The courts continue to attempt to decipher the intent of Congress when it revised the habeas corpus rules through its enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Prison Litigation Reform Act (PLRA).
In the Martin case, the First Circuit was called upon to determine whether the provisions of the PLRA (18 U.S.C. § 1915) require convicts to pay the full amount of the required filing fees in habeas corpus proceedings, since those proceedings are technically deemed to be civil proceedings. The First Circuit joined all the other Circuits that have addressed that issue to date; and concluded that the PLRA does not apply to habeas proceedings.
Judge Selya wrote that "no fewer than four pieces of evidence indicate that Congress did not intend the PLRA to intrude into the habeas realm. First, Congress . . . took dead aim at suits challenging conditions of confinement. . . . Second, Congress specifically addressed what it perceived to be habeas abuses in the [AEDPA] . . . and the abuses it enumerated did not include the non-payment of filing fees. . . . Third, extending the PLRA to habeas cases would . . . frustrate[ ] a storied tradition of reasonable access to habeas review. . . . Last, but not least, this drastic curtailment is largely unnecessary because the AEDPA itself effectively curbs frivolous habeas litigation through limits on successive petitions." (Id., at 874).
In the Stone case, the Fifth Circuit dealt with a slightly different, but related, issue: "whether a petition for mandamus is a civil action or an appeal, and therefore subject to the provisions of the PLRA." The Court observed that there is "no uniform notion of the writ [of mandamus] among the other circuits, but most consider it to be a form of appeal.." (Id., at 1033). It then stated that "the mandamus petition in this case is not an independent civil action, but may be considered a type of appeal. This does not end our inquiry, however, as the PLRA only applies to civil actions. In a mandamus proceeding, therefore, the nature of the underlying action will determine the applicability of the PLRA." (Id., at 1034). Since the instant mandamus action arose out of a § 2255 petition for post-conviction relief [a form of habeas relief], the Court concluded that it was not subject to the fee payment requirements of the PLRA. After all that, the Court still dismissed the mandamus petition. It noted that a mandamus proceeding is "reserved for extraordinary circumstances"; and it concluded that the petitioner had failed to make the requisite showings of the need for such extraordinary relief.
The plaintiff in this case brought a civil rights action against various officials, including a Town Justice, for false arrest, malicious prosecution and illegal confinement. The district court (Judge McAvoy) denied the judge's motion to dismiss on the grounds of judicial immunity; and the judge appealed. The Second Circuit reversed, essentially holding that the cloak of judicial immunity is not pierced by allegations of bad faith or malice, even though "unfairness and injustice to a litigant may result on occasion." (Id., at 932).
In its decision, the Second Circuit reviewed the principles that govern the concept of judicial immunity, particularly as enunciated in Stump v. Sparkman, 435 U.S. 349 (1978). In Stump, the Supreme Court had developed a two-part test for determining whether a judge is entitled to absolute immunity from damage claims. First, "[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction'." (Stump, id. at 356-57). Second, a judge is immune only for actions performed in his judicial capacity. Based on those tests, the Second Circuit dismissed the claims against the judge and reminded us that a judge "is absolutely immune from liability for his judicial acts even if his exercise of authority is seriously flawed by the commission of grave procedural errors."
This decision contains a detailed and interesting discussion about a citizen's constitutional right to travel. Here, a motorist brought a civil rights action (under 42 U.S.C. § 1983) against various police officers for damages arising from a "routine" traffic stop. During his initial arrest, the plaintiff, a black, was subjected to a brutal beating by a policeman who the court agreed was "out of control". The police quickly offered to dismiss all charges if the plaintiff would plead guilty to a misdemeanor assault. When he refused those terms, the plaintiff was subjected to a face-saving criminal proceeding and he was ordered to attend suspiciously frequent court appearances and to limit his travels to the State of New York.
When the criminal proceedings were finally dismissed (because they weren't prosecuted within the speedy trial time period), the plaintiff sued for damages. One of his claims was that the repeated court appearances (he had to appear in court eight times in 13 months) and the travel restrictions that had been imposed on him were malicious and so onerous that they amounted to an unlawful violation of his constitutional right to travel. For example, he argued that he was required to make so many court appearances that it caused him to miss work and ultimately lose his job.
A jury concluded that the criminal proceedings had been commenced without any probable cause, and it awarded the plaintiff a total of $50,000 in damages and almost $90,000 in legal fees. The police appealed, arguing that the repeated court appearances did not implicate any Fourth Amendment rights because there had been no unreasonable "seizure". The Second Circuit disagreed and upheld the jury's award. While the Court did not question the power of the state to restrict "a properly accused citizen's constitutional right to travel outside the state as a condition of his pretrial release", it firmly held that "[t]he liberty deprivations regulated by the Fourth Amendment are not limited to physical detention." (Id., at 945). Thus, since the restrictions imposed in this case constituted a "seizure" within the meaning of the Fourth Amendment, they had to be judged in light of whether they were reasonable or not; and on that basis the Court accepted the jury's determination that the criminal proceedings lacked probable cause and that the travel restrictions that had been imposed were unreasonable.
As part of its ruling, the Court observed that "a citizen's freedom to travel from state to state is a fundamental right that can properly be restricted only in the narrowest of circumstances"; and "while the constitutional underpinnings of the right to travel ‘throughout the United States' . . . are perhaps not found solely in the Fourth Amendment itself . . . [it is] a ‘basic right under the Constitution . . . occupying a position fundamental to the concept of our Federal Union'." (Id.) [For more on this topic, see the discussion on the Crea case below.]
Another interesting aspect of this case was the Court's ruling that the dismissal of the criminal proceedings for failure to comply with speedy-trial requirements constituted the type of "favorable termination" of the criminal proceedings required for malicious prosecution purposes. The Court agreed that "in the absence of a decision on the merits, the plaintiff must show that the final disposition is indicative of innocence." While it acknowledged that a dismissal based on speedy trial violations does not necessarily establish innocence, it noted that "the failure to proceed on the merits compels an inference of such unwillingness or inability to do so as to imply a lack of reasonable grounds for prosecution. (Id., at 949).
Back in 1993, the Tenth Circuit declared unconstitutional a jail policy in Davis County, Utah which entailed the automatic strip searching of all persons arrested on drug charges. (See, Cottrell v. Kaysville City, 994 F.2d 730 (10th Cir. 1993)). The Court expressly rejected the proposition that it is reasonable to strip search every inmate booked on a drug related charge. The good people from Davis County never even flinched. Despite the Tenth Circuit's ruling, a jail officer testified in this case that all persons arrested on drug charges are still subjected to strip searches. That arrogant refusal to abide by the law cost the police their taken-for-granted qualified immunity.
Plaintiff Kristin Foote had the temerity to drive a male passenger in her car who had "very long blond hair, and tattoos were visible on his arms because he was wearing a tank top." (Id., at 1419). The offended police pulled her over on some pretext and promptly decided that she must have been using drugs. She wasn't of course. No drugs were found; a urinalysis showed no indication of drugs; and she was never charged with any crimes. Nevertheless she was subjected to that degrading practice of a strip search. When she sued for damages, the police moved for summary judgment on the grounds of qualified immunity. Citing Cottrell, and the lack of any reasonable basis for the strip search, the Court held that the strip search violated clearly established law and denied the motion for summary judgment. Maybe, with the threat that they may have to pay damages from their own pockets, the police in Davis County will now put aside their personal prejudices and follow the law.
The defendant in this case argued that because her personal property had been forfeited in administrative proceedings, the district court should have granted her a downward departure in her sentence pursuant to U.S.S.G. § 5K2.0. The Tenth Circuit disagreed. It noted that the Sentencing Commission had adequately considered the hardship that a forfeiture could work "[b]y considering forfeiture in § 5E1.4 but not providing that forfeiture may be considered in setting a term of incarceration." (Id., at 1441). It also noted that several courts have observed that the fact that a defendant's property has been forfeited "does not demonstrate the reduced culpability that might warrant a reduction in the defendant's sentence." (Id.) Thus, it joined the Third, Fourth, Seventh and Ninth Circuits in concluding that the forfeiture of a defendant's property does not constitute a valid basis for a downward departure under the Guidelines.
One of the issues raised on this appeal was whether the district court had erred in ordering the defendants to pay restitution to the IRS for the "commissions" it paid to members of a conspiracy as compensation for their services in laundering drug money.
The defendants argued that the Government is not a "victim" for purposes of the Victim and Witness Protection Act (VWPA) (18 U.S.C. § 3663); and thus it may not be awarded restitution to the extent that it incurs costs in a sting operation to compensate a defendant for his services in facilitating illegal activities. Citing U.S. v. Meacham, 27 F.3d 214, 218 (6th Cir. 1994), the Court noted that the VWPA "aims to protect victims, not to safeguard the government's financial interest in funds used as bait to apprehend offenders." The Court also commented that the IRS is not a victim under the VWPA. "Instead of being defrauded, the IRS got what it paid for: the payment of commissions to [defendants] facilitated the illegal laundering transactions." (Id., at 1460).
Thus the Eleventh Circuit joined the First, Sixth, Seventh and Ninth Circuits in holding that the IRS is not entitled to restitution under the VWPA for the commissions it paid to the defendants as compensation for their services in laundering drug monies.
This is one of those sweeping, petulant decisions which deals with a topic that is becoming increasingly important - namely the conditions under which the growing hordes of ex-cons are required to live while they serve their mandatory terms of supervised release. At issue here were the 13 so-called "standard conditions" of supervised release that are set forth in U.S.S.G. § 5B1.4. Those conditions are also contained in the Probation Department's infamous "Probation Form 7A" which occupied much of the Court's attention. A copy of that Form 7A is attached to this decision. It merits special attention - and it should be reviewed in the context of how the Probation Department seeks to enforce those conditions.
In this case, after the defendant was released from prison, his probation officer presented him with the standard Form 7A and demanded that it be signed. The defendant signed under protest "pending a review and determination by the Court" of the scope and propriety of the conditions applicable to him. He argued, inter alia, that many of the conditions spelled out in Form 7A are "special conditions" that can only be imposed if the court spells out on the record the reasons for their imposition at the time of sentencing. Since the Court had failed to provide any such reasons, the defendant argued that the conditions were inapplicable to him and could not be imposed by the Probation Department. He also alleged that some of the conditions violated his rights to due process, privacy and movement, freedom of association, freedom from warrantless search and seizure, and his rights against self-incrimination.
Judge Johnson was visibly annoyed that an ex-con would dare to bother the Court about something as insignificant as the "very minor infringement[s] on [the] defendant's liberty." He viewed the defendant's efforts as "semantical manipulations . . . to escape the minor requirements of supervision. This, the Court will not allow." (Id., at 830). In the end, after carefully selecting some of the defendant's factual and legal arguments, and by ignoring the realties of others, Judge Johnson essentially concluded that all 13 of the standard conditions are reasonable and necessary in all cases for all probationers; and that a sentencing judge does "not have to justify their imposition on the record at sentencing."
Aside from its specific holding, Judge Johnson's decision raises a number of interesting and provocative questions. For example, one obvious question is why the sudden, feigned concern about "rehabilitating" the defendant only after he has been released from years in prison where rehabilitation was non-existent? Just this week, a court in Pennsylvania observed that: "It is well established that individuals serving criminal sentences have no constitutional right to rehabilitation while in prison . . . [nor any] constitutional right to various rehabilitative programs including drug treatment, employment, or other rehabilitation, education or training programs while in prison." McFadden v. Lehman, 968 F.Supp. 1001, 1004 (M.D.Pa. 1997). It would appear that the premise of our criminal justice system is to wait till the patient has been released from the hospital before commencing any treatment; and then the treatment prescribed is to insist on rigid adherence to 13 stone-cast rules that may or may not have any relevance to the crimes committed; monthly meetings with a probation officer; and the filing of lots of reports that remain unread until the Government wants to put the bloke back in prison.
Another question is if, as Judge Johnson so emphatically concluded, the 13 standard conditions automatically apply to everyone on supervised release, why is it then necessary to force the defendant to sign a contract with the Probation Office agreeing to those terms? The answer is that the source of the Government's power is often not the laws - but rather the thousands of unreadable, confusing and often deliberately deceptive Government forms that citizens are required to sign throughout their lives. As can be seen in the Quote of the Week below, at least several of the provisions contained in the Form 7A discussed in this case dramatically expanded the powers of the Probation Department beyond the applicable law. Yet, the Court ignored that and routinely approved the standard form because that was the easy way out.
A related question also arises: Are those contracts of adhesion really binding on the probationer? The law has long recognized the difference between submission and consent. When the probationer is faced with the prospect that any objections to Form 7A or non-compliance with the directives of his probation officer could lead to a revocation of his supervised release and additional jail time, does his "agreement" constitute a voluntary and enforceable consent?
Still another question raised is whether the court can properly abdicate its responsibility by delegating to the probation officer the task of determining which of the standard conditions will apply to the defendant. Judge Johnson's decision seems to espouse the strange rule that when the courts impose special conditions of probation they must make sure that the new condition is "reasonably and necessarily related" to the probationer's rehabilitation and the goal of protecting the public; but when the Probation Department wants to impose the same conditions on all probationers it need not make the same showing.
Finally, although it was never discussed
by Judge Johnson, some serious questions arise with respect to the provision
in Form 7A that dealt with restitution ordered in this case. The
defendant was directed to sign a contractual acknowledgment that he
was obligated to pay restitution in the amount of some $22,000 to the IRS
on a schedule to be determined by the Probation Office. The trouble
with that provision is that it is an illegal provision on at least three
separate grounds. First, as noted in the Khawajacase above, the IRS
cannot be a "victim" for purposes of the restitution statute. Second,
if the restitution was ordered because the defendant committed tax crimes
covered in Title 26 of the U.S. Code, then no restitution payments could
have been ordered by the court or the Probation Officer because the restitution
statute is limited to crimes under Title 18 of the U.S. Code and a few
drug crimes. Finally, the requirement that the Probation Officer
set the schedule of restitution payments violates the mandates of the Second
Circuit as set forth in U.S. v. Porter, 41 F.3d
68 (2nd Cir. 1994) and its progeny. Once the defendant
has signed that Form, the Government will certainly argue that he has waived
any right to object to the illegal provisions because he agreed to them
in writing.
Once again Judge Scheindlin has shown her mettle. In this case she courageously exposed and condemned a nasty game of judicial forum shopping by the prosecutors. After the State failed to convict the defendants on the same charges, the Government obtained an indictment against twelve defendants. Five days later it obtained an identical indictment against the defendant in this case, Eddy Carrasco. Two weeks later, both cases were randomly assigned to two different judges. When the Government appeared before Judge Mukasey, it advised him that it intended to seek a superseding indictment to add Carrasco to the original indictment. It conceded that both indictments charged the same drug conspiracy; and when the third consolidated indictment was obtained, it was a virtual carbon copy of the first two except that it included all the defendants. The Government never offered any plausible reason why it had chosen to bifurcate the case in the first instance, only to consolidate the case once it knew which judge would be assigned to each case.
Judge Scheindlin, who the Government had obviously carefully planned to avoid, dubbed the Government's conduct "very strange"; and she appropriately observed that "[t]he Government's conduct in indicting defendant separately and then re-indicting him for the same conduct in a separate indictment does not emit a pleasant odor. While there may be no discernable improper motive for this conduct, it is not hard to imagine a case where such would create real forum-shopping problems. . . . It is not appropriate for the Government to use the grand jury as a tool for making strategic decisions at the expense of the defendant's rights." (Id., at 951).
Although Judge Scheindlin refused to grant Carrasco's motion to dismiss the last indictment on the grounds that he had been twice indicted for the same offense in violation of the Fifth Amendment, she did order that Carrasco's case be severed from his recently-joined co-defendants (and as a result that case never went to trial). While she acknowledged the judicial preference to try together all defendants who have been indicted together, she also found that Carrasco would have been seriously prejudiced by being tried with his co-defendants. For example, she noted that Carrasco was prepared to go to trial immediately, whereas his co-defendants planned to file voluminous pre-trial motions. Thus, he would be held in prison for a lengthy time awaiting trial, which would not be the case if he were tried separately. She also noted that one of the co-defendants would testify for Carrasco if he were tried separately and that counsel had advised that such testimony would exculpate him. Finally, she noted the paucity of evidence against Carrasco; he had not been the subject of any wire-taps, searches or post-arrest statements - whereas all the other co-defendants had. Which only proves that tough counsel and a good judge can sometimes overcome the Government's outrageous shenanigans!
Let's look at a few of those conditions:
Condition 1 prohibits the defendant from leaving his judicial district without the permission of the court or the probation officer. In some geographically small districts, such as New York, a person living in Manhattan must get permission to watch a Mets game in Queens - or a football game five miles away in New Jersey; and a person living in Brooklyn needs permission to travel to Times Square or to Central Park to hear a free concert. Most Probation Officers rigidly and unreasonably refuse to give any blanket approval for such cross-city travel; and with more and more ex-cons being released each year the concept of freedom to travel - which the Second Circuit so emphatically endorsed in the Murphy case noted above - is rapidly becoming a myth. in Murphy the Court concluded that travel restrictions imposed on a person accused of a crime constitute a "seizure" within the meaning of the Fourth Amendment; and as such such restrictions are only valid if they are reasonable.
Condition 3 specifies that the probationer must "answer truthfully all inquiries by the probation officer." That requirement flies in the face of established law. As Justice Marshall observed in Minnesota v. Murphy, 465 U.S. 420, 442 (1984): "[I]f there is a chance that a truthful answer to a given question would expose the probationer to liability for a crime different from the crime for which he has already been convicted, he has a right to refuse to answer and the State may not attempt to coerce him to forgo that right. . . . As the majority points out, if the answer to a question might lead both to criminal sanctions and to probation revocation, the State has the option of insisting that the probationer respond, in return for an express guarantee of immunity from criminal liability. Unless it exercises that option, however, the State may not interfere with the probationer's right "to remain silent unless he chooses to speak in the unfettered exercise of his own will."
Condition 13 specifies that the probation must authorize the probation officer to notify all third parties that the defendant has a criminal record. That provision flies in the face of the Probation Department's own manual. While there are undoubtedly cases where such third-party risk notification is essential, as we saw last week in U.S. v. Ritter, 118 F.3d 502 (6th Cir. 1997), the Probation Department's official manual specifies that the third-party notification condition is a special condition of probation that normally should be imposed only by the court; and that if a Probation Officer decides to warn an employer of the defendant's criminal record and the probationer "strongly opposes such action, the officer should present the matter to the court and request either an order directing the officer to make the warning or a modification hearing to impose a condition that the offender make the necessary disclosure." (See, Ritter, id. at 506, n. 4).
Based on these thoughts, the only way to
combat the imposition of arbitrary and unreasonable conditions of supervised
release by the Probation department is to have defense counsel adopt its
own "standard rules" when dealing with Form 7A. Thus, all clients
should be advised not to sign any document presented by the Probation Department
unless and until it has been approved by counsel. In addition, if
the Probation Department continues to insist on imposing each of the 13
standard conditions on every probationer, regardless of his or her circumstances,
counsel should be prepared to file motions for a hearing on the reasonableness
and necessity of those conditions; and to request the court to explain
on the record whether and how those conditions meet the twin goals of probation:
rehabilitating the defendant and protecting the public.