Atlanta Federal Criminal Attorney
Richard A. Grossman
Richard A. Grossman, Trial Attorney
66 Lenox Pointe, NE
Atlanta, GA 30324
678-358-6555
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House of Representatives Approves Bill Reducing Disparities Between Mandatory Crack and Powder Cocaine Sentences
The House of Representatives approved a bill the Senate passed in March that changes a 1986 law under which federal crack cocaine sentences were disproportionately greater than for powder cocaine sentences. 80% of persons convicted of crack cocaine offenses are black.
Under current law, possession of 5 grams of crack triggers a mandatory minimum five-year prison sentence. The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine. The compromise bill would reduce the ratio between crack and powder cocaine from 100:1 to 20:1 and directs the U.S. Sentencing Commission to enhance penalties for aggravating factors like violence or bribery of a law enforcement officer.
President Obama addressed the sentencing disparities between federal crack and powder cocaine offenses during his presidential campaign and is expected to sign the bill.
Supreme Court Limits Use of “Honest Services” Law to Bribes or Kickbacks
The Supreme Court has dealt a blow to federal prosecutors pursuing corporate executives by restricting the federal statute which makes it a crime “to deprive another of the intangible right of honest services.” Jeffrey K. Skilling, the former CEO of Enron, sold a half million shares of company stock and made a profit of $15 million after allegedly lying about the financial health of the company. A few months later the company fell into bankruptcy. Skilling was convicted and sentenced to 24 years imprisonment.
Justice Ginsburg, writing for the majority, said the law must be limited to the core offenses of bribes and kickbacks. Justice Ginsburg wrote, “Because Skilling’s misconduct entailed no bribe or kickback, he did not conspire to commit honest-services fraud under our confined construction” of the law.
In another significant ruling the justices instructed the lower courts to reconsider the conviction of Conrad Black, the newspaper executive convicted of defrauding his media company, Hollinger International. In Black et. al. v. United States, the court held that its opinion in Skilling on the scope of the honest services law renders the jury instructions in Black on that law incorrect.
The decisions may have implications for cases involving politicians as well, including Gov. Rod Blagojevich of Illinois, whose trial is underway, and Joseph Bruno, a prominent New York politician who was convicted of federal corruption charges last December.
U.S. Supreme Court Eases Automatic Deportation in Minor Drug Cases
In a unanimous decision the Supreme Court ruled that immigrants who are legally in the United States need not be automatically deported for minor drug offenses. Jose Angel Carachuri-Rosendo is a permanent resident of the U.S. In 2004, Mr. Carachuri-Rosendo was sentenced to 20 days in jail for possession of less than two ounces of marijuana. In 2005, he was sentenced to 10 days in jail for possession of one tablet of Xanax without a prescription.
Although both offenses were misdemeanors under state law, federal authorities argued that a second drug offense counted as an aggravated felony under federal law. Writing for seven justices, Justice Stevens said, “a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug” is at odds with the ordinary meaning of “aggravated felony” requiring deportation under 1101(a)(43).
Criminal Suspects Must Now Unambiguously Invoke Their Right To Remain Silent
The 1966 decision in Miranda v. Arizona has been narrowed in a 5-4 opinion by the Supreme Court. Van Chester Thompkins, Jr., was convicted of murder and is serving life in prison without parole. Thompkins was captured more than a year after the shooting that resulted in his conviction. He was questioned by detectives for almost three hours. There was no dispute he was given his Miranda warnings at the beginning of the questioning. However Thompkins did not say that he wanted to remain silent or that he did not want to talk with police.
Near the end of the questioning, one officer asked Thompkins whether he believed in God and he said “yes.” The officer then asked “do you pray to God?” Again Thompkins responded “yes.” The officer asked, “do you pray to God to forgive you for shooting that boy down?” Thompkins said “yes” and then looked away. He refused to make a written confession and he refused to sign a Miranda waiver form. The one word confession was used at Thompkins’ trial and he was convicted.
Having lost his appeal in state court, Thompkins’ conviction was eventually overturned in the U.S. Court of Appeals for the Sixth Circuit which ruled that Thompkins had not waived his right to silence, The Court found that Thompkins’ continued silence through the almost three hour long interview indicated that he did not want to waive his rights.
Justice Kennedy, writing for the majority, said that wasn’t enough. Kennedy concluded that “Thompkins did not say that he wanted to remain silent or that he did not want to talk to police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning’. Here he did neither, so he did not invoke his right to remain silent.”
Juveniles Serving Life Sentences Must be Considered for Release if They Did Not Intend to Kill Anyone
By a 5-4 vote the U.S. Supreme Court has ruled that young people serving life sentences must at least be considered for release. Terrance Graham is locked up in a Florida prison for crimes other than homicide. The Court says that it is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder. The opinion is based on the Eighth Amendment’s ban on “cruel and unusual” punishment.
“Life without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convictof the most basic liberties without giving hope of restora-tion, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence….” Justice Kennedy wrote in his majority opinion.
Here is a link to the Graham opinion.
Justice John Paul Stevens’ Retirement Effective As Of This Summer
Justice Stevens reports that his retirement will be effective as of this summer, not when a replacement is confirmed. This means that, come July, the Supreme Court will be short a Justice unless and until a successor has been nominated by the President and confirmed by the Senate.
The Court can function with fewer than its full membership of nine, but does not like to do so. With only 8 justices there is a significant chance of splitting 4-4. In that situation. the lower court ruling that has been reviewed is simply upheld, without an opinion and without setting any precedent.
Among the potential nominees to the Stevens seat are U.S. Solicitor General Elena Kagan; a federal circuit court judge from Chicago, Diane P. Wood; and a federal circuit court judge in Washington, D.C., Merrick B. Garland.
Text of Justice Steven’s retirement letter to President Obama is found here
U.S. Supreme Court: Lawyers For Noncitizens Must Advise Their Clients If A Guilty Plea Would Put Them At Risk Of Being Deported
The United States Supreme Court has decided in a 7-2 decision that a criminal defendant’s counsel must inform his or her client whether their guilty plea carries a risk of deportation. Jose Padilla, a native of Honduras, had lived legally in the United States for forty years. He was arrested in Kentucky with a large amount of marijuana in a tractor-trailer he was driving. Mr. Padilla was charged with drug offenses that would make his deportation almost a certainty.
When Mr. Padilla asked about the consequences of pleading guilty he was told by his lawyer that he did not need to worry about his immigration status since he had been in the country for so many years. When he faced deportation, Mr. Padilla argued that he pleaded guilty only because of that erroneous advice. The Supreme Court of Kentucky in rejecting his claim said Mr. Padilla’s right to effective assistance of counsel did not apply because deportation was merely a “collateral” consequence of his conviction.
Justice John Paul Stevens, writing for a 5-member majority, said judges used to have considerable discretion about whether a noncitizen should be deported after being convicted of a crime. Because much of that discretion has been taken away, correct legal advice is more important than before for immigrants. Justice Stevens said it was wrong to dismiss deportation as a “collateral” issue because deportation is nearly automatic in many cases.
Justice Alito issued a concurring opinion, joined by Justice Roberts. They would have limited the rule to prohibit only completely incorrect legal advice. Justice Scalia dissented, joined by Justice Thomas, writing that the Sixth Amendment guarantees the defendant a lawyer only for the defense of the criminal case and not for advice regarding any collateral matters.
Georgia Supreme Court Rejects Bid to Bar Death Penalty
In a 4-3 ruling the Georgia Supreme Court said the state did not violate Jamie Ryan Weis’ right to a speedy trial. Mr. Weis had been without lawyers for two years because the state lacked the funds to pay for his defense.
Writing for the majority, Justice Melton said the trial court was correct to appoint local public defenders, in spite of the fact that one of these attorneys had a caseload exceeding four hundred and had not maintained the certification necessary to defend death penalty cases.
Writing in dissent, Justice Thompson stated, “If the state wants to seek the death penalty against an indigent defendant, it must provide adequate funds for a full and vigorous defense. The state cannot shirk this responsibility because it is experiencing budgetary constraints.” Justice Thompson added, “The bottom line is that the state should not be allowed to fully arm its prosecutors while it hamstrings the defense and blames defendant for any resultant delay.”
Senate Bill Would Reduce Sentencing Disparities in Crack vs. Powder Cocaine
The Senate Judiciary Committee unanimously passed a measure this week to reduce criminal penalties for defendants caught with crack cocaine. The proposed legislation addresses for the first time in two decades a sentencing disparity that has troubled many.
The Senate bill would reduce the sentencing disparity to 18 to 1 for people caught with crack cocaine versus powdered cocaine. The current ratio is 100 to 1, disproportionately hurting African Americans, who are convicted of crack offenses in far greater numbers.
The Senate bill would also increase the amount of crack cocaine required to trigger the 5 year mandatory minimum sentence for possession with intent to distribute from 5 to 28 grams.
The House Judiciary Committee passed a cocaine sentencing reform bill in July that would treat all forms of cocaine the same for sentencing purposes.
Supreme Court’s Speedy Trial Opinion Limits Automatic Exclusion of Time Granted to Prepare Pretrial Motions
The Speedy Trial Act, Title 18 U.S.C. Section 3161, et. seq., requires that a criminal defendant be tried within 70 days of indictment or the defendant’s first appearance in court, whichever is later. Subsection (h) provides for numerous periods of “excludable time.”
In Bloate v. United States (08-728) The Supreme Court held that the time granted to prepare pretrial motions is not automatically excludable from the 70-day limit under subsection (h)(1). Instead, such time may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7). Subsection (h)(7) provides that delays “resulting from a continuance granted by any judge” may be excluded, but only if the judge finds that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial” and records those findings.