Vol. 8, No. 42	Covering Cases Published in the Advance Sheets through October 15, 2001

Highlights of this Issue:

U.S.S.G. and Sentencing Issues:

• Judge Weinstein of the E.D.N.Y. has written a very important sentencing decision in U.S. v. K. He not only strongly advocated greater consideration of the use of non-prison sentences in appropriate cases, he also used the technique of postponing the defendant's sentencing for a year to give him more time to determine whether the defendant could qualify for a downward departure based on pre-sentence rehabilitation.
  
  
  
• In Ortega, the Eighth Circuit held that a defendant's failure to pass a polygraph test is insufficient to support a sentence enhancement for obstruction of justice (based on theory that she had lied to obtain a lighter sentence); and the decision raised significant questions about whether polygraph evidence is ever useable at sentencing.
  
  
  

• In Smith, the D.C. Circuit interpreted one of the obtuse provisions of U.S.S.G. § 1B1.2(d) and held that when that section requires the court to determine whether it would have convicted the defendant of a particular offense, in order to determine the proper sentence for a conspiracy charge, it must rely on the higher burden of "beyond a reasonable doubt."

Apprendi Watch:

• The Seventh Circuit has outdone itself in the Bjorkman case. First, it concluded that Apprendi did not require that drug quantities be treated as an "element" of a drug crime under 21 U.S.C. § 841. Then, while it acknowledged that, after Apprendi, drug quantity "should" be included in the indictment, it held that the failure to do so is not necessarily fatal. Thus, if the defendant fails to object to that omission, the appellate court's review is for plain error only - "and not for any different standard (such as lack of jurisdiction or failure to state an offense." Finally, it concluded that the only constitutional imperative established by Apprendi is that the trier of fact must be instructed to determine not only the elements of the offense at issue, but also the events listed in § 841(b) on which the prosecutor relies to establish the maximum sentence.
  

Three Strikes Statute Challenged:

• In Andrade, a divided panel from the Ninth Circuit held that the imposition of two, consecutive 25- years-to-life sentences under California's three strikes statutes on a defendant who was convicted of petty theft, but who had seven prior non-violent crimes, violates the Eighth Amendment's ban on cruel and unusual punishment.
  

Supervised Release Issues - An Encore:

• In Tremper, Judge Hurd of the N.D.N.Y. granted an injunction prohibiting enforcement of a special condition of probation that would have barred the defendant from associating with the father of her child. He ruled that the condition was too broad in that it deprived the defendant, her daughter and the father of a fundamental right of liberty in their family life as guaranteed by the Constitution.

United States v. K, 160 F.Supp.2d 421 (E.D.N.Y. 2001) (Judge Weinstein)

This is not just another sentencing decision: it is actually an important and thought-provoking exposition in which a highly-respected jurist issued a call for greater consideration of alternatives to the lengthy and automatic prison sentences imposed in most criminal cases. In advocating a greater use of non-custodial sentences, Judge Weinstein of the E.D.N.Y. not only provided a roadmap to non-custodial sentencing, he also presented a treasure trove of persuasive resources in support of his contention that non-prison sentences are actually mandated by the Guidelines and the Sentencing Reform Act.

The precise issue addressed by Judge Weinstein in this case was "whether the court may defer sentence of a defendant to permit him to complete the Special Options Rehabilitation Service (S.O.R.S.) Program, an innovative remediation procedure administered by [the E.D.N.Y.'s] Pretrial Services officers." (Id., at 423). Without hesitation, Judge Weinstein answered "Yes" - and he thus granted a one-year postponement of the defendant's sentence "to assure itself that the defendant has been rehabilitated and to explore and consider acceptable sentencing options" (id., at 447), including a series of possible downward departures, based on such factors as the defendant's rehabilitation, his physical and emotional vulnerability, and his family circumstances.

In granting the sentencing postponement, Judge Weinstein stated: "In sum, the court's power to defer sentencing together with the Sentencing Reform Act's objective of curtailing prison overcrowding render S.O.R.S. an effective and appropriate alternative to incarceration in appropriate cases. Given the success of these post-arrest, pre-sentencing programs at the state level, postponing sentencing on the federal level to permit offenders to participate in the S.O.R.S. program as a prelude to a downward departure for rehabilitation is an appropriate means of achieving the objectives of the Sentencing Reform Act." (Id., at 440).

The rationale for this ruling was intriguing. Citing the provisions of the Sentencing Reform Act which directed the formulation of guidelines "to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons" (28 U.S.C. § 994(g)), Judge Weinstein first concluded that "the Sentencing Commission has utterly failed in its assigned task of avoiding unnecessary incarceration." (Id., at 432). To emphasize that point, he noted that the BOP's budget "is now the largest item - 18.9% - in the Justice Department's budget, nearly surpassing the combined budgets of the Drug Enforcement Administration and the Federal Bureau of Investigation." (Id., at 435).

Judge Weinstein then observed that one of the products of such overcrowding is that it "makes debilitation much more likely than rehabilitation." (Id., at 436).

Building on that premise, Judge Weinstein stated that those factors "require[ ] the courts to consider the possibility of a non-custodial sentence" (id., at 437); and that it is the "duty" of a Federal district judge "to try to save as many of the people before the court as it can . . . [from a system which has] unnecessarily destroyed the lives of defendants - particularly minorities - and their families, and added substantially to taxpayers' burdens by requiring the construction of a large and rapidly expanding prison system." He pointedly concluded: "Saving rather than destroying defendants is permitted under the Guidelines." (Id., at 423)

The defendant in this case was a 21-year old Asian-American male, who was drug-dependent; had a severe learning disability, a low-average range of intelligence, and "poor insight and judgment." He was caught up in a scheme in which he offered to sell some 15,000 tablets of the drug known as Ecstasy to two Government informants masquerading as buyers. After lengthy negotiations, he was only able to supply 1,000 tablets - at which time he was arrested. He pled guilty and, significantly, the Government agreed to base his plea on the 1,000 tablets actually sold rather than the 15,000 tablets he allegedly conspired to sell, thereby reducing his estimated incarceration under the Guidelines from 46-57 months to 12-18 months. He was then released on bail; and put in the S.O.R.S. program.

As explained by Judge Weinstein, the purpose of the S.O.R.S. program is "to provide the courts with an alternative to sentencing in the case of young, nonviolent offenders whose backgrounds demonstrate a high probability of rehabilitation under proper guidance. Defendants are monitored and supervised intensively prior to sentencing with an aim of stabilizing the defendant's behavior and reducing the risks of recidivism." (Id., at 426).

Perhaps because the S.O.R.S. program discussed in this case may not be available in other districts, Judge Weinstein also examined other available means of achieving alternatives to incarceration. For example, he examined the prosecutors' power not to prosecute defendants under the pretrial diversion program, which is authorized by the provisions of 18 U.S.C. § 3154(10) and the U.S. Attorneys' Manual, Pretrial Diversion Program, § 9-22.010). (Id., at 438). He explored in some depth the sentencing alternatives specifically authorized by the Guidelines which allow the judges to impose probation, home confinement and electronic monitoring. (Id., at 438-39).

We found particularly instructive Judge Weinstein's conclusion that, unless a sentencing court had the power to postpone a defendant's sentencing, it would be unable even to consider certain possible departure grounds that the courts have "recognized repeatedly" as valid bases for departure. In that vein, he noted that "a sentencing court may consider any pre-sentence rehabilitation that a defendant has demonstrated as well as the likelihood that probation rather than prison will facilitate a defendant's future rehabilitation" (citing U.S. v. Maier, 975 F.2d 944, 948 (2nd Cir. 1992)); and that "[d]ownward departures based on post-arrest, pre-sentence rehabilitation have not been narrowly limited to cases of defendants overcoming their drug addiction" (citing U.S. v. Workman, 80 F.3d 688, 701-02 (2nd Cir. 1996)).

Stressing the need to consider such pre-sentence rehabilitation as a basis for departure, Judge Weinstein concluded: "Rehabilitation outside the harmful prison environment is increasingly the only practicable way of dealing sensibly with individuals like K, who are still ethically and behaviorally malleable, both because of the difficulty of rehabilitation in prison and the high costs it involves." (Id., at 445).

Andrade v. Attorney General of California, No. 99-55691 (9th Cir. 11/2/01) (Judge Paez)

In a decision with far more bark than bite, a divided panel from the Ninth Circuit threw out as unconstitutionally harsh a shoplifter's 50-year-to-life sentence that was imposed under California's "three strikes" law. While the decision did not invalidate the California law, it did hold that the sentence imposed in this case on the petitioner, who was caught stealing nine videotapes, valued at $153, from a K-Mart store, violated the Eighth Amendment's prohibition against cruel and unusual punishment.

The shoplifting offense at issue normally would have resulted in maximum sentence of six-months in a county jail. The petitioner, however, had three prior burglary convictions, and thus he fell within the ambit of the California statute which required the imposition of two consecutive mandatory minimum sentences of 25 years each. Writing for the majority, Judge Paez wrote that "the Eighth Amendment does not permit the application of a law which results in a sentence grossly disproportionate to the crime."

To reach its decision, Judge Paez had to sort through three somewhat inconsistent Supreme Court precedents. Rummel v.Estelle, 445 U.S. 263 (1980), upheld a life sentence with the possibility of parole for a three-time nonviolent offender, while Solem v. Helm, 463 U.S. 277 (1983), overturned a life sentence without the possibility of parole of a seven-time nonviolent offender. Solem established a "proportionality" test, in which the sentence is measured against the crime when examined under the Eighth Amendment. Specifically, Solem held that if a sentence seems disproportionate, it should be analyzed first against sentences for other crimes in the prisoner's state and then against sentences for similar crimes in other states.

But in 1991, the Supreme Court decided Harmelin v. Michigan, 501 U.S. 957, in which a plurality held that there need not be a "strict" proportionality test, but that the Eight Amendment forbids sentences that are "grossly disproportionate." The vitality of Solem after Harmelin, the Ninth Circuit noted, has been subject to vigorous debate. In Harmelin, the life sentence for possession of a pound of cocaine was upheld by a divided court, but Judge Paez wrote that "Solem remains good law after Harmelin."

The panel then proceeded to measure Andrade's sentence under the Solem test; and it noted that "Andrade's indeterminate sentence of 50 years to life is exceeded in California only by first-degree murder and a select few violent crimes" - and thus was grossly disproportionate to his shoplifting charges.

In his dissent, Judge Sneed noted that California voters had approved the three-strikes law in 1994 with 71percent of the vote; and he argued that the courts should not interfere with the voters' will (a position that would have obviated much of this country's leading civil rights jurisprudence).

Counsel for the petitioner in this case, law professor Erwin Chemerinsky, stated that decision could lead to other similar lawsuits, since he believes that there are some 350 defendants in California who have been given lengthy sentences under the three-strikes law for "minor" crimes.

Copyright © 2001 Punch and Jurists, Ltd.