southern District of Florida.” The webinar will take place on January 26, 2022, from Noon-1:30 and is FREE.

The all-star panel features the Hon. Darrin P. Gayles, District Judge for the Southern District of Florida, Eric I. Bustillo, Director of the Miami Regional Office of the SEC, Corali Lopez-Castro, Kozyak Tropin & Throckmorton, and Naim S. Surgeon, Stroock. The moderator will be Julie Braman Kane, Colson Hicks Eidson.

 

If you are interested in these opportunities, please register here! 

"Union Says Staffing Shortages Within Federal Bureau Of Prisons Leading To More Violence"

 That's the title of this Forbes article by Walter Pavlo, who does a lot of good work in this space.  You'll see a number of references to what's going on at FDC in the piece, which is worth reading:

A grievance was recently filed with the Occupational Safety and Health Administration (OSHA) over a recent incident involving an inmate attacking a BOP staff member. Eric Speirs, President of AFGE Local 501 in Miami, said wrote that, “Federal Detention Center (FDC) Miami, FL officials continue to place law enforcement personnel in harms way by understaffing housing units at the facility.” Speirs stated to OSHA that an inmate at FDC Miami, Horrace Harris, who was in custody on murder and carjacking charges, attacked a corrections officer with a metal shank inside a housing unit where there were 116 inmates and a sole corrections officer. The officer was wearing a protective jacket but did sustain puncture wounds. Speirs told me, “If he had not been wearing a vest, we would be dealing with a homicide.”

Attacks on staff at FDC Miami are not new Speirs said. Since 2019, there have been 23 incidences of staff being the target of inmates seeking to harm them … none of those have resulted in additional criminal prosecutions. Speirs told me in an interview, “It is frustrating when passengers on airlines can be punished, rightly, for having an altercation with a crew member, but corrections officers seem to be exempt from the same sort of protection under the law.” In October 2019, rapper Kodak Black (Bill Kapri) was involved in an incident that sent a prison corrections officer at FDC Miami to the hospital and black to a transfer center in Oklahoma. President Donald Trump commuted Black’s sentence shortly before leaving office in January 2021.

Speirs was also frustrated by the fact that the corrections officer involved in the most recent incident had only been on the job for 8 months with his previous experience being a screener at with the Transportation Security Administration (TSA) at Miami International Airport. “It is not that he was new that bothers me as much as he had so little training,” Speirs said of the corrections officer injured in the attack, “but this guy had not even been to the training courses at the Federal Law Enforcement Training Center in Glynco Georgia.” In a letter to US Representative Fredica Wilson (D-FL), Speirs wrote, “Our new personnel only receive 2 weeks of in-class training and 3 weeks hands-on at FLETC, Glynco, GA. Most State and County corrections receive 6 months of training. Officer (name withheld) was on the job for 8 months and still had not been to FLETC! Some new employees have been working around 100+ [inmates] of all security level inmates for 2 years without being to FLETC due to Covid-19 even though other federal law enforcement agencies continued training.” The BOP has been criticized for augmenting staff shortages by using non-traditional corrections officer staff to supervise the inmate population.

In addition to the most recent attack at FDC Miami, a corrections officer at the detention center was injured this morning while chasing an inmate holding a cell phone down a stairwell.

The Long Way Home

By Michael Caruso

If you were a criminal defense lawyer in our district in the early 2000s, you undoubtedly had a client incarcerated at FCI Tallahassee. And if you did, your client certainly knew Katina Smith, who befriended many other women who were serving time there.  Ms. Smith's son—former NFL receiver Demaryius Thomas—passed away yesterday due to a medical issue stemming from a car accident. 

When I heard of his passing, I first thought of a client who was very close to Ms. Smith at FCI Tallahassee. I then recalled this fantastic piece of journalistic storytelling about Ms. Smith and her son.  The story reveals much about their family and our federal criminal legal system.

A little more than a year after the publication of this story, President Obama commuted Ms. Smith's 24-year sentence, and Ms. Smith finally got to see Demaryius play football—in the Super Bowl. 

This is not, however, a story about football but of a family's devastation, struggle, and perseverance. And because of President Obama's commutation, Ms. Smith and Demaryius were reunited and able to be a family again.

According to the Department of Justice, nearly 18,000 clemency petitions are currently pending. As December is traditionally the month in which Presidents issue pardons and commutations, here's hoping that President Biden uses his powers wisely and other families are reunited.

Do dems secretly want Roe to get overturned?

 That's the question that keeps coming up at every holiday party and cocktail event.  If Roe gets wiped away, will that turn the tide in the next election and help the Democrats keep the House/Senate and retake the Supreme Court?  Is that worth it since it appears that the party is in neutral? 

Meantime, Ruth Marcus wrote this piece in the Washington Post about the oral argument:

The vision of getting the courts out of the abortion-deciding business sounds so reasonable, so alluring.

It is also wrong, misleading and dangerous.

Mississippi Solicitor General Scott Stewart laid out the argument during the oral argument last week — urging the justices not only to uphold his state’s ban on abortion after 15 weeks but to overrule its decisions finding that the Constitution protects a woman’s right to choose.

“The Constitution places its trust in the people,” Stewart said. “On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”

Justice Brett M. Kavanaugh amplified Stewart’s argument, presenting it as the position of one side but leaving little doubt how much it resonated with him.

The Constitution, Kavanaugh posited, is “neutral” on abortion, “neither pro-life nor pro-choice.” Consequently, “this Court should be scrupulously neutral on the question of abortion … rather than continuing to pick sides.”

How superficially appealing all this is. Who could be against neutrality, especially scrupulous neutrality? Who disagrees with leaving choices to “the people” in a democracy?

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

The Constitution instructs that the majority cannot force its preferred religion on the minority; in fact, it must respect and accommodate individuals’ free exercise of their own religious beliefs. The Constitution teaches that the majority cannot choose to shut down or punish speech that it finds disagreeable or even offensive. It means that “the people’s” decisions about how to reduce gun violence are limited by the court’s interpretation of the Second Amendment.

Conservative justices have had no difficulty taking this disempowering of “the people” to sometimes questionable extremes.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.


***

Thus, constitutional protection for the right to abortion is not a deviation from the court’s jurisprudence, it is a logical extension of it. “Our obligation is to define the liberty of all, not to mandate our own moral code,” the court plurality noted in Planned Parenthood of Southeastern Pennsylvania v. Casey. “The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter,” except perhaps in “rare circumstances.”

Stewart, the Mississippi lawyer, blithely assured the justices that the court’s abortion cases are unique, and that its other precedents, on contraception, gay rights or same-sex marriage wouldn’t be next in line if Roe and Casey fell. But why not? Maybe conservative activists have no burning desire to overrule Obergefell v. Hodges, the 2015 same-sex marriage ruling, but as a logical matter the right, without a basis in history or tradition, should be at least as vulnerable as abortion.

“I’m not sure how your answer makes any sense,” Justice Sonia Sotomayor told Stewart. “All of those other cases … rely on substantive due process. You’re saying there’s no substantive due process in the Constitution, so they’re just as wrong, according to your theory.”

***
And to withhold protection — in the current circumstance, to withdraw the protection that has existed for almost 50 years since Roe v. Wade — is not a neutral choice. It is a thumb on the scale.