Vol. 10, No. 28	Covering Cases Published in the Advance Sheets through July 14, 2003

Highlights of this Issue:

Appeal Waiver Provisions Held "Unconscionable"

• Chief Judge Mullen of the W.D.N.C. has entered a remarkable Order in the Plea Agreements case. He held that the waivers of appeal provisions, which are now inserted in virtually every Federal plea agreement, are “unconscionable” and, based on that, he concluded that plea agreements containing such provisions will no longer be accepted in his courtroom. That controversial ruling is certain to resurrect some broad challenges to the fairness and the enforceability of a Government practice that forces criminal defendants to give up their rights of appeal - before they even know what their sentences will be - as a condition of seeking the benefits of a plea bargain.

Guidelines - The Feeney Amendment

• In the VanLeer case, recently-appointed Judge Cassell of the D.Utah granted a four-level “lesser harms” downward departure to a defendant convicted of possession of a firearm by a convicted felon. What is most noteworthy about Judge Cassell’s decision was his sweeping and unabashed apologia of the Feeney Amendment. For example, he claimed that “none” of the reforms put into effect by the Feeney Amendment “restrict the ability of a district court to depart downward (or upward).” He also took issue with oft-voiced suggestion that the Attorney General is intent on creating a “black list” of judges who are too lenient on criminals - stating that it was unclear whether such a provision would ever even take effect. Almost as soon as the ink was dry on his opinion, the press buried Judge Cassell’s optimistic prediction of the Attorney General’s honorable intentions by noting that General Ashcroft has now taken concrete and specific steps to implement just such a “black list” as a means of limiting judicial independence.

The Inscrutible Immigration Laws

• In Drax, the Second Circuit addressed a complex and highly technical immigration case that the courts have been trying to resolve for years. To its “regret and astonishment,” the Court concluded that it was still unable to resolve the issues before it due to the never-ending “maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the government and petitioners alike” and that typify the “dark thicket” and “labyrinthian character of modern immigration law.”

Attorney Misconduct and the Tolling of Statutes of Limitation

• In Baldayaque, the Second Circuit clarified a prior ruling and held that a combination of due diligence by the petitioner, coupled with attorney conduct that is “sufficiently egregious,” may be sufficient to allow the district court to invoke the doctrine of equitable tolling and rescue a habeas petition pursuant to 28 U.S.C. § 2255 that was not timely filed under the one-year limitation period specified in the AEDPA.

Notice to Subscribers: The next issue of P&J will be posted on August 22, 2003.

In Re Plea Agreements, No. 3:03-MC-67 (W.D.N.C. 06/04/03) (Judge Mullen)

For a ruling that is as revolutionary as it is evolutionary, Chief Judge Mullen’s Order in this case was remarkably brief and to the point. The full text of his Order, which is available on the District Court’s Web site at http://www.ncwd.net/documents/303mc00067.1.bsw.pdf, reads as follows:

“THIS MATTER comes before the Court upon its own motion.

An increasing number of plea agreements in criminal cases contain a waiver of all rights to appeal. An example of such a waiver follows:

‘The defendant knowingly and expressly waives the right to contest either the conviction or the sentence in any direct appeal or other post-conviction action, including any proceeding under 28 U.S.C. § 2255; provided further, the waiver shall not apply to rights based on allegations of ineffective assistance of counsel or prosecutorial misconduct. Furthermore, the defendant expressly and explicitly agrees and understands that the provisions of this paragraph are totally to the benefit of the United States and totally to the detriment of the defendant; that is, the United States preserves all its rights and duties with respect to appeal as set forth in 18 U.S.C. § 3742(b), while the defendant waives all rights to appeal or collaterally attack the sentence or conviction.’

The undersigned is of the opinion that such agreements are unconscionable. As a result, the undersigned will no longer accept plea agreements containing such waiver provisions. (Emphasis added.)

Therefore, the Magistrate Judges of this District are hereby directed to inform all criminal defendants whose cases are pending before the undersigned that plea agreements containing such waivers will not be accepted by the Court.”

With those brief words but powerful words, Judge Mullen has threatened the foundations of a practice that gives enormous tactical advantages to Federal prosecutors who have aggrandized to themselves the right to demand that, if a criminal defendant wants to achieve the benefits of a plea bargain, he must first waive all rights to appeal both his conviction and sentence (even before he knows what his sentence will be), while the Government retains all of its rights of appeal.

When asked to comment on his ruling, Judge Mullen told the Charlotte Observer that he did not think that the Federal practice was “right.” He said: “Defendants have to take their chances with judges and the government does not. Even in guilty pleas, judges can make mistakes.”

It should be noted that, despite such occasional (and often impassioned) outbursts against the fairness of waivers of appeal provisions, to date every Circuit Court of Appeals that has addressed the issue has upheld the validity of such waivers. (See, e.g., U.S. v. Andis, No. 01-1272 (8th Cir. 06/27/03) (P&J, 06/09/03)). Judge Mullen’s ruling, however, represents a new challenge to the Government’s power since it is the first time we have seen the fairness of this standard practice tied to the Government’s insistence that it can and will play to a different set of rules from those it imposes on defendants. We will follow the upcoming battle of the Department of Justice v. Judge Mullen with great interest; and we will report any future developments as they occur.

U.S. v. VanLeer, No. 2:03-CR-00127-PC (D.Utah 07/03/2003) (Judge Cassell)

In this decision, Judge Cassell has written a lengthy apologia in defense of the recently enacted Feeney Amendment, in which he challenges the oft-voiced criticism that the Feeney Amendment unduly eliminates judges’ discretion in sentencing Federal criminal defendants. Not only does he conclude that such a premise is false, Judge Cassel also attempts to argue that “none of the [Feeney Amendment] reforms restrict the ability of a district court to depart downward (or upward).” (Emphasis added).

Background of Judge Cassell

In evaluating this decision, one should remember that Judge Cassell, a recent and highly controversial appointee to the Federal bench, is a darling of the conservative right wing. He started his legal career as a law clerk for Justice Antonin Scalia, when Scalia was a Court of Appeals judge; and Cassell is considered a protege and a close associate of Scalia.

In 1999, the conservative right wing orchestrated a major challenge to the Supreme Court’s landmark decision in Miranda v. Arizona, 384 U.S. 436 (1966), where that Court established the requirement that police must inform those being held as criminal suspects of their right to remain silent and of their right to legal counsel prior to any interrogation. Cassell has been a long-time and outspoken critic of Miranda. He has consistently argued that Miranda was wrongly decided; that it has unduly “handcuffed” the police; and that it should be reversed. (See, e.g.,Paul G. Cassell and Richard Fowles, “Handcuffing the Cops?: A Thirty-Year Perspective on Miranda’s Harmful Effects on Law Enforcement,” 50 Stanford L. Rev. 1055 (1998)).

Acting on behalf of the Washington Legal Foundation, a conservative public-interest organization, Cassell led the attack against Miranda in Dickerson v. U.S., 530 U.S. 428 (2000). Presumably, at the urging of Justice Scalia, Cassell, then a professor of law at the University of Utah, was appointed to file a “friend of the court” brief in support of the position that Miranda should be reversed. In his brief, Cassell argued that Congress had actually legislated away the Miranda requirements in an obscure1968 statute (18 U.S.C. § 3501), which states that police warnings are not required for a suspects statement to be admitted into evidence, so long as the confession is “voluntary.”

Section 3501 had been dormant on the books for more than 30 years because every administration, from Nixon to Clinton, considered that law an unconstitutional infringement on the civil rights of those in custody. At the last minute, even the Bush administration urged the Supreme Court not to overrule Miranda - and, by a 7 to 2 vote in Dickerson, the Supreme Court held that Miranda established a rule of "constitutional dimension" that could not be abrogated by an Act of Congress. Justices Scalia and Thomas were the lone dissenting votes. After Dickerson was decided, Cassell was rewarded for his work by his appointment to the Federal bench in Utah - an appointment that was highly contentious.

In light of that background, one might consider whether Judge Cassell is again undertaking a similar activist role in the instant case in order to praise and preserve the Feeney Amendment.

Facts of the Instant Case

The defendant, Paul VanLeer, pled guilty to a charge of possession of a firearm by a convicted felon. His Guideline sentencing range called for a sentence of 30 to 37 months in prison. At sentencing, he moved to have the court grant him a downward departure , pursuant to the provisions of U.S.S.G. § 5K2.11 (“Lesser Harms”), a provision that allows a departure where the crime did not “threaten the harm or evil” ordinarily covered by the statute at issue.

Several weeks after VanLeer was released from prison after serving time on a forgery charge, he was, according to Judge Cassell, “destitute and needed money for rent” (a situation, we submit, is probably no different than that faced by 90% of ex-cons after their release from prison). In any event, at that point, VanLeer met a friend to whom he had loaned a shotgun just prior to his imprisonment. The friend gave the shotgun back to VanLeer, who immediately took it to a pawn shop and sold it. An investigator for the local police, in checking the pawn shops records, discovered that VanLeer was a previously convicted felon - and that led to the filing of the instant criminal charges against VanLeer.

Looking at those facts, Judge Cassell concluded that VanLeer’s felon-in-possession charge resulted from his attempt at “dispossessing himself of a firearm” - and for that reason he granted VanLeer a four-level downward departure, and sentenced him to 18 months in prison - reasoning that the departure was “roughly proportionate to the six-level downward departure that the guidelines authorize in other circumstances for unlawful possession of a firearm for lawful sporting circumstances, under U.S.S.G. § 5K2.1(b).

The Feeney Amendment

In granting that departure, Judge Cassell stated that he “found it necessary” to review at length the impact of the Feeney Amendment on his decision - particularly “because hyperbolic claims about how departure authority has been ‘eliminated’ in ‘all cases’ can be positively harmful to individuals awaiting sentencing. If criminal defense attorneys believe such statements and operate under the misapprehension that downward departures are no longer permissible, they might refrain from filing departure motions in appropriate cases. This could lead to criminal defendants serving unduly long prison terms (not to mention inappropriately consuming valuable federal prison space that should be reserved for other offenders). It is therefore critically important that defense counsel understand the narrow parameters of the Feeney Amendment and continue to file motions for downward departure where appropriate.”

Judge Cassell started his analysis by acknowledging that, when Congressman Feeney originally proposed his sudden and undebated amendment to the popular Prosecutorial Remedies and Tools Against the Exploitation of Children Today (“PROTECT”) Act, he clearly intended to restrict downward departures in all cases. However, after the House approved the original version of that bill, the matter went to a House-Senate Conference Committee to work out the language of the differing versions of the PROTECT Act. While pending there, “a variety of diverse commentators expressed their concern about various aspects of the Feeney Amendment.”

Judge Cassell then noted that, as a result of such concerns, the Conference Committee” reached a bi-partisan compromise, which substantially narrowed the breadth of the Feeney Amendment. . . . The compromise version . . . made the most restrictive limitations on downward departures applicable only to certain child crimes and sex offenses.” He then continued:

“As finally approved by Congress, the Feeney Amendment makes a variety of changes related to sentencing procedures. The Amendment expands appellate review of sentencing departures [and] alters the procedures to be used following remands in such cases. The Amendment further requires a formal government motion before awarding a defendant a three-level reduction for accepting responsibility (instead of the normal two-level reduction). In an effort to gain additional data about the sentencing guidelines, the Amendment directs the Chief Judge of each district to submit information about sentencing judgments to the Sentencing Commission, which in turn makes it available to Congress if so requested. The Amendment also directs the Sentencing Commission to promulgate, within 180 days after enactment of the Amendment, new guidelines that ‘ensure that the incidence of downward departures are substantially reduced’ and a new policy statement ‘authorizing a downward departure of not more than 4 levels if the Government files a motion or such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney." Finally, the Amendment directs the Attorney General to take certain steps toward aggressively appealing improper downward departures.

“None of these reforms restrict the ability of a district court to depart downward (or upward). The Feeney Amendment does, however, make one limited change in the ability of district courts to depart downward in child abduction and sex offense cases - a limited change that has been described in dramatically different terms. For example, a prominent journal circulated to defense attorneys seemingly suggested that the Feeney Amendment ‘essentially eliminates judges' discretion to depart below the Guidelines in all cases.’ This description is not accurate, as the brief review of legislative history just recited makes clear. The Feeney Amendment ultimately adopted by Congress is substantially narrower than originally proposed. For child abduction and sex offenses, the Amendment does limit downward departures to the grounds specifically listed in the sentencing guidelines for these offenses. But for all other offenses - such as the felon-in-possession offense at issue here - the Feeney Amendment makes no change. As Senator Hatch, the Chairman of the Judiciary Committee and member of the Conference Committee on the Act explained: ‘The compromise agreed to in conference will affect only crimes against child and sex crimes - that is, sexual abuse, pornography, prostitution, and kidnaping/hostage taking. These types of cases represent only 2 percent of the federal criminal case load’.” (Emphasis added).

Of equal interest were some of Judge Cassell’s comments on the much talked-about provisions of the Feeney Amendment that were designed to intimidate judges into becoming passive waifs of the Department of Justice. Judge Cassell admitted that, during the limited debate that took place on the Feeney Amendment, Senator Leahy did argue that:

“The amendment effectively creates a judicial ‘black list’ of judges that stray from the draconian mandates of this bill. The [final] language retains the Feeney amendment's attempt to intimidate Federal judges by compiling a ‘hit list’ of all judges who impose sentences that the Justice Department does not like in any type of criminal case. It takes a sledge hammer to the concept of separation of powers.”

However, Judge Cassell dismissed such charges as a “hyperbolic” overreaction. In support of the honorable intentions of the Attorney General, he stated:

"The basis for contention about a ‘black list’ appears to be the provision in the Feeney Amendment requiring the Attorney General to submit a report to the House and Senate Judiciary within 15 days whenever a district court judge departs downward in a case (other than for reasons of substantial assistance to the government). This report would identify the judge who departs by name. It is unclear whether this provision will ever take effect, however, because its effective date has been suspended for 90 days and, if the Attorney General take steps to ensure ‘vigorous pursuit of appropriate and meritorious appeals’ of unjustified downward departures it appears that the provision is suspended indefinitely. Even were such a provision to take effect, however, the overriding fact remains that judicial departure decisions (like any other judicial action) are already matters of public record. This court's sentencing decisions, for example, are all easily available both in the court's public files and on an internet website, www.utd.uscourts.gov. In any event, since the suggestion has been raised, this court wishes to observe that it is not concerned about close scrutiny of its downward (or upward) departure decisions by Congress, the public, or otherwise.”

It would appear that Judge Cassell’s optimistic predictions about the Feeney Amendment’s “hit list” were short lived. Last week, the press widely reported that the Justice Department has now implemented plans to monitor Federal judges who grant downward departures under the Guidelines - a move that the press described as “an effort to limit judicial independence.” (See, e.g., "Justice Department to Monitor Judges for Sentences Shorter Than Guidelines Suggest,” by Eric Lichtblau, The New York Times, August 8, 2003.)

Despite the valiant and partisan efforts of Judge Cassell, we suspect the debate about the wisdom and fairness of the Feeney Amendment will continue.

Quote of the Week

We recently received an e-mail from the ever-perceptive David Beneman, the CJA Resource Counsel from Maine, in which he observed that incarceration in America is “out of control.” He then wrote: “We have turned into a society bent on retribution. Punishment. We are told that ‘justice means prison.’ We are lectured constantly by our leaders on the need for ever increased ‘accountability.’ That is the buzz word for blame. It’s someone else’s fault and they must pay. Meanwhile the federal government as well as most states are millions of dollars in the red. What is wrong with this picture?”

A confluence of several recent events precipitated those comments. First, the Bush administration recently announced that it was seeking an 8.3 percent increase in spending for the Federal Bureau of Prisons to $4.66 billion, making it the largest item in the budget of the Department of Justice. Second, the Department of Justice recently released new statistics showing that the United States continues to lead the entire world in incarceration - both in absolute numbers and on a per capita rate - despite a steady and dramatic decline in crime rates in general for much of the past decade. Third, the press has been filled with stories to the effect that both the states and the Federal governments are so hard-pressed by the present economic decline that they are both cutting back on the funds that are available to provide counsel for criminal defendants and the funds needed to pay jurors for their services (although, so far, that cutback has only impacted civil trials).

Since the country seems so bent on maintaining the highest (and most racially disparate) incarceration rate in the world, we have a suggestion: Why not just hold a national lottery to choose who goes to prison each year? That way we could do away with all the frills of the criminal justice system, such as defense counsel, juries, and judges.

Copyright © 2003 Punch and Jurists, Ltd.