Interesting en banc opinion

 It's not every day that you see an en banc opinion authored by two judges on the 11th Circuit.  Even rarer is for that combination to be Chief Judge Pryor and Judge Martin.  But they team up in this case, with Judge Newsom dissenting.

From the joint en banc intro:

WILLIAM PRYOR, Chief Judge, and MARTIN, Circuit Judge, delivered the opinion of the Court, in which WILSON, JORDAN, ROSENBAUM, JILL PRYOR, GRANT, LAGOA, BRASHER, and BLACK, Circuit Judges, joined. 

WILLIAM PRYOR, Chief Judge, and MARTIN, Circuit Judge:

In 2013, Conraad Hoever was incarcerated at the Franklin Correctional Institution (FCI) in Carrabelle, Florida. According to Mr. Hoever’s complaint, correctional officers there subjected him to harassment and threats of physical violence in retaliation for his filing grievances about his mistreatment. Proceeding on his own (without counsel), Mr. Hoever successfully defended against the officers’ attempts to dismiss his case, and he was ultimately able to present his claim of First Amendment retaliation to a jury. After a three-day trial, during which the jury heard testimony from Mr. Hoever, the defendant officers, and witnesses who corroborated the threats, the jury returned a verdict in Mr. Hoever’s favor. But vindication of Mr. Hoever’s constitutional rights was limited. That is because this circuit has interpreted the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e), as barring punitive damages for a prisoner’s civil action where no physical injury is shown. The jury, therefore, awarded Mr. Hoever only one dollar in nominal damages.

Our circuit stands alone in enforcing § 1997e(e) as a complete bar to punitive damages, no matter the substantive claim, in the absence of physical injury. Because our interpretation runs counter to the text of the statute, today we correct our course. We now recognize that §1997e(e) permits claims for punitive damages without a showing of physical injury. 

And here's how the dissent starts:

NEWSOM, Circuit Judge, joined by BRANCH, Circuit Judge, and joined in Parts I and III by LUCK, Circuit Judge, concurring in the judgment in part and dissenting in part:

There is a subtle but important difference in how the Court and I read 42 U.S.C. § 1997e(e). In the phrase “civil action . . . brought . . . for mental or emotional injury suffered while in custody,” the Court sees a distinction between requests for compensatory damages, which it says are covered, and requests for punitive damages, which it holds are not. I can’t find that compensatory-punitive divide in the statutory text. As I read it, § 1997e(e) doesn’t distinguish between different forms of monetary relief, but rather between different forms of harm. In particular, the dispositive question, to my eye, is simply whether an inmate-plaintiff ’s action concerns “mental or emotional injury,” as opposed to some other kind of injury. To the extent that it does, I would hold—contra the Court—that § 1997e(e) precludes him from recovering either compensatory or punitive damages unless he has made the statutorily required showing of “physical injury.” To the extent, by contrast, that the inmate’s suit alleges injuries that are not“mental or emotional,” I would hold that § 1997e(e) permits him to seek both compensatory and punitive damages.

Bonus Podcast Episode of For the Defense with Judge Jed Rakoff

 I'm excited to let you know that we have a bonus episode of For the Defense that has been released this morning. It's an interview with Judge Jed Rakoff about his book: Why the Innocent Plead Guilty and the Guilty go Free.  The book is a fascinating set of essays that Judge Rakoff wrote about the craziness of our criminal justice system.  We discuss those essays, including the trial tax, sentencing, the death penalty, how to get the system back on track, and other really great issues during our talk. 

You can check out the bonus episode on Apple, Spotify, and Google,  All other platforms, including a regular desktop player, can be accessed on our website. And you can pick up a copy of Judge Rakoff's book here.






It's also not too late to catch up on Seasons 1 and 2 of For The Defense.  If you have a friend that would like to receive these updates, please have them sign up here.

 

Hosted by David Oscar Markus and produced by rakontur

Sandra Feuerstein, judge in EDNY, dies in Boca car crash

 This is just awful.  The driver was a woman named Snape, who said she was Harry Potter.  

CNN covers the tragedy here:

A woman has been arrested in connection to a hit-and-run accident that killed federal judge Sandra Feuerstein and injured a 6-year-old in Boca Raton, Florida, on Friday.
Nastasia Andranie Snape was arrested Saturday and faces charges of vehicular homicide, leaving the scene of a crash involving death and leaving the scene of a crash with injury, according to jail booking records from the Palm Beach County Sheriff's Office.
CNN has been unable to determine if Snape is represented by an attorney who would comment on her behalf.
Feuerstein was a judge for the US District Court in the Eastern District of New York.

More from the Sun-Sentinel:

Snape didn’t stop until she reached Delray Beach, where officers found her unconscious inside her vehicle, which had crashed at an intersection, arrest documents state.
As a Delray Beach Police officer approached the crashed car, “he could see Snape begin to convulse and have seizure-like movements,” the report said.
Snape came to shortly thereafter, but was unable to make eye contact or hold conversation. Once inside an ambulance, she “began to scream and fight with medics stating that she was ‘Harry Potter,’” the report read.

The paramedics had to give Snape 400 milligrams of Ketamine to calm her down. At the hospital, officers found a designer drug known as “T” in her purse, the report said.

Jury trials continued until July

 So says Chief Judge Moore in the latest administrative order.  I've heard chatter that this will be the last extension and I've also heard some people saying that there will be at least one more.  Who knows! I guess it depends on how these pilot trials go.

RIP Alcee Hastings, a true legend

 This is very sad news.  He was a great guy and public servant.  RIP.

The Sun-Sentinel has the sad news here:

Congressman Alcee Hastings, whose life was marked by perseverance, calamity and a comeback, has died. He was 84.

Hastings crusaded against racial injustice as a civil rights lawyer, became a federal judge who was impeached and removed from office, and went on to win 15 congressional elections, becoming Florida’s senior member of Congress.

He died Tuesday morning, a longtime friend said.

In late 2018, Hastings was diagnosed with Stage 4 pancreatic cancer. For much of the ensuing two years, he continued public appearances between medical treatments, but more recently he hadn’t been in public. In recent days, he had been in hospice care.

More to follow.

Sen. Grassley throws another wrench into the judicial selection process

 He sent this letter to Middle District of Florida Chief Judge Corrigan railing against the Middle District's decision to post on its website the "House based" JNC's notice and application process.  Our District quickly took down the same links on its website.  

From the letter (footnotes omitted):

By posting this notice, your Court is giving credibility to the “Commission” against the stated views of Senators Rubio and Scott. For example, there is no similar announcement for how interested parties can reach out to Florida’s U.S. Senators. The Middle District of Florida is, therefore, taking a side in a pending, partisan political dispute. As a result the federal judiciary has found itself in the middle of a purely political conflict between the House, the Senate, and the President. This bodes ill for its perceived independence. 

I have the following questions for you. 

1. At whose request did you place this notice on the Middle District’s website? 

2. Were you aware that Florida’s Senior Senator, Marco Rubio, said of this “Commission,” “We can’t stop Joe Biden from consulting with whomever he wants in picking nominees, but this effort has no legitimacy in our eyes with regards to our advise-and-consent role.” 

3. Were you aware that Florida’s Junior Senator, Rick Scott, upon hearing of this “Commission,” wrote to President Biden to oppose this “attempt[] [by House Democrats] to insert themselves into the nomination process”?

4. Did you consult with either Senator Rubio or Scott before issuing your Court’s announcement about the “Commission”? 

5. What, if any, ethics advice did you receive before announcing the House “Commission” on the Middle District’s website?

6. Will you agree to take remedial action in order to prevent the appearance of partisan political activity on the part of your Court? In particular, will you (a) remove the notice about the House “Commission” and (b) issue a further notice that the Court takes no part in or position on the nomination process for federal office in Florida? If not, why not? 

The complaint that "there is no similar announcement for how interested parties can reach out to Florida's U.S. Senators" is strange.  Have Rubio or Scott announced how they intend to vet candidates?  I'm sure the MDFLA would be fine posting that information as well. The problem, though, is that Scott has said he will try to block any Biden nominee.  I wonder if Grassley has a problem with that.

Trial penalty exposed in New York

 We all know it exists everywhere, but NACDL is doing a nice job exposing the trial penalty.  Here's the latest report about the penalty in New York. It has 15 recommendations.  Here are the first 3:

1. Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statutes, compassionate release legislation, and an expanded clemency process that ensures sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances, including extraordinary rehabilitation.
2. Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights, like the right to appeal, and ensure that criminal defense organizations have the resources to provide a zealous defense.
3. Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore further how the trial penalty manifests in New York state.

Sixth Circuit reverses above-guideline sentence

 And that's not an April Fool's joke!

Here's the opinion.

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

It was a 2-1 decision, with Judge Thapar dissenting.