Friday, May 19, 2006

Judicial Recommendation to BOP for up to 6 Months Halfway House - Will the BOP Listen?

Prior to December 2002, the Bureau of Prisons allowed an inmate to be placed in a Community Corrections Center (CCC, a.k.a. halfway house) up to six months, regardless of the total length of the inmate’s sentence. On December 13, 2002, the Office of Legal Counsel for the Department of Justice issued a memorandum stating that the practice was not consistent with 18 U.S.C. § 3624(c), which in its opinion, limited an inmate’s placement in a halfway house to the lesser of six months or ten percent of the inmate’s sentence. The BOP adopted this interpretation of the statute. In light of decisions in other circuits, Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004), and Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004), the created new regulations noting the BOP could exercise its discretion to "designate inmates to CCC confinement only . . . during the last ten percent of the prison sentence being served, not to exceed six months," requiring that it consider various factors (resources of the facility contemplated, the nature and circumstances of the offense, the history and characteristics of the prisoner, any statement by the court that imposed the sentence, concerning the purpose for the sentence for the sentence of imprisonment was determined to be warranted, or recommending a type of penal or correction facility as appropriate, and any policy statement issued by the Sentencing Commission. 28 C.F.R. § 470.20-21.

Recently, two circuits have ruled the BOP’s February 2005 regulation invalid as it restricts its discretionary transfer and placement in a halfway house to those serving the last 10% of their incarceration term. See Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006); Woodall v. Fed. BOP, 432 F.3d 235 (3d Cir. 2005). These courts ruled that the BOP’s interpretation fails to consider the § 3621(b) factors "by excluding an entire class of inmates – those not serving the final ten percent of their sentences – from the opportunity to be transferred to a CCC." Fults, 442 F.3d at 1092.

In light of this developing law, it is recommended that among the request for judicial recommendations to be made at sentencing should be that the Bureau of Prisons consider placement of the client at a halfway house for 6 months. Several district courts are willing to include judicial recommendations (to include the 500-hour drug and alcohol - DAP - program, psychological treatment, vocational and educational training, participation in UNICOR, etc.). In the wake of Booker and the developing case law to "fix" Booker, a judicial recommendation of this sort will make a different to your client, especially if it is honored by the BOP. One client of this office has written asking for such a judicial recommendation, noting that his counselor explained to him that the BOP likely would honor the recommendation given his circumstances (completed 40-hour drug treatment program but he did not have a lengthy enough sentence for acceptance and completion of the 500-hour DAP program). Additions of judicial recommendations are more difficult after the entry of the judgment, and therefore, it is advisable to ask for these recommendations in the front end. Let's ask for the judicial recommendations then see if the BOP will listen.

"Ding Dong the Witch is dead?"

The trend of late in the Sixth Circuit Court of Appeals has been to cite to the "rebuttable presumption" language of United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) when affirming a criminal sentence upon appellate review, while still examining the sentencing process and findings of the district court. This reasoning has created confusion in the standard for appellate review of criminal sentences in the Sixth Circuit and has led many to question whether there is a split within the Circuit with respect to the correct standard. (See Sumter Camp's post "Williams' 'Per Se' Rule Clarified" February 8, 2006).

Just one of a number of examples of this confusion exists in the unreported case of United States v. John Jackson, 2006 WL 1208063, *1+, 2006 Fed.App. 0298N, 0298N+ (6th Cir. May 1, 2006). In this case, the defendant's sentence was affirmed over the defendant's claim that the "rebuttable presumption" was "overcome." The defendant argued that the presumption had been rebutted "because the court did not duly 'consider' the sentencing factors listed in 18 U.S.C. § 3553." In affirming the sentence, the Court cited to Williams, and stated: "[a]s this sentence is within the advisory guidelines range, it is credited with a rebuttable presumption of reasonableness." Yet, the panel still examined the district court's review process and reasons for imposing the sentence and determined that the district court had "clearly articulatet[ed] the reasons for the sentence imposed."

Perhaps today's opinion in United States v. Daniel Morris, -- F.3d --, No. 05-1623 (6th Cir. May 19, 2006), (opinion available here), sounds the death knell for the "rebuttable presumption." In a well reasoned and articulated concurrence, Judge Clay wrote:

The majority opinion cites United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), for the proposition that a sentence within the Guidelines range creates a "rebuttable presumption" of reasonableness. While the majority goes on to note that this "rebuttable presumption" does not relieve the district court of its obligation to articulate its sentencing rationale, I believe that the Williams' "rebuttable presumption" language is surplusage in light of controlling Sixth Circuit precedent that the district court must consider the §3553 factors and provide this Court with some indication that it has properly done so. See United States v. Webb, 403 F.3d 373, 385 n.8, n.9 (6th Cir. 2005)(requiring the district court to provide a reasoned explanation for its sentence and rejecting the proposition that a sentence within Guidelines ranges is per se reasonable). The Guidelines range is only one of a number of factors which §3553 requires sentencing judges to consider. Without an adequate statement from the sentencing court that it properly considered other relevant §3553 factors, and not just the Guidelines range, a sentence should not be credited with a "rebuttable presumption" of reasonableness.
Judge Clay continued by citing to Judge Martin's explanation of "Williams' proper place" in United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006). Judge Clay concluded his concurrence with a forward looking desire for future panels to essentially abandon the "rebuttable presumption" when conducting appellate review of criminal sentences in the Sixth Circuit. Judge Clay wrote:

Hopefully, future panels of this Court will not attempt to use the "rebuttable presumption" language of Williams as semantic leverage simply to avoid the considered appellate review we are duty-bound to perform. It should be remembered that Circuit precedent which antedates Williams requires district courts to consider all relevant §3553 factors and make a record which provides this Court with some indication that such consideration was properly undertaken. See Jackson, 408 F.3d 305; Webb, 403 F.3d at 385 n.8, n.9.
The future of the "rebuttable presumption" in the Sixth Circuit continues to dim. Hopefully, as more panels conduct appellate review of criminal sentences, the "rebuttable presumption" will die, or at least fade away. . . .

Friday, May 05, 2006

Is Anyone Really Listening?

Do judges really listen to defense lawyers and give deference to their opinions, particularly where the subject matter relates to the defense lawyer’s opinion as an officer of the court? Two Sixth Circuit cases that were decided in April shed some light on this burning question.

First, the question came up in the context of a competency issue from a state court proceeding in Filiaggi v. Bagley, 04-3513 (4/14/06). In Filiaggi, the stun belt defendant was to wear during his state murder trial accidentally discharged. As a result, the defendant was evaluated by a psychologist who concluded that he was competent, but that further testing may be warranted. Based upon this information, and the testimony from a deputy guarding the defendant, the court decided that he was competent and proceeded to trial. The defendant’s two attorneys (one of whom was also a medical doctor!) then repeatedly, and incessantly, requested further psychological testing of the defendant because they both felt that defendant was incompetent to stand trial. All requests for further competency evaluations were denied and defendant was ultimately convicted and sentenced to death.

On appeal to the Sixth Circuit from the denial of the habeas petition, Judges Batchelder and Gibbons ruled that no further competency testing or hearing was required and affirmed the conviction. In so holding, the court noted: "Although the evidence before the court was mixed, evidence in favor of finding [the defendant] incompetent came solely from his attorneys." Id.

Judge Cole, writing in dissent, took the majority to task for discrediting the representations of the two attorneys for the defendant: ""Yet when defense counsel – one of whom was a licensed physician and all of whom were, in the words of the Ohio Supreme Court, ‘officers of the court whose assertions cannot be dismissed,’ – repeatedly asked for further evaluation upon specific, verifiable, and relevant bases, the trial court repeatedly denied the requests." Id.

Although the Sixth Circuit majority in Filiaggi completely discredited the two defense attorneys’ opinions, the court took a much more favorable view of a defense attorney’s judgment in Gillard v. Mitchell, 03-4261 (4/26/06). Defendant and his brother were being investigated for murder. An attorney undertook representation of the brother during the course of the state investigation, and the brother ultimately was not prosecuted. Defendant, however, was charged with murder and the same attorney represented him throughout his court proceedings. At defendant’s state murder trial, the attorney called the brother as a witness. The prosecutor objected, claiming that the attorney may have a conflict of interest. The attorney told the court that he did not feel a conflict existed. Based upon the attorney’s representation, the court allowed him to proceed. Nonetheless, just to be safe, the court appointed separate counsel for the brother during his testimony.

Eventually, in a habeas petition, defendant claimed that his attorney acted under an actual conflict of interest and that he was ineffective for failing to raise the defense that the brother, not defendant, was the perpetrator of the offense. The district court granted habeas relief on this ground. On appeal Judges Siler, Daughtrey, and Sutton found that the attorney was not operating under an actual conflict of interest. The miraculous nature of this conclusion aside, of importance for this blog is that the court emphasized how the trial court "properly deferred to [the attorney’s] judgment that no conflict existed." Id.

It would seem that an attorney’s concern that her client may be incompetent and an attorney’s opinion regarding a conflict of interest among her clients both are matters that rely on the attorney’s representations as an officer of the court, as opposed to the attorney’s role as advocate. Yet in Gillard, the attorney’s opinion that he had no conflict (when it would appear that he obviously did) was entitled to deference, while in Filiaggi, the two attorneys concerns that their client was not competent to proceed were discredited. Reading the two decisions, one is left with the distinct feeling that a defense attorney’s opinion is important when it happens to fit within the court’s agenda in deciding the case, but that it otherwise may be completely disregarded. Or maybe I read too much into this, and should simply remind myself of the important, unwritten, long-standing principle of jurisprudence: The law is always construed against the obviously guilty defendant.