In United States v. Lee, the Seventh Circuit recently held that a supervised release condition prohibiting a convicted defendant from interacting with known felons “unless granted permission to do so by the probation officer” impermissibly delegated Article III powers “relating to [the defendant’s] liberty interest in familial association.” (Because two of the defendants’ sons “are felons themselves,” the release condition “allow[ed] the probation officer—instead of the district judge—to determine whether [the defendant] can enjoy the company of his own children.”)
To determine whether a condition of supervised release violates the non-delegation rule, we distinguish between permissible conditions that merely task the probation officer with performing ministerial acts or support services related to the punishment imposed and impermissible delegations that allow the officer to decide the nature or extent of the defendant’s punishment.
In this case, the district court’s release condition gave the probation officer the power to determine “whether, when, and how [the defendant] can exercise his constitutional liberty interest in familial association,” which is “much more than a ‘ministerial act.’” Therefore, the Seventh Circuit vacated the release condition and remanded the case for further proceedings.
Yesterday, in United States v. Scripps, the Third Circuit held that an evidentiary hearing should have been held with respect to a convicted defendant’s motion for relief under 28 U.S.C. § 2255. The defendant claimed that his sentencing judge failed to personally address him during the sentencing proceeding, as required under Rule 32 of the Federal Rules of Criminal Procedure, and that his lawyer’s failure to raise that issue on appeal amounted to ineffective assistance of counsel.
District courts are required to hold evidentiary hearings unless a § 2255 motion “and the files and records of the case conclusively show that the prisoner is entitled to no relief.” United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005). Moreover, the Scripps panel noted that sentencing courts are required to personally address defendants, “and that no substitute for such a personal address will be permitted.”
In the absence of an evidentiary hearing on the defendant’s § 2255 motion, the Third Circuit determined that it could not determine whether appellate counsel had a strategic reason for failing to raise the Rule 32 issue. Moreover, because “there is a reasonable probability that we would have remanded for resentencing if counsel had raised the Rule 32 error on direct appeal,” the Third Circuit determined that the district court abused its discretion by summarily denying the defendant’s § 2255 motion without conducting an evidentiary hearing.
Law Professor Stephen Rushin’s 2017 study of police union contracts provides one possible answer. Rushin notes that these employment agreements are usually negotiated in secret, and that
municipal leaders may be strongly incentivized to offer concessions to police unions on disciplinary procedures in exchange for lower officer salaries. Because municipal expenditures can dominate local headlines, the result is a sort of moral hazard. Municipal leaders may be incentivized to offer concessions on police disciplinary procedures because they are less likely to bear the costs of those concessions in the immediate future. After all, the typical victim of police misconduct is often a member of a relatively small and politically disadvantaged minority of municipal voters. Stephen Rushin, Police Union Contracts, 66 Duke L. J. 1191, 1216 (2017).
Almost every major problem relating to American criminal justice can be traced to simplistic and self-defeating ideas about “deterrence.” This is no less true with respect to the sanctioned use of police brutality as a response to street protest. From Maggie Koerth and Jamiles Lartey of The Marshall Project:
Researchers have spent 50 years studying the way crowds of protestors and crowds of police behave—and what happens when the two interact. One thing they will tell you is that when the police respond by escalating force—wearing riot gear from the start, or using tear gas on protestors—it doesn’t work. In fact, disproportionate police force is one of the things that can make a peaceful protest not so peaceful. But if we know that (and have known that for decades), why are the police still doing it?
“There’s this failed mindset of ‘if we show force, immediately we will deter criminal activity or unruly activity’ and show me where that has worked,” said Scott Thompson, the former chief of police in Camden, New Jersey. Maggie Koerth & Jamiles Lartey, Why So Many Police Are Handling the Protests Wrong, The Marshall Project (June 1, 2020).
In United States v. Grey, the Court of Appeals for the Ninth Circuit recently upheld a district court order suppressing evidence that was recovered during an “administrative” inspection of the defendant’s home, where the “primary purpose” of that inspection was to gather evidence in support of a criminal investigation.
Under the Fourth Amendment, police may not search a person’s home without a warrant supported by probable cause. Of course, there are many “exceptions” to the warrant requirement. (As a practical matter, it might more accurate to say that the Fourth Amendment is a narrow exception to the general rule that police officials can do whatever they want with your property.) One of these exceptions is the “administrative search” rule, under which “government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.’” Grey, at 21 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). This means that a warrant is not generally required “where the search or seizure is in execution of an administrative warrant authorizing . . . an inspection of residential premises to ensure compliance with a housing code.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011)).
However, in Grey the Ninth Circuit confirmed that: (1) when an officer’s “primary purpose” in conducting an administrative search is to further a criminal investigation, and (2) where the officer’s “criminal investigatory motive plainly increased the intrusion on [the defendant’s] privacy interests,” the administrative search exception does not apply and the search violates the Fourth Amendment.
In United States v. Mario Nelson Reyes-Romero, a non-U.S. citizen who was previously deported to El Salvador was arrested and prosecuted for the crime of unlawful reentry. The district court found that DHS officers’ testimony about the prior deportation proceedings amounted to “a combination of nonsense . . . [and] lies,” and criticized the federal prosecutors for relying on that testimony and then failing to disavow it, in spite of applicable ethics standards that require prosecutors to correct witness statements that are obviously untrue.
The defendant then sued the government under the Hyde Amendment, and the district court granted him an award of $73,757 in fees and costs. Among other things, the district court found that inconsistencies in the immigration removal forms that were used in the prior deportation proceedings were so apparent that it was “frivolous” for the government to have charged him under the illegal reentry statute. Although district courts are ordinarily entitled to substantial discretion in granting or denying Hyde Amendment awards, the Court of Appeals for the Third Circuit reversed, stating that “the Hyde Amendment is not an appropriate vehicle to criticize the conduct of law enforcement officers or second-guess the management of a criminal prosecution.”
Unfortunately, there is no other viable “vehicle” for people to sue miscreant prosecutors or law enforcement officials. Despite the enormous amount of power they wield, they are almost entirely impervious to accountability. Prosecutors are absolutely immune from liability under the civil rights statutes, and police officers and other executive branch officials benefit from “qualified immunity,” which has become the practical equivalent of absolute immunity. While the Hyde Amendment purports to open a small crack in that wall of impunity, the Third Circuit’s Reyes-Romero decision sends an unmistakable message to district courts: if you dare to find a prosecutor liable then all deference to your findings of fact will go out the window.
While prison and jail inmates with underlying health conditions fight for compassionate release or reduced bail during the COVID-19 pandemic, many prosecutors are continuing to raise baseless and dangerous arguments that ought to draw the attention of their state bar committees. My personal favorite, which any judge with access to a reliable news source from the past two months should reject out of hand, is the risible claim that medically vulnerable inmates are safer in prisons than they would be in the outside world. Except for cases involving white collar offenders, where the government often does not object to the defendant’s release, I have seen very few federal cases where prosecutors did not make this ridiculous argument.
Another such argument is described by Sarah Stillman in this week’s issue of The New Yorker:
Prosecutors [in Orleans Parish, Louisiana] opposed some bond reductions, especially for defendants without a home address, arguing that, if they were released, they would “pose a threat to the general public by potentially spreading the virus to others.” This logic was pernicious; according to an open letter written by the dean of Tulane’s public-health school and other experts, the longer the parish delayed releases, the more genuine the threat of mass infection in the jail was—and thus the more likely it would be spread to the public.Sarah Stillman, “Compassionate Release,” The New Yorker (May 25, 2020)
Stillman also notes that the Orleans Parish D.A.’s office “said that it has instructed prosecutors to stop making this argument in bond hearings.” However, it is clear that federal prosecutors have received no such instruction. To the contrary, even in cases involving non-violent and elderly or medically vulnerable offenders, U.S. Attorney’s Offices are still telling judges that it would somehow benefit the public to keep those offenders locked up in crowded and unsanitary facilities where the virus spreads like wildfire.
In United States v. Parnell, the district court ordered a former federal employee to make restitution for the hundreds of fraudulent expense reimbursement forms she submitted between 2010 and 2016. The employee, who was indicted in August of 2017, argued that the five-year statute of limitations barred restitution for any expense form filed before August of 2012. But today the Second Circuit held that the Mandatory Victims Restitution Act of 1996 (18 U.S.C. § 3663A) authorizes sentencing courts to impose restitution for all “losses arising from criminal conduct in the course of a scheme, including acts outside the statute-of-limitations period, as long as those losses are attributable to the same underlying scheme, and as long as some part of th[e] scheme for which the defendant was convicted occurred within the statute of limitations.”
The defendant in Parnell pleaded guilty to wire fraud (18 U.S.C. § 1343), which includes, as an element, “a scheme to defraud.” Therefore, because the former federal employee’s wire fraud scheme fell within the five-year statute of limitations, the Second Circuit held that total amount of restitution included all of the losses suffered by the government during the course of that scheme.
 The Second Circuit panel noted that the Sixth, Ninth, and Eleventh Circuits have already held that MVRA restitution orders may include losses incurred prior to the five-year statute of limitations cutoff, citing to United States v. Ellis, 938 F.3d 757 (6th Cir. 2019), United States v. Anieze-Smith, 923 F.3d 565 (9th Cir. 2019), and United States v. Dickerson, 370 F.3d 1330 (11th Cir. 2004). The Second Circuit panel also noted that the Tenth Circuit “has reached the same conclusion, albiet in a non-precedential order,” citing United States v. Williams, 356 Fed. App’x 167 (10th Cir. 2009).
Last week, Reuters published a “Special Report” detailing how the Supreme Court’s “qualified immunity” doctrine has prevented thousands of people from suing police officers who have violated their civil rights. The Reuters report notes that “[e]ven as the proliferation of police body cameras and bystander cellphone video has turned a national spotlight on extreme police tactics, qualified immunity . . . is making it easier for officers to kill or injure civilians with impunity.”
Today, the U.S. Supreme Court considered thirteen separate certiorari petitions involving challenges to the “qualified immunity” standard. Orders from today’s conference are expected to be released on Monday, May 18. At that point, as Jay Schweikert of the Cato Institute writes, “we will finally know whether the Justices are prepared to confront one of the most pernicious and legally baseless doctrines in the history of the Court.”
For the third time, the prosecution of Ahmaud Arbery’s accused killers has been assigned to a new prosecutor. In addition, Georgia Attorney General Chris Carr recently asked the federal Department of Justice to investigate the evident problems with how the case has been handled thus far. Carr promised to provide his office’s “entire file regarding the appointment process for the prosecutors in this case and provide any assistance requested by the [DOJ].” In addition, as reported in the NYT:
Justice Department officials said on Monday they were weighing whether to bring federal hate crime charges, and had asked state officials to pass along relevant information as they consider bringing an investigation. “We will continue to assess all information,” Kerri Kupec, a Justice Department spokeswoman, said in a statement, “and will take any appropriate action that is warranted by the facts and the law.”Rick Rojas & Richard Fausset, Killing of Ahmaud Arbery is Switched to a Fourth Prosecutor, NY Times (May 11, 2020).
One can only hope that something positive comes out of the DOJ’s involvement in the Arbery case. Unfortunately, recent history has shown that the agency’s leadership is unlikely to view the murder of an innocent African American by a former police detective and his son, and the racially biased law enforcement response to that murder, as serious civil rights concerns.
Among other tragic cases, Arbery’s case recalls the killing of Eric Garner, who was choked to death by NYPD Officer Daniel Pantaleo in full public view as bystanders filmed the encounter and Garner repeatedly gasped “I can’t breathe.” For five full years, under both Presidents Obama and Trump, DOJ officials squabbled about whether to file criminal charges against Panatelo. Finally, on the day before the statute of limitations would have expired, U.S. Attorney Richard P. Donoghue of the Eastern District of New York announced that Pantaleo would not be charged with civil rights violations.
Every case is different, but many of the DOJ officials who saw the video of Garner’s killing and were able to convince themselves that Pantaleo had not “willfully” applied “objectively unreasonable force” will likely be involved in the federal investigation of the Arbery case. I hope to be proved wrong, but that does not bode well for a just outcome.