On April 9, 2008, President Bush signed the “Second Chance Act of 2007.” A summary of the Act is found at: http://www.whitehouse.gov/news/releases/2008/04/20080409-15.html.
In short, “the legislation formally authorizes key elements of the successful Prisoner Reentry Initiative (PRI), announced by the President in 2004, to help prisoners effectively reintegrate into the community. Additionally, the Second Chance Act enhances drug treatment, mentoring, and transitional services for ex-offenders through partnerships with local corrections agencies and faith-based and community organizations.” The Act allocates $360 million towards a variety of reentry programs. One of the main components of the bill is the funding of demonstration projects that would provide ex-offenders with a coordinated continuum of housing, education, health, employment, and mentoring services.
However, it will be up to Congress to appropriate the funds for this program. The success of this program, even with lofty hopes and goals, will depend on whether the Government will follow through with the necessary funding.
Monday, September 1, 2008
New Crack Cocaine Guidelines
The New “Crack Cocaine” Guidelines- an introduction
Recently, the United States Sentencing Commission amended the base offense levels applicable to cocaine base (“crack”) offenses. These amendments present an opportunity for those sentenced under the previous more punitive guidelines to petition the trial court for a reduction in sentence.
Change in guidelines
For many years, commentators have been concerned with the unwarranted disparity existing between Federal crack cocaine and powder cocaine sentences. Effective November 1, 2007, the United States Sentencing Guidelines Commission implemented Amendment 706 to the Sentencing Guidelines. Amendment 706 lowered the base offense levels applicable to cocaine base (“crack”) offenses. See http://www.ussc.gov/2007guid/appc2007.pdf.
The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders. On December 11, 2007, the Sentencing Commission voted to make Amendment 706 retroactive. See http://www.ussc.gov/PRESS/rel121107.htm. This decision became effective on March 3, 2008. Id.
Procedure
18 U.S.C. § 3582(c) provides: The court may not modify a term of imprisonment once it has been imposed except that— . . . (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
USSG §1B1.10 contains the policy statements concerning reduction of imprisonment as a result of amended guideline ranges. Effective March 3, 2008, a revised USSG §1B1.10 took effect. Amendment 706, as amended by Amendment 711, is now included in the list of amendments that may be applied retroactively. USSG §1B1.10 (c).
The major points included in USSG §1B1.10 are:
• In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment, the court “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced.”
• Except as provided in Subsection B, the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision.
• (B) Exception. If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate.
Northern District of Texas
In the Northern District of Texas, the Federal Public Defender’s Office has identified Defendants that may qualify for a reduction in sentence, and have mailed form motions to them to file pro se. It has yet to be determined if these individuals will be entitled to court appointed counsel in pursuing these reductions.
A number of these motions have been filed by both pro se prisoners and those able to afford counsel, and some have been granted. In United States v. Mosby, 3:03-CR-188-N(20), Northern District of Texas (Dallas), the Hon. David C. Godbey granted a motion to reduce the represented Defendant’s Term of Imprisonment from 57 to 46 months because of the crack cocaine guideline change over the Government’s objection. In United States v. Bell, 4:06-CR-073-A(01), Northern District of Texas (Ft. Worth), the Hon. John McBryde granted a motion to reduce a pro se Defendant’s term of imprisonment from 240 to 193 months because of the new crack guidelines. In the initial judgment, Judge McBryde had sentenced the Defendant below the applicable guideline range, and certified in his amended sentence order that the “reduced sentence is comparably less” than the amended guideline range.
It is likely that the judges will be called upon to rule on many of these types of motions in the near future. It is unknown, however, as to how many of these persons will be appointed counsel to assist in the preparation and argument of these motions and what the position of the United States Attorney will be in response to these motions.
Recently, the United States Sentencing Commission amended the base offense levels applicable to cocaine base (“crack”) offenses. These amendments present an opportunity for those sentenced under the previous more punitive guidelines to petition the trial court for a reduction in sentence.
Change in guidelines
For many years, commentators have been concerned with the unwarranted disparity existing between Federal crack cocaine and powder cocaine sentences. Effective November 1, 2007, the United States Sentencing Guidelines Commission implemented Amendment 706 to the Sentencing Guidelines. Amendment 706 lowered the base offense levels applicable to cocaine base (“crack”) offenses. See http://www.ussc.gov/2007guid/appc2007.pdf.
The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders. On December 11, 2007, the Sentencing Commission voted to make Amendment 706 retroactive. See http://www.ussc.gov/PRESS/rel121107.htm. This decision became effective on March 3, 2008. Id.
Procedure
18 U.S.C. § 3582(c) provides: The court may not modify a term of imprisonment once it has been imposed except that— . . . (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
USSG §1B1.10 contains the policy statements concerning reduction of imprisonment as a result of amended guideline ranges. Effective March 3, 2008, a revised USSG §1B1.10 took effect. Amendment 706, as amended by Amendment 711, is now included in the list of amendments that may be applied retroactively. USSG §1B1.10 (c).
The major points included in USSG §1B1.10 are:
• In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment, the court “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced.”
• Except as provided in Subsection B, the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision.
• (B) Exception. If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate.
Northern District of Texas
In the Northern District of Texas, the Federal Public Defender’s Office has identified Defendants that may qualify for a reduction in sentence, and have mailed form motions to them to file pro se. It has yet to be determined if these individuals will be entitled to court appointed counsel in pursuing these reductions.
A number of these motions have been filed by both pro se prisoners and those able to afford counsel, and some have been granted. In United States v. Mosby, 3:03-CR-188-N(20), Northern District of Texas (Dallas), the Hon. David C. Godbey granted a motion to reduce the represented Defendant’s Term of Imprisonment from 57 to 46 months because of the crack cocaine guideline change over the Government’s objection. In United States v. Bell, 4:06-CR-073-A(01), Northern District of Texas (Ft. Worth), the Hon. John McBryde granted a motion to reduce a pro se Defendant’s term of imprisonment from 240 to 193 months because of the new crack guidelines. In the initial judgment, Judge McBryde had sentenced the Defendant below the applicable guideline range, and certified in his amended sentence order that the “reduced sentence is comparably less” than the amended guideline range.
It is likely that the judges will be called upon to rule on many of these types of motions in the near future. It is unknown, however, as to how many of these persons will be appointed counsel to assist in the preparation and argument of these motions and what the position of the United States Attorney will be in response to these motions.
Wednesday, January 23, 2008
The Effect of the Adam Walsh Child Protection and Safety Act of 2006 on Immigrants and Immigration Law
This is an article I wrote for the newsletter for the Dallas Chapter of the Federal Bar Association on the effect of the Adam Walsh Child Protection and Safety Act of 2006 on Immigrants and Immigration Law:
On July 27, 2006, President Bush signed into law the “Adam Walsh Child Protection and Safety Act of 2006.” (PL 109-248 [HR 4472], 120 Stat 587)(Hereinafter, “The Act”). The Act’s purpose is to “protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.” See Preface, PL 109-248.
The Act seeks to establish a comprehensive national system for the registration of certain criminal offenders. See Sec. 102 of the Act, codified at 42 U.S.C § 16901. Specifically, “sex offenders” are required to register with the appropriate local or state government registry. See Sec. 113 of the Act, codified at42 U.S.C § 16913.
A “sex offender” is defined as “an individual who was convicted of a sex offense.” See Sec. 111(1) of the Act, codified at 42 U.S.C § 16911. The term “sex offense” includes any offense (or conspiracy to commit that offense) that “has an element involving a sexual act or sexual contact with another,” any offense “that by its nature is a sexual offense against a minor” and many federal crimes, including those prohibiting sex abuse (Chapter 109A of Title 18, USC), sexual exploitation of children (Chapter 110 of Title 18, USC) and transportation for illegal sexual activity (Chapter 117 of Title 16, USC). See Sec. 111(5)(a) of the Act, codified at 42 U.S.C. § 16911.
The Act provides for strict reporting requirements upon such conviction and for the Justice Department to create a national registry of sex offenders. See Sec. 113(b) of the Act, codified at 42 U.S.C § 16913; Sec. 119 of the Act, codified at 42 U.S.C § 16919. Under the Act, a failure to register is itself a federal crime punishable by fine or imprisonment not more than ten years, or both. See Sec. 141 of the Act, codified at 18 U.S.C § 2250(a)(3).
The Act specifically targets immigrants in a number of ways. First, the Act does not limit its registration requirement to those who committed crimes within the United States. Thus, persons who were convicted of such offenses outside the United States presumably must register. However, the Act provides:
(B) FOREIGN CONVICTIONS.--A foreign conviction is not a sex offense for the purposes of this title if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established under section 112.
Section 112(b) of the Act provides that the Attorney General shall issue guidelines and regulations to interpret and implement this title. See 42 U.S.C § 16912. However, these regulations have not been issued, so the definition of “sufficient safeguards” has yet to be determined.
Second, the Act provides:
The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States who are required to register under this title. The Secretary of State and the Secretary of Homeland Security shall provide such information and carry out such functions as the Attorney General may direct in the operation of the system.
See Section 128 of the Act, codified at 42 U.S.C § 16928. Again, the Act provides no further details as to how this information is to be gathered or obtained.
Third, Section 401 of the Act amends Section 237(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)(A) by inserting a new clause: "(v) . . . Any alien who is convicted under section 2250 (failure to register as a sex offender} of title 18, United States Code, is deportable."
Fourth, Section 402 of the Act amends Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)) to bar U.S. citizens and Legal Permanent Residents (LPRs) convicted of any “specified offense against a minor” from having family based immigration petitions approved, “unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described . . . is filed.” Unfortunately, Congress does not provide instruction as to how the Secretary is to make this determination.
Fifth, Section 402 of the Act further amends Section 101(a)(15)(K) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)) to flatly prohibit a U.S. citizen convicted of any “specified offense against a minor” from sponsoring an alien for admission to the United States under a fiancé (K) Visa.
In sum, the Act broadens and toughens the penalties and consequences for sex offenders. Immigrant sex offenders (and the spouses and fiancés of U.S. citizen or LPR offenders) are not spared, and are specifically targeted for increased scrutiny and sanctions, without the benefit of clear guidelines or interpretive regulations.
On July 27, 2006, President Bush signed into law the “Adam Walsh Child Protection and Safety Act of 2006.” (PL 109-248 [HR 4472], 120 Stat 587)(Hereinafter, “The Act”). The Act’s purpose is to “protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.” See Preface, PL 109-248.
The Act seeks to establish a comprehensive national system for the registration of certain criminal offenders. See Sec. 102 of the Act, codified at 42 U.S.C § 16901. Specifically, “sex offenders” are required to register with the appropriate local or state government registry. See Sec. 113 of the Act, codified at42 U.S.C § 16913.
A “sex offender” is defined as “an individual who was convicted of a sex offense.” See Sec. 111(1) of the Act, codified at 42 U.S.C § 16911. The term “sex offense” includes any offense (or conspiracy to commit that offense) that “has an element involving a sexual act or sexual contact with another,” any offense “that by its nature is a sexual offense against a minor” and many federal crimes, including those prohibiting sex abuse (Chapter 109A of Title 18, USC), sexual exploitation of children (Chapter 110 of Title 18, USC) and transportation for illegal sexual activity (Chapter 117 of Title 16, USC). See Sec. 111(5)(a) of the Act, codified at 42 U.S.C. § 16911.
The Act provides for strict reporting requirements upon such conviction and for the Justice Department to create a national registry of sex offenders. See Sec. 113(b) of the Act, codified at 42 U.S.C § 16913; Sec. 119 of the Act, codified at 42 U.S.C § 16919. Under the Act, a failure to register is itself a federal crime punishable by fine or imprisonment not more than ten years, or both. See Sec. 141 of the Act, codified at 18 U.S.C § 2250(a)(3).
The Act specifically targets immigrants in a number of ways. First, the Act does not limit its registration requirement to those who committed crimes within the United States. Thus, persons who were convicted of such offenses outside the United States presumably must register. However, the Act provides:
(B) FOREIGN CONVICTIONS.--A foreign conviction is not a sex offense for the purposes of this title if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established under section 112.
Section 112(b) of the Act provides that the Attorney General shall issue guidelines and regulations to interpret and implement this title. See 42 U.S.C § 16912. However, these regulations have not been issued, so the definition of “sufficient safeguards” has yet to be determined.
Second, the Act provides:
The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States who are required to register under this title. The Secretary of State and the Secretary of Homeland Security shall provide such information and carry out such functions as the Attorney General may direct in the operation of the system.
See Section 128 of the Act, codified at 42 U.S.C § 16928. Again, the Act provides no further details as to how this information is to be gathered or obtained.
Third, Section 401 of the Act amends Section 237(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)(A) by inserting a new clause: "(v) . . . Any alien who is convicted under section 2250 (failure to register as a sex offender} of title 18, United States Code, is deportable."
Fourth, Section 402 of the Act amends Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)) to bar U.S. citizens and Legal Permanent Residents (LPRs) convicted of any “specified offense against a minor” from having family based immigration petitions approved, “unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described . . . is filed.” Unfortunately, Congress does not provide instruction as to how the Secretary is to make this determination.
Fifth, Section 402 of the Act further amends Section 101(a)(15)(K) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)) to flatly prohibit a U.S. citizen convicted of any “specified offense against a minor” from sponsoring an alien for admission to the United States under a fiancé (K) Visa.
In sum, the Act broadens and toughens the penalties and consequences for sex offenders. Immigrant sex offenders (and the spouses and fiancés of U.S. citizen or LPR offenders) are not spared, and are specifically targeted for increased scrutiny and sanctions, without the benefit of clear guidelines or interpretive regulations.
Thursday, November 1, 2007
Forensic Interview Problems in Sex Assault Cases
In child sex abuse cases, emotions run extremely high. In a recent trial I defended in Collin County, Texas, a 4 year old child made an "outcry" to her mother the night of alleged offense, but the next day, in a forensic interview, denied she was ever abused. Two days later, at the insistence of the mother, the child was reinterviewed and, after careful prompting and leading questions, accused my client of sex abuse.
The danger of such evidence is that the child's testimony then (and later) could be forever colored or "implanted" by improper interviewing techniques. The New Jersey Supreme Court in State v. Michaels, 642 A.2d 1372 (N.J. 1994) acknowledged this problem. In Michaels, a daycare worker was convicted of sex abuse based in large part on very leading and inappropriate questioning by the examiner of very young children:
In Michaels, the New Jersey court recognized that "the use of highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events." Id. at 1379. The court stated that the concern with the reliability of statements resulting from suggestive or coercive interview techniques 1 implicates "principles of due process." Id. at 1380. The court placed the initial burden to trigger a pretrial taint hearing on the defendant, who must make a showing of "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques. Once the defendant establishes sufficient evidence of unreliability of statements at the pretrial hearing, the burden shifts to the state to prove reliability of proffered statements and testimony by clear and convincing evidence. Id. at 1383.
Johnson v. State, 2004 Tex. App. LEXIS 10133 (Tex.App.-Waco 2004). In the case we tried, we argued that even though the Michaels' test has not been adopted in Texas, there was enough evidence to require a "taint" hearing. The judge, to his credit, indicated that while he did not think the transcripts showed that there was enough improper questioning to suppress the testimony of the child, agreed to let us make a record.
The following day, we called our own forensic psychologist who indicated that, based on the foregoing, "some evidence" did exist that the statements were the product of suggestive or coercive interview techniques. The judge unexpectedly held that we had met our burden under Michaels, and required the State to call their examiner to prove the reliability of the proffered statements. At that point, we was able to cross the examiner and had, in this case, something to talk about. Following this, the State offered a plea to a deferred adjudication to a much reduced sentence (without sex offender registation), which the client accepted.
The danger of such evidence is that the child's testimony then (and later) could be forever colored or "implanted" by improper interviewing techniques. The New Jersey Supreme Court in State v. Michaels, 642 A.2d 1372 (N.J. 1994) acknowledged this problem. In Michaels, a daycare worker was convicted of sex abuse based in large part on very leading and inappropriate questioning by the examiner of very young children:
In Michaels, the New Jersey court recognized that "the use of highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events." Id. at 1379. The court stated that the concern with the reliability of statements resulting from suggestive or coercive interview techniques 1 implicates "principles of due process." Id. at 1380. The court placed the initial burden to trigger a pretrial taint hearing on the defendant, who must make a showing of "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques. Once the defendant establishes sufficient evidence of unreliability of statements at the pretrial hearing, the burden shifts to the state to prove reliability of proffered statements and testimony by clear and convincing evidence. Id. at 1383.
Johnson v. State, 2004 Tex. App. LEXIS 10133 (Tex.App.-Waco 2004). In the case we tried, we argued that even though the Michaels' test has not been adopted in Texas, there was enough evidence to require a "taint" hearing. The judge, to his credit, indicated that while he did not think the transcripts showed that there was enough improper questioning to suppress the testimony of the child, agreed to let us make a record.
The following day, we called our own forensic psychologist who indicated that, based on the foregoing, "some evidence" did exist that the statements were the product of suggestive or coercive interview techniques. The judge unexpectedly held that we had met our burden under Michaels, and required the State to call their examiner to prove the reliability of the proffered statements. At that point, we was able to cross the examiner and had, in this case, something to talk about. Following this, the State offered a plea to a deferred adjudication to a much reduced sentence (without sex offender registation), which the client accepted.
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