Vol. 10, Nos. 29 & 30
Covering Cases Published in the Advance Sheets through July 28, 2003

Note: This Visitor's version of Punch and Jurists does not include all the cases covered in the Member's version. In addition, while the Member's version contains links to the full text of all of the decisions noted below, that feature is not available in the Visitor's Edition. Thus, while the names of some of the cases cited below may be highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Highlights of this Issue:

The Politics of Criminal Justice

Guidelines - The Feeney Amendment

Batson Rule Held to Apply to Wrongful Exclusion of Italian-Americans


Tesmer v. Granholm, 333 F.3d 683 (6th Cir. 2003) (En banc) (Judge Martin)

In recent years, as the states have struggled to find ways to curb the ever-spiraling costs of two decades of dramatically increased incarceration efforts, we have seen a proliferation of new laws, some of which are enacted with a vendetta-like urgency, which are designed to cut back on the rights and privileges of the millions of incarcerated defendants in our country. (See Imprisonment in the United States, below). Because prisoners are perhaps the only constituency that politicians can totally ignore, it is pretty easy to pass these cost-saving measures, no matter how oppressive they may be, and many of those laws go unchallenged. In the instant case, the Michigan branch of the ALCU helped to challenge one of those laws.

In 2000, the Michigan legislature enacted a law prohibiting the appointment of counsel to represent indigent defendants in appeals of their sentence or conviction, except in very limited circumstances, all of which required the defendants to petition the state court of appeals for leave to grant the appeal - and even on that petition they were denied the right to appointed counsel.

A number of indigent defendants and two attorneys who accepted appointments as criminal defense counsel sued the Michigan attorney general and certain other state defendants, challenging the state law. The indigent-plaintiffs alleged that the statute violated their due process and equal protection rights. The attorney-plaintiffs alleged the statute violated their rights by denying them the opportunity to represent indigents in seeking leave to appeal. In a decision previously reported at 114 F.Supp.2d 603 (E.D.Mich. 2000), Judge Victoria Roberts ultimately granted both declaratory and injunctive relief, ruling that the statute violated the Equal Protection and Due Process Clauses.

The state defendants appealed to the Sixth Circuit. After a previous panel vacated Judge Robert’s ruling (in a decision reported at 295 F.3d 536 (6th Cir. 2002)), the Sixth Circuit granted en banc review. In this decision, the full court, by a vote of 7 to 5, agreed that the Michigan law in question created “unequal access” to the appellate system and thus it upheld Judge Robert’s ruling that the Michigan statute was unconstitutional.

The issue in this case was not whether criminal defendants have a right to appointed counsel on all of their appeals. As the Court explained: “The United States Supreme Court has expanded the right to counsel to allow appointed appellate counsel in certain circumstances. The [state defendants] are correct in stating that the Supreme Court has never held that a constitutional right to appointed counsel exists on all first appeals. The Court has yet to address the situation the statute presents, that of a discretionary first appeal. . . . We are left to fill in this gap.” (Id., at 696).

Rather, the issue in this case was the disparate treatment of defendants: whether the practical effect of the Michigan law was to create an “unreasoned distinction” between those who are rich and those who are poor. For guidance, the Court looked to Douglas v. California, 372 U.S. 353, 357 (1963), where the Supreme Court explained that “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” The Court then described the differences between an appeal of right in which a defendant who can afford counsel retains a lawyer and one in which an indigent is unrepresented; and it concluded: "The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal." (Douglas, id., at 358)

Using that same logic, the majority held that the effect of the Michigan law was “to create a different opportunity for access to the appellate system based upon indigency. As applied, the statute violates the due process provision of the Fourteenth Amendment to the United States Constitution, and is thus unconstitutional.” (Id., at 701).


U.S. v. Mellert, No. CR 03-0043 (N.D.Cal. 07/30/2003) (Judge Patel)

To date, we have seen perhaps a few dozen cases that have addressed the recently enacted Feeney Amendment; and most of them have made little more than sterile, if not docile, references to the changes in Federal sentencing practices wrought by that legislation. Judge Patel’s decision in the instant case is cut from a different cloth. Stating that judges “should not be timid or fearful of inflicting an occasional whiplash or, where necessary, even imposing chronic pain when Constitutional rights are threatened of the balance of powers is jeopardized, she granted a 2-level downward departure for aberrant behavior in an "extraordinary" insider-trading case.

Without mincing words, she chided Congress for having enacted legislation, “after twenty minutes of discussion on the floor of the House of Representatives,” in response to a sudden “wrath” against downward departures. She then wryly commented that Congress’ wrath “was particularly focused on the judiciary even though most downward departures are negotiated by, stipulated to or unchallenged by the government.”

Then, stating that the Feeney Amendment “represents a significant departure from [the] dispassionate, deliberative process” envisioned by the Sentencing Guidelines, she added:

“It appears that much of Congress’ effort is prompted and advised by the Department of Justice or persons within that Department without the benefit of the accumulated wisdom of the Sentencing Commission or the Judiciary. The thrust of the legislation is to remove more and more of the determination and discretion in sentencing from an independent judiciary and the Commission and vest it in the Department of Justice, which, of course, is a partisan in our system of justice.

“Under this new regime not only will the government determine the charges to be filed, whether the indictments will undercharge or overcharge the criminal conduct, or, whether it will engage in pre-indictment or post-indictment maneuvering to bring about the government’s desired result, but it also will be the only voice heard when adopting statutory sentences and Sentencing Guidelines with less and less discretion afforded to the courts and the Sentencing Commission. To put it more bluntly, the wisdom of the years and breadth of experience accumulated by judges and the Sentencing Commission in adjudicating criminal cases and sentencing defendants is shucked for the inexperience of young prosecutors and the equally young think-tank policy makers in the legislative and executive branches.” (Emphasis added).

With those words, we assume that Judge Patel has made it all the way to the top of Attorney General Ashcroft’s black list.


Special Feature: Imprisonment in the United States

More and more, we are beginning to see massive efforts by our Government to hide outright or to disguise beyond recognition the real repercussions and the true costs (both economic and social) of our nationwide crusade to maintain the highest incarceration rate in the world. Last week, two separate events helped to accentuate the enormity of our rates of incarceration, and to put some of the attendant costs of incarceration in perspective.

First, on August 18, 2003, the Department of Justice’s Bureau of Justice Statistics released a rather remarkable special report, entitled “Prevalence of Imprisonment in the U.S. Population - 1974-2001." Among the many statistics crammed into that Report was the finding that 1 in every 37 adults living in the United States had been confined in State or Federal prisons at some time in her or her life.

We have emphasized that this study included only the adult, prison population. For reasons never explained, the Report does not include incarcerated juveniles and it does not include the inmate population in America’s city, county and local jails. A little investigation of the DOJ’s own statistics shows that if the jail population were thrown in, the overall statistics would increase dramatically. Thus, while the Report focused on the 1,319,000 adults who were in prison at the end of 2001, an earlier DOJ report for the same period showed that the total inmate population in America’s prisons and jails was actually 2,033,331 - a staggering 54% increase above the carefully massaged figures that were presented to the American public. We find it curious why the Government would carve out such a large segment of total population that has endured the American “prison experience.”

No sooner was the ink dry on that report, when the DOJ released a related report showing the incidence of people on Probation and Parole in the United States. That second Report shows that, as of the end of 2002, nearly seven million adults in America (1 out of every 32 adults) were either under some form of supervision by the criminal justice system, such as probation, parole, or supervised release, or were incarcerated.

The third event was a remarkable speech that Supreme Court Justice Anthony Kennedy gave to the annual convention of the American Bar Association on August 9, 2003. That speech drew the immediate attention of the press because Justice Kennedy urged the ABA to argue for the repeal of mandatory minimum sentences because “our resources are misspent, our punishments too severe, our sentences too long” and “in too many cases, mandatory minimum sentences are unwise and unjust.”

While that statement (coming from a Supreme Court Justice) was significant, we also found interesting another segment of Justice Kennedy’s speech, where he observed: “Were we to enter the hidden world of punishment, we would be startled by what we see. . . . Nationwide, more than 40% of the prison population consists of African-American inmates. About 10% of African-American men in their mid-to-late 20s are behind bars. In some cities, more than 50% of young African American men are under the supervision of the criminal justice system. . . . The cost of housing, feeding, and caring for the inmate population in the United States is over 40 billion dollars per year.” (Emphasis added).

The problem with that $40 billion figure is that it is at least a false barometer of the real costs of imprisonment - and possibly a carefully cultivated myth designed to keep those costs at a politically acceptable level. It doesn’t take a genius to realize that the costs of housing, feeding and caring for inmates represents just a small fraction of the total cost of the criminal justice system. For example, the $40 billion dollar figure does not include the hundreds of billions of tax dollars that are spent on items such as the construction costs of the new prisons constantly being built, the costs of supervising the millions of Americans on parole and supervised release, the overall costs of our many law enforcement agencies, the portion of the total costs of our judicial system that relate solely to criminal justice, the costs of supplying defense counsel to indigent defendants (which today represents more than 80% of our criminal cases), and the massive and incalculable hidden costs that society incurs when thousands of families of convicts are forced to go on welfare as soon as the principal bread-winners are incarcerated.

Perhaps, if the American public were told the truth about the real size and the real costs of our prison and jail populations and of those being supervised by the criminal justice system, it would start demanding some radical changes that would put the brakes on our unparalleled and ever-escalating incarceration efforts. And just maybe the fear of any such changes is precisely why the American public is fed false statistics about the real size and costs of our incarceration policies and programs!


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

101

1,387

17,895

District Courts

75

850

   9,788


Copyright © 2003 Punch and Jurists, Ltd.