Vol. 10, No. 21	Covering Cases Published in the Advance Sheets through May 26, 2003

Highlights of this Issue:

Supreme Court

• In Bazzetta, a unanimous Court upheld strict restrictions imposed by the State of Michigan four years ago on the right of prison inmates to receive visits from family members and acquaintances. In so doing it summarily rejected the Sixth Circuit’s assertion that the regulations in question fell below “the minimum standards of decency owed by a civilized society to those who it has incarcerated.” Since 21 states filed amicus briefs in support of the Michigan restrictions on visiting, we assume this decision will be followed by a rash of new regulations seeking to emulate - if not top - the Michigan approach.
  
  
• In Sell, by a vote of 6 to 3, the Court held that the Government has only a limited right to force mentally-ill defendants charged with nonviolent crimes to take antipsychotic drugs to make them competent to stand trial.

Harmless Error - Yet Another New Standard

• In Montalvo, a panel from the Ninth Circuit held that, although the defendant was entitled to raise a challenge to his CCE conviction based on the retroactive application of the Supreme Court’s decision in Richardson v. U.S., he was not entitled to habeas relief based on the Richardson error because the error was harmless - based on the reviewing court’s “sensitive judgment” of the evidence presented.

Anti-Terrorism

• In the Center for Natl. Security Studies case, a sharply divided panel from the D.C. Circuit reversed a lower court ruling that required the Government to release the names of the more than 700 persons detained in the aftermath of 9/11. While the majority argued that the executive branch was entitled to a “heightened deference” in matters of national security, Judge Tatel, in his dissent, argued that, by accepting the Government’s “vague [and] poorly explained allegations,” the majority had “converted deference into acquiescence.”

Guidelines

• In Booe, Judge Collier of the E.D.Tenn. granted a generous nine level downward departure, on the grounds of aberrant conduct, to a pregnant, single mother of a one-year old child who robbed a bank.

Unpublished Decisions

• The Correa-Gomez case from the Sixth Circuit is another example of one of the evils of unpublished decisions. Here, in a decision that addressed only an inconsequential procedural issue, the Court noted, without explanation, that it had also affirmed a significant ruling on selective prosecution - but only in an unpublished decision. That tactic deprives the defense bar of a valuable precedent on an important issue - and raises questions as to why such decisions are relegated to unpublished status.

Overton v. Bazzetta, No. 02-94 (U.S. Sup. Ct. 06/16/2003) (Justice Kennedy)

In Bazzetta v. McGuinnis, 148 F.Supp.2d 813 (E.D.Mich. 2001) (Bazzetta I), Judge Nancy Edmunds addressed a series of new regulations adopted by the Michigan prison system (MDOC) governing the eligibility of visitors at Michigan prisons. The new regulations: (1) banned visits from prisoners' minor brothers, sisters, nieces and nephews; (2) banned all visits by prisoners' children when parental rights had been terminated; (3) banned all visits by former prisoners who were not immediate family; (4) required that visiting children be accompanied by a parent or legal guardian, and (5) permanently banned visitors, apart from attorneys and clergy, for prisoners who twice violated the department's drug abuse policies.

The prisoners affected by the new regulations filed a class action challenging the regulations on a number of constitutional grounds. After a bench trial, Judge Edmunds found for the plaintiffs “on all claims.” In general, she found that the regulations limiting visits were imposed capriciously and according to no reviewable standards; that they infringed on prisoners' right of intimate association; and that they were not reasonably related to a valid penological objective. She also found that some of the regulations constituted cruel and unusual punishment in violation of the Eighth Amendment, and were imposed in a manner violating prisoners' due process rights.

The Sixth Circuit affirmed, in a decision reported at 286 F.3d 311 (6th Cir. 2002) (P&J, 05/06/02) (Bazzetta II). With unusually strong language, the Sixth Circuit concluded that the MDOC had “implemented a series of haphazard policies that violated [some basic constitutional rights of the plaintiffs] and did real harm to inmates in its care.” (Bazzetta II, id., at 323). It also concluded: “In the present case, the regulations fall below the minimum standards of decency owed by a civilized society to those who it has incarcerated.” (Id., at 324).

Michigan appealed that ruling to the Supreme Court and, significantly, it was joined by 21 other states which filed briefs supporting Michigan’s right to impose restrictions on prisoner visits. By a rare unanimous vote, the Supreme Court reversed - and, reading its decision, one gets the feeling the Justices were looking at regulations totally different than those discussed in Bazzetta I and II - or at least the Justices seemed to ignore most of the factors that were so severely criticized by the lower courts.

For example, after noting that the lower courts had concluded that the challenged regulations “infringe a constitutional right of association,” the Court simply ducked any further discussion of that issue by stating “This is not an appropriate case for further elaboration of those matters.”

Certainly, the Court took a far broader view of the problems alluded to by the lower courts; and it seemed content in dealing with most of the issues with highly generalized statements: e.g., “The very object of imprisonment is confinement”; and “Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner.”

Much of the Court’s decision is merely a rehash of the Court’s frequently expressed views that the courts (a) should not substitute their own judgement for that of prison officials; and (b) should not micro-manage the administration of the prisons. More specifically, while the Court agreed that some of the regulations at issue were “severe,” it concluded that the regulations “bear a rational relation to legitimate penological interests” and “are not a dramatic departure from accepted standards for conditions of confinement.”

The Court also noted that inmates barred from seeing relatives through a glass panel could, after all, still write or call. While illiteracy, expense or the age of young children might make those alternatives problematic, "alternatives to visitation need not be ideal," Justice Kennedy said; "they need only be available."

In a separate concurring opinion, Justices Thomas and Scalia disputed the premise that the Constitution had anything at all to say about visitation rights or conditions of confinement in general.

The decision reminds us of two very different views of prisoners as expressed by the Supreme Court over the years. In Atiyeh v. Capps, 449 U.S. 1312, 1325 (1981), Justice Rehnquist brushed off some complaints by prisoners by stating: “Nobody promised them a rose garden.” And in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987), a more concerned Justice Brennan wrote: “Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadowworld that only dimly enters our awareness. They are members of a ‘total institution’ that controls their daily existence in a way that few of us can imagine. . . . It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity.”

Sell v. U.S., No. 02-5664 (U.S. Sup. Ct. 06/16/2003) (Justice Breyer)

In U.S. v. Sell, 282 F.3d 560 (8th Cir. 2002) (P&J, 04/08/02) (Sell I), a divided panel from the Eighth Circuit held, as a matter of first impression, that the Government could, subject to certain limitations, forcibly administer antipsychotic drugs to a pretrial detainee for the purpose of rendering him competent to stand trial.

The Supreme Court granted certiorari to consider whether the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant - in order to render that defendant competent to stand trial for serious, but nonviolent, crimes. In this decision, by a 6 to 3 vote, the Court held that the Government only has a limited right to force non-violent defendants to take such medication to make them competent for trial. Since it concluded that the Eighth Circuit did not find that the requisite circumstances existed in Sell I, it vacated that decision.

The defendant in this case, Charles Sell, a dentist from Missouri, had a long history of mental illness and at least one stint in a mental hospital, where he was treated with antipsychotic drugs. In 1997, he was charged with 56 counts of mail fraud, six counts of Medicaid fraud, and (of course) one count of money laundering. Both Government and defense psychologists diagnosed him as suffering from “delusional disorder, persecutory type”; and it was agreed that he was incompetent to stand trial because he was unable to understand the nature and consequences of the proceedings against him and to assist in his defense.

Since 1999, Sell has been committed to the BOP’s medical facility in Springfield, MO awaiting trial, as required by 18 U.S.C. § 4241(d). Shortly after his arrival, the medical staff at Springfield recommended that Sell be given antipsychotic medication. Sell refused; and that refusal led to the instant appeal.

Prior to this decision, the two leading precedents on the use of forced medication were Washington v. Harper, 494 U.S. 210 (1990) and Riggins v. Nevada, 504 U.S. 127 (1992), where the Court held that a criminal defendant has a basic, constitutionally protected “liberty interest” in avoiding unwanted antipsychotic medication. However, the court went on to hold in those cases that the defendant’s liberty interest can be trumped by the Government’s interest in bringing a defendant to trial on serious charges. Even then, the Court held that the Government may involuntarily administer antipsychotic drugs only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial's fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.

Neither Harper nor Riggins directly addressed the issues presented by the instant case: how to strike a balance when the defendant has been charged with a nonviolent offense and had been found not to pose a danger when confined in an institution. Under those circumstances, the Court held that the “involuntary administration of drugs solely for trial competence purposes” should occur only “in limited circumstances.” The Court then effectively set a checklist for the Government to meet: the Government must have an “important” interest in bringing the defendant to trial and the use of such drugs must “significantly further” the Government’s goal of bringing the case to trial; the use of antipsychotic drugs must be in the defendant’s best medical interest and be the least intrusive remedy available; and the treatment must be “substantially unlikely” to cause side effects that would compromise the fairness of the trial.

While this decision is not expected to have a wide impact, it should be noted that treating inmates with antipsychotic drugs is not an uncommon practice. According to the Department of Justice, during a recent 12-month period, 285 Federal defendants were found to be mentally incompetent to stand trial. The BOP recommended that antipsychotic drugs be given to all 285 inmates; and 226 voluntarily accepted that treatment. Of the remaining 59 who were treated against their will, most did not seek any judicial review. The DOJ did not indicate whether those 59 inmates were told that they had any rights to seek such a review.

For an interesting commentary on this decision, see "If Sanity if Forced on a Defendant, Who is on Trial?," by Daphne Eviatar, The New York Times, June 21, 2003.

Center for Natl. Security Studies v. DOJ, No. 02-5254 (D.C. Cir. 06/17/03) (Judge Sentelle)

In this case a bitterly divided panel from the D.C. Circuit upheld the right of the Government to refuse to disclose to the press and the public any information about the more than 700 persons arrested in the aftermath of the 9/11 attacks. In so doing, the Court reversed an earlier ruling by Judge Gladys Kessler, reported at 215 F.Supp.2d 94 (D.D.C. 2002), in which she ordered the Department of Justice to release the names of those still being detained by the Government as well as the names of their attorneys.

That order came in a lawsuit filed by several civil liberties groups who sought disclosure of that information based on the Freedom of Information Act (FOIA). The Government opposed that disclosure, arguing that it was entitled to an exception under the FOIA that permitted it to withhold information relating to continuing law-enforcement investigations, and that, in any event, it did not have to disclose any information about persons being detained on immigration violations. And, with brazen chutzpah, it even expressed concern that such disclosures would violate the privacy rights of those detained.

In setting the stage for her order, Judge Kessler stated: “Secret arrests are ‘a concept odious to a democratic society,’ and profoundly antithetical to the bedrock values that characterize a free and open one such as ours. . . . The animating principle behind the Freedom of Information Act is safeguarding the American public's right to know what ‘their Government is up to.’ In enacting that statute, Congress recognized that access to government records is critical to earning and keeping citizens' faith in their public institutions and to ensuring that those institutions operate within the bounds of the law.” (Internal citations omitted).

Significantly, she sharply questioned the plausibility of the Government’s assertion that national security would be compromised by the requested disclosures, particularly since the Government itself had emphasized that the detainees were free to inform whoever they wanted of their detention. In light of that fact, she concluded that it was “implausible that terrorist groups would not have figured out whether their members have been detained.”

In rejecting Judge Kessler’s factual findings and conclusions, the majority simply stated that the courts were “in an extremely poor position to second-guess” the Government in the field of national security - and it emphasized the need for the judiciary to show absolute deference to the executive branch.

In a stirring dissent, Judge Tatel agreed that, while it was “obvious” that the courts owed a heightened deference to the executive branch in matters relating to national security, such deference “is not equivalent to acquiescence. By accepting the government’s vague, poorly explained allegations, and by filling in the gaps in the government’s case with its own assumptions about facts absent from the record, this court has converted deference into acquiescence.”

He concluded that the majority’s “uncritical deference” to the will of the Government “eviscerates both the FOIA itself and the principles of openness in government that FOIA embodies”; and he stated: “Just as the government has a compelling interest in ensuring citizens’ safety, so do citizens have a compelling interest in ensuring that their government does not, in discharging its duties, abuse one of its most awesome powers, the power to arrest and jail.”

In Brief

Aliens: U.S. v. Tinoso, 327 F.3d 864 (9th Cir. 2003) - Joining six other Circuits (the First, Second, Fourth, Fifth, Tenth and Eleventh), the Ninth Circuit held that a district court exceeds its authority, under 18 U.S.C. § 3583(d), by ordering, as a condition of supervised release, the immediate and automatic deportation of an alien convicted of a crime without a deportation hearing.

Apprendi: Sepulveda v. U.S., No. 01-2755 (1st Cir. 05/29/2003) - Here the Court held that the Apprendi rule has no retroactive effect on cases on collateral review; and that Apprendi does not fit within one of the "hen's-teeth rare" exceptions established under Teague v. Lane, 489 U.S. 288 (1989).

Evidence: U.S. v. Bailey, 327 F.3d 1131 (10th Cir. 2003) - Case is noted for its lengthy discussion and analysis of whether Rule 408 of the Fed.R.Evid. bars the admission of settlement evidence in both civil and criminal proceedings. Here, joining the position taken by the Fifth Circuit, the Tenth Circuit concluded the Rule bars settlement evidence in both types of proceedings (although here the error was held to be harmless). The Second, Sixth and Seventh Circuits have held that Rule 408 applies only to civil proceedings.

Guidelines: U.S. v. Joaquin, 326 F.3d 1287 (D.C. Cur. 2003) - Here a divided panel vacated a sentence and remanded for resentencing because the district court committed plain error in denying a motion for a downward departure based in part on the defendant’s “prior arrest record” - since that factor is expressly precluded from consideration by the language of U.S.S.G. § 4A1.3. Judge Henderson dissented, arguing that there was no error, plain or otherwise.

Copyright © 2003 Punch and Jurists, Ltd.