What It's Like For The Client Subjected To A Bogus And Retaliatory Investigation

By day, Bob Blaskiewicz is a college professor. By night, he's a skeptical blogger, using the critical thinking skills he teaches to interrogate public quackery. He's a long-term critic of Stanislaw Burzynski, a Houston researcher famous and infamous for experimental cancer "treatments." He helps run a blog critical of Burzynski's claims. (Long-time readers of Popehat might remember that a supporter of Burzynski named Marc Stephens attempted, to the best of his modest ability, to threaten me at length with criminal investigations and legal proceedings, which generated what for better or worse became the blog's catchphrase.)

Blaskiewicz is fighting the good fight for science and skepticism over woo and those who prey upon the desperate. That has consequences. In his case, it generated a bogus and malicious report to the FBI about him. Bob describes what it was like in a post (not to mention what it was like to have to put up with me). The result was obvious and (after the fact) appropriate — the FBI determined that the "threat" was obviously not one, but speech protected by the First Amendment. It's still regrettable that bad faith retaliatory reports to law enforcement can upend people's lives. It was a privilege to help out Bob, who has a lot of insight into the client experience:

[I was learning that a big part of a defense attorney’s job is keeping their clients from hurting themselves by acting out of panic.]

Read his post, it's worth it.

About Trump's Mandatory-Minimums For Returning-Aliens Proposal

Last night Donald Trump said this:

On my first day in office, I am going to ask Congress to pass "Kate's Law" — named for Kate Steinle — to ensure that criminal aliens convicted of illegal entry face strong mandatory minimum sentences.

This is stupid political theater; let me tell you why. I'll begin by emphasizing that it's not, by any stretch of the imagination, a stupidity that's unique to Trump. He's just the most recent example.

I'll leave aside, for the moment, that naming laws after crime victims generally leads to bad lawmaking. Let's instead focus on the fatuity that slapping a mandatory minimum sentence on a particular crime will do anything other than signal our moral outrage about it.

Reentering1 the United States after you've been deported2 is a federal crime. The maximum sentence depends on whether you've committed crimes before deportation, and can be up to 20 years if you've been convicted of an "aggravated felony."3. The United States Sentencing Guidelines — which are used to generate a recommended sentence for the sentencing judge — calculate the sentence based on factors including the number and nature of past convictions and commonly yield ranges anywhere from a year to six years. I prosecuted these cases when I was an Assistant United States Attorney and defended them when I worked on the indigent defense panel. It's also a crime to enter the United States as an illegal alien in the first place, though that used to be prosecuted rarely. After their sentences, these defendants are transferred into immigration custody and deported.

Trump's rhetoric suggests that we can reduce crime and protect citizens by lengthening the sentences of aliens who return after deportation. This is bunk.

First of all, only a small number of aliens who return after deportation are prosecuted. That's because of resource limitations, not lack of political will or indulgence. There are far fewer federal prosecutors than state prosecutors, and far fewer federal judges than state judges. As a consequence there are a limited number of federal prosecutions. For instance, in Fiscal 2010 there were just under 70,000 federal criminal cases filed nationwide. That's for all types of federal crimes. Immigration prosecutions already take the lion's share of those. That Fiscal 2010 year, almost 30,000 of those cases were immigration-related. Many of those were illegally returning aliens, but others including alien smuggling, immigration fraud, and related issues. Compare that to 115 civil rights prosecutions, 581 official corruption prosecutions, 300 organized crime prosecutions, and 6,437 white collar crime prosecutions for fiscal 2010.

Second, immigration prosecutions have already been skyrocketing, not declining. Federal prosecutions for illegal reentry – and now for even illegal initial entry — have surged dramatically during the Obama administration. That means they take up an even greater percentage of federal prosecutions and federal prosecutorial and judicial resources.

Third, this surge in prosecutions is made possible by plea-bargaining offering shorter sentences. Illegal reentry cases are some of the simplest federal cases to prosecute: you've just got to establish the defendant's alien status, prior deportations, being found in the United States after deportation, and (these days) prior criminal record.4 For the most part prosecutors prove those things up with agents and documents from the agency now called Immigration and Customs Enforcement ("ICE"). However, there are a limited number of ICE case agents to put cases together for prosecutors, a limited of number of ICE records custodians to testify, a limited number of federal prosecutors, and a very limited number of federal judges. So jurisdictions with a high rate of illegal entries and reentries have created fast-track programs that reward very quick pleas (within a few weeks of arrest, before indictment) with reduced sentences. Those fast-track programs drive a gigantic percentage of the federal criminal docket in places like San Diego.

Even with fast-track programs in place, and even with immigration crimes taking up a very large percentage of federal criminal efforts, only a small percentage of illegally returning deportees are prosecuted criminally. A tiny percentage of first-time illegal entries face prosecution. There are no resources to do more. U.S. Attorney Offices generally create internal guidelines to determine which cases they'll prosecute. For instance, when I was a federal prosecutor in the 1990s, the Los Angeles office only prosecuted cases involving aliens with prior aggravated felonies or lots of prior deportations. Those days, the office — one of the biggest in the country — indicted about 1,200 – 1,500 cases a year total. That number is lower now. It cannot make a statistically significant impact on immigration crime.

If you add mandatory minimums to the mix, that system collapses. Defendants lose the incentive to plead guilty promptly. If they're going to face a five or ten year mandatory minimum sentence, why plead out quickly? ICE lacks the resources to marshal lots of federal cases to trial as case agents. Federal prosecutors lack the resources to prepare for trial, and try, many more immigration cases. Federal judges lack the time and courtrooms to try the cases. (There are about 2,800 federal district judges nationwide, and remember that they handle both civil and criminal cases.) Unless accompanied by a substantial increase in resources devoted to ICE, the Justice Department, and the federal judiciary, increasing time spent on immigration prosecutions means reducing time available for administrative deportations and investigations, all other criminal prosecutions, and all federal justice, civil or criminal. That's before they are convicted: the federal prison system is already overcrowded and it costs about $30,000 per inmate per year. (Convicted aliens cost at the high end of the scale because they are generally held in higher security facilities.) Prosecuting returning aliens goes up, prosecuting corrupt politicians, white collar crime (especially complex white collar crime), gun crimes, organized crime, complicated drug conspiracies, political corruption, and abusive cops goes down. Your wait for trial in federal civil cases goes way up.

I've never seen any credible evidence that more prosecutions or higher sentences deter aliens from returning after deportation. Certainly an alien with a criminal record who is sitting in federal prison is not, at that moment, returning after another deportation and committing more crimes, but the system lacks the resources to make a statistically significant impact through such incarcerations, unless you'd like to pay a lot more in taxes, which you would not. And while you are incapacitating criminal aliens through mandatory-minimum incarceration you are not using those prosecutors, judges, or jail cells to incapacitate other criminals, including domestic criminals who offend at a higher rate.

Mandatory minimums, if applied rigorously, would therefore dramatically reduce federal immigration prosecutions. Of course, they wouldn't be applied rigorously; they almost never are. Instead, the likely outcome is this: Congress would pass mandatory minimum laws covering some illegal reentries. Federal prosecutors would retain discretion of whether to charge aliens under those new statues or under existing statutes without mandatory minimums. Federal prosecutors would use that discretion the way they usually do — to coerce cooperation and guilty pleas. So the length of sentences for aliens returning after deportation wouldn't increase; there would just be more prosecutorial power and discretion and somewhat quicker pleas. The impact of the law would be the opposite of how it is sold to the public.

Mandatory minimums could work differently if accompanied by a general policy shift. If Congress passed mandatory minimums and the Department of Justice said "we're going to focus our resources on prosecuting returning aliens with past violent crimes like rape and robbery and assault and stop prosecuting aliens with past drug or property crimes," we'd be having a different discussion. But that's not going to happen, is it?

Trump's mandatory minimum proposal is crowd-pleasing bunk. It's commonplace bunk, offered by politicians of all stripes, but it's bunk all the same.

John Hinckley, Jr. and the Rule of Law

Today the airwaves are ablaze with news that John Hinckley, Jr. — would-be assassin of President Reagan — will be released from a mental institution to live with his elderly mother. United States District Judge Paul L. Friedman's order permitting this release comes more than 35 years after Hinckley's bloody assault, which wounded President Reagan, gravely and permanently disabled his press secretary James Brady, and injured a police officer and a secret service agent.

People are outraged. Why wouldn't they be? Assassinations have cast a grim pall over American history. President Reagan was well-liked and is nearly revered in retrospect. The assassination attempt was a formative event in the memory of many people my age. How, people ask, can you shoot four people, one of them a President, and ever see the light of day again? If any act requires permanent confinement, isn't it this one?

The answer should comfort us, not terrify us: the rule of law applies to everyone, even the notorious. (Edited to add: or, at least, it ought to.)

Hinckley was not convicted of the attempted murder of President Reagan — a jury found him not guilty by reason of insanity. Criminal defense lawyers will tell you that it is exceptionally difficult to convince a jury to reach such a verdict. In (another) era of great anxiety of crime, in a case involving a popular President, the odds were weighed even more heavily against Hinckley. If you think that it's outrageous that someone who tries to kill the President could use the insanity defense, bear in mind that the defense has its roots in cases of mentally ill people attempting assassinations. Nevertheless, public outrage led to nationwide narrowing of the defense, notwithstanding the fact that it was rarely used and even more rarely successful.

Now, after 35 years of confinement (with gradually increasing exceptions) in a mental institution, the court has found that Hinckley is suitable for release under the provisions of the relevant laws governing patients committed to institutions after such verdicts:

(e) . . . . The court shall weigh the evidence and, if the court finds that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others, the court shall order such person unconditionally released from further confinement in said hospital.

It was not a casual decision. Judge Friedman's order is 103 pages long, and builds on a history of other long orders. The order meticulously reviews the testimony at an evidentiary hearing, the unanimous conclusions of multiple doctors (including the government's own experts) regarding Hinckley's mental state and lack of dangerousness, and the history of his gradually increasing liberties granted by the hospital and the court. In addition, the court sets rather rigorous limitations on Hinckley's freedom, considerably in excess of what one would normally see for a convict released on parole or supervised release — for instance, the court limits Hinckley's access to the internet and ability to communicate with the public to head off the sort of attention-seeking and grandiosity that was part of his delusional structure (see page 99-100 of the order).

Perhaps you find Hinckley's release outrageous. If so, ask yourself why. Is the outrageous part that there's a defense of not guilty by reason of insanity? Is the outrageous part that a jury found it applied, in a case where everyone agreed that Hinckley was crazy, and only disagreed about whether he was responsible? Is the outrageous part that such people can be released after 35 years under strict conditions if doctors agree they are in remission and not dangerous? Is the outrageous part that a judge found that the facts here warranted such a release? Or is the outrageous part that some crimes are so notorious that you think they should be outside the rules, outside the rule of law?

Is John Hinckley, Jr. dangerous to society? Doctors don't think so after 35 years, and he's successfully completed many outside visits and excursions to date. Is it dangerous to have a legal norm that the gravely mentally ill who commit violence may eventually be released? I doubt 35 years of forced treatment and confinement is the sort of lenity that leads anyone to violence. What about exceptions to the rule of law? If we ignore the rules and evidence because a particular person is sufficiently notorious, because of our gut, how dangerous is that?

Cynicism And Taking Clients Seriously

Let me tell you a story about taking clients seriously.

Years ago I had a young client who got into a summer program at Big Prestigious University, or BPU. The Client didn't go to BPU — he went to a community college, but was accepted by an on-campus summer program at BPU.

Client got arrested for having a gun and a bag of serious drugs in his dorm room at BPU. He was turned in by his roommate, a full-time BPU student, who found the gun and the drugs. Having a gun on any sort of campus is a very serious crime in California, and the DA was in the middle of a safe-schools kick, and Client was looking at hard time and a bad record.

Client swore to me the gun and drugs found in his dorm-room dresser weren't his. He said that someone — perhaps his roommate? — must have planted them. Sure, I thought. A BPU student acquired a gun and hard drugs and decided to use them to frame some rando — a rando who was, perhaps, not completely unfamiliar with drug culture. That makes perfect sense. Nothing in the evidence the DA turned over suggested any motive for the roommate to do any such thing. I was deeply skeptical, and planning for a very grim set of choices.

But Client's family had money, so I hired an investigator and had the investigator look into the roommate. Would I have found a way to acquire public money for an investigator if the Client hadn't had money? Good question.

Guess what the investigator found?

Turns out the roommate was fresh back at BPU after a stint in state prison. Roommate went to state prison because he had been stealing stuff — laptops, phones, and so forth — from classmates at BPU. When roommate was caught, he attempted to pin the thefts on friends, and when that failed blamed mental illness. He was currently on probation, and was having some trouble with his probation officer — and might be trying to curry favor.

No, BPU didn't warn Client that he was rooming with a recently released felon with a record of falsely implicating others in crimes and a pattern of blaming mental illness for his conduct against fellow students.

By the way, the same mid-sized DA's office that was prosecuting Client had recently prosecuted the roommate — and had withheld any information about the roommate's recent criminal activity, as had BPU in my discussions with them.

I subpoenaed roommate to the preliminary hearing and told the DA I was going to interrogate him. The roommate appeared, looking terrified. General counsel for BPU appeared, looking concerned. The judge looked angry — she felt it was my responsibility to arrange for a criminal defense attorney for the roommate if I knew that my questioning might trigger a Fifth Amendment assertion. Interesting theory, judge.

The DA had a long talk with a supervisor, and a long talk with the roommate, and came back to me with a deal: drop the gun charge and accept deferred entry of judgment on the drug charge. If Client completed probation successfully, the case would be dismissed, with no conviction. Notwithstanding how much Client and I wanted to put roommate on the stand and eviscerate him, or force him to take the Fifth and tank the DA's case, it was impossible to turn down the deal — the risks were too high. Client took the deal, completed probation successfully, and as far as I know has run into no problems since.

I would be lying if I said that I believed the client when he told me the gun and the drugs. But, thank God, I took him seriously — that is to say, I followed up on what he had to say with the resources available to me.

Just as prosecutors are captured by the system and its culture, so are defense attorneys. It is currently fashionable for defense attorneys to say "clients lie" and "most clients are guilty." I wouldn't agree with either proposition. Everybody lies; I don't think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It's just that criminal defense scenarios require a level of precision and accuracy that most human interactions don't.

Being an effective and responsible criminal defense attorney doesn't require believing everything a client says, exactly. The policy could be better described as "trust, but verify." The key isn't to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don't, you're not defending the client — you're defending your stereotype of the client.

FBI Actively Investigating Prenda Law Team For Fraud

The Federal Bureau of Investigation's Minneapolis office is conducting an active investigation of the principals of Prenda Law, the notorious team of crooked copyright trolls that I've spilled so much e-ink over here.

Today I spoke with two sources who confirmed receiving a letter from the FBI inquiring about their experiencing with Prenda and seeking information about Prenda's activities. The letter — which I have reviewed — has been sent out on a large scale to attorneys who have represented targets of Prenda's litigation. Here's what the letter reveals:

  • The FBI is looking at the various entities Prenda Law used, including Steele Hansmeier PLLC, LW Systems, Livewire Holdings, AF Holdings, Ingenuity13, and Guava LLC.
  •  Though the letter does not name individual targets, the context makes clear that the FBI is investigating the principals of Prenda Law (with the exception of Paul Duffy, I suppose).
  • The FBI has devoted substantial resources to soliciting victim impact in a systematic way, and based on its questions about availability to testify is contemplating prosecution.
  • The FBI is focusing on "a fraudulent scheme known as 'trolling'" — which may indicate that the FBI has concluded that Prenda Law principals themselves uploaded their pornography to BitTorrent sites in order to sue people who downloaded it.

Based on my 21 years in the federal criminal justice system, I believe the letter reflects an active, determined investigation in its later stages.  The letter represents an abandonment of operational security and confidentiality; it suggests the FBI no longer sees a need for stealth.  That, in turn, suggests that the FBI believes it's already developed the evidence it needs to prove the substance of its case (that Team Prenda committed wire and/or mail fraud) and is just identifying as many victims as possible for potential witnesses and to establish the amount of damages.   Bear in mind that under the Federal Sentencing Guidelines, the more money wrongdoers made, the more time they're facing.

I'll report more as I learn more.  But as I often say — the wheels turn slowly, my friends. But they turn. Team Prenda needs federal criminal defense attorneys, and needs them right now.

How To Write (Or Solicit) A Good Letter Supporting A Defendant At Sentencing

This week various political figures took some abuse for writing letters seeking leniency in the sentencing of former House Speaker Dennis Hastert, who got a 15-month sentence for monetary transactions designed to conceal that he was paying off victims of sexual abuse.

I've argued before that if you write a sentencing letter in support of a famous (or notorious) person, the media will report on it in an insipid and sensational way. That's inevitable, and media reaction isn't my focus. My focus is suggesting how to write a letter that furthers the best interests of the defendant and is most likely to move the judge towards a better result.

With that in mind, here are some rules:

This letter is not a vehicle for you to express yourself. A letter supporting a defendant is not an opportunity for you to posture, work out issues, or express yourself artistically. It is an opportunity to help the judge see the defendant as a human being. If you cannot stop yourself from making your letter about you instead of about the defendant, or if you find yourself focusing on how the letter makes you sound, please don't write the letter.

Nobody cares what you think about this case or the criminal justice system. Now is not the time to say that the criminal justice system is unjust or should be spending resources on other things or how far worse criminals get away or how this shouldn't be a crime or this is politically motivated. Go write that shit on your LiveJournal. It will annoy the judge.

For these purposes, the defendant is not innocent. Most likely the defendant pled guilty. Or maybe he or she was convicted by a jury. Either way, the judge is starting from the premise that the defendant is guilty. Appeals and habeas corpus motions — or, maybe, attorney arguments about residual doubt — are the place for discussions of innocence. A sentencing letter isn't. "I know he didn't do it" and "this must be a mistake" dramatically undermine a defendant's statements of contrition in plea cases, and simply annoy the judge in jury verdict cases. If the defendant has done his or her best to accept responsibility and covey their regret and you come in and write "I've talked to him and I know he didn't do it," you are undermining the defense. It's not persuasive.

Don't bother if you don't know the defendant fairly well. A good sentencing letter isn't like a letter of recommendation that a professor writes about one of the 150 students in a frosh cattle-call course. It's something you write if you know the person — if you have a connection to them. Letters by mere acquaintances are worthless at best and damaging at worst.

When you praise the defendant's character, bear in mind they are being sentenced for a crime. The core idea "I was shocked by this case because I know the defendant to be a good person" is okay, expressed carefully. So, for instance, if your friend is being sentenced for structuring monetary transactions to hide the fact he's paying off people he sexually abused as kids when he was a coach, saying "[w]e all have our flaws, but Dennis Hastert has very few" is appallingly tone-deaf and probably hurts the defendant. Praise of the defendant can't ignore the present circumstances, or it seems uninformed or stubbornly blind. "Defendant's behavior towards me has been so kind and decent that these serious charges were devastating" is the right tone.

Don't minimize the crime. Why do I have to tell you this? Don't suggest that the crime isn't a big deal. Even if it isn't. That's for the defense lawyer to argue, not you. You're going to undermine the defendant's attempt to show contrition.

Don't attack the victim. You utter moron.

Don't talk about your yacht. When you're talking about how well you know the defendant and how you and the defendant have interacted, avoid emphasizing things that highlight the defendant's life of privilege and/or power. First, it sounds like you're bragging, which is obnoxious. Second, it sounds like you are implying that rich or powerful people should get lower sentences, will will antagonize the judge. Third, it tends to make the defendant look worse: if he or she had so much, why did they do this? Downplay it.

Humanize the defendant, preferably with private conduct. It's fine to talk about how a defendant has led a life of public service. But the best stories to tell are the ones about how the defendant acted when nobody was looking. Some of the most powerful letters are about the defendant's small, private acts of humanity, compassion, and decency. You are, after all, asking a judge to see this defendant as an individual human being rather than as a statistic — to exercise mercy. What better way that to tell a story about such mercy exercised by the defendant? The letters I like best aren't the ones about how my client paid to attend a charity gala every year. They're the letters that tell the story about how the client visited the company's receptionist in the hospital and took her whole visiting family out to dinner, or about how he or she helped a stranger, or how he or she showed private kindness. "This Congressman supported the Family Leave Act" is not nearly as powerful as "when my mom died Bob stayed up with me all night and drove me to the funeral home and sat with me while I handled her affairs."

Don't tell the judge what to do. Some lawyers ask letter-writers to ask for a specific sentence, or to ask explicitly for leniency. I don't. I don't think it's effective. The judge knows what the defense is asking for — the defense lawyer is arguing it. Parroting the defense lawyer's talking points makes the letters sound too orchestrated. For most letter-writers, you're asking the judge to consider the type of person you know the defendant to be. The right tone is "I ask you to consider these experiences in sentencing my friend" or "when you consider the crime, I ask you also to consider these things my friend is done." The exception is a close family member who is directly impacted by the sentence — "I don't know how we can keep the house or keep the kids in school if my spouse goes to prison."

Not every lawyer agrees with these rules. But I find them more effective and the judges I've talked to find such letters more persuasive.

Inside Department of Justice Culture: Locals Vs. "Main Justice"

Lawyers and non-lawyers alike chuckled this week when a federal judge in Texas blasted attorneys –and one attorney in particular — from the Department of Justice in Washington, D.C.

Hughes thundered, “If the pretentious lawyers from ‘main’ Justice knew what they were doing — or had the humility to ask for help from the United States Attorney for the Southern District of Texas — it would not have taken three days, seven telephone calls, three voicemail messages, and one snippy electronic message for them to indirectly ask the court for assistance in ordering a transcript.”

This story displays two elements of the culture of the federal criminal justice system. The first is obvious: federal judges, who enjoy lifetime tenure and are almost never impeached, behave pretty much however they want. The black robe tends to amplify preexisting foibles; a bad temper, free from rebuke and guaranteed lifetime employment, grows steadily from an occasional peccadillo to a notorious habit. Fortunately, once you have reached a certain point in your career, being yelled at by a federal judge is merely bracing, like a brisk walk on a cold morning.

But another cultural truth lurks. There are two types of federal prosecutors: Assistant U.S. Attorneys who work at, and for, the 94 U.S. Attorney's Offices across the country, and the Assistant U.S. Attorneys who work in Washington D.C. at "main justice." The "main justice" attorneys often work in specialized and elite units, and frequently travel about the country "supervising" their cases. Those cases might involve terrorism, or civil rights, or political corruption. This can result in tension between main justice and the local prosecutors. To grotesquely overgeneralize, main justice can see the locals as hicks who don't know how to run "elite" cases, and locals can see main justice as arrogant, not as good as they think they are, and both clueless about and indifferent to local practices.

These are exaggerations, but there are occasional examples. About 20 years ago I was a young AUSA in Los Angeles, assigned to the "Complaints" division. Complaints handled intake, complaints, and search warrants on run-of-the-mill cases that didn't already have a federal prosecutor assigned. One day a team from main justice swept in seeking a search warrant on some "elite" matter. The legal core is the same — is there probable cause to believe the items sought are evidence of a federal crime and will be found at the specified location? — but the formatting and paperwork of warrants vary across the 94 federal judicial districts. Each set of judges likes its warrant applications prepared just so. This team from main justice prepared their warrant package the way they wanted to do it, and ignored my suggestions about how to conform to practices in Los Angeles. "Good luck," I said, not entirely sincerely. Sure enough, half an hour later I got a call from the duty magistrate judge. This man was the most pleasant and welcoming judge I've ever encountered; sometimes he was so nice on the bench that people worried he was making fun of them. "Mr. White," the judge asked, "could you please give these . . . . gentlemen some help preparing the warrant application to conform to the local rules?" asked the judge, using a tone suggesting that someone might leave this encounter in leg irons. I promised to do so. The main justice lawyers returned, fuming, indignant, railing against the fact that some backwater like Los Angeles didn't format its search warrant paperwork in exactly the same way they were used to in Washington. I helped them without comment.

Or there was the time that lawyers from main justice, during an argument on a securities case, blundered into the well. The well is the dead space between the counsel tables and the bench. In some places, it's considered culturally appropriate to walk into the well to address the court, just as it's considered appropriate to address the judge from a seated position in some places. But not in Los Angeles. The federal judge — a gentleman who has verbally flayed the flesh from my bones on more than one occasion5 — blasted them, and they were terrified and perplexed.

What's the point of all this? Well, it's partly about the easy truth that the system is made up of flawed human beings. But it's also about the job of lawyering. Nobody cares how you do it back in your courthouse. You're in this courthouse now, and effective representation of your client requires you to pay attention to how things are done here, however much you disdain the locals. Don't be an arrogant ass, it's bad for your client. Also: federal judges gonna federal judge, so shrug and move on.

Tea and Unaccountability: Bureaucracy and the Drug War

Last week Radley Balko described a Kansas case in which loose-leaf tea led to a police raid. One law enforcement officer saw someone shop at a hydroponics store, and another officer conducted trash searches at the shoppers' house and found leaves, and a "field test" suggested (falsely) that the leaves were marijuana, and it was off to the races with an armed incursion into the shoppers' home, which did not in fact contain any marijuana. A federal judge in Kansas recently ruled that the officers were entitled to qualified immunity in the resulting lawsuit.

Orin Kerr took Radley to task for his rhetoric and carefully reviewed the federal judge's order. The investigation may be bungled, Orin argues, but all the judge really did is find that an officer can rely on a positive field test for drugs in establishing probable cause, at least when the officer didn't know that such field tests are notoriously inaccurate.

Radley's perfectly right to be outraged. And Orin's perfectly right to note that Radley's outrage is directed at a feature, not a bug, of the system. Law enforcement has become increasingly bureaucratic, in the sense that actors are insulated legally and politically from the consequences of their actions, and those actions are treated as dictated by circumstance rather than chosen by accountable humans.

Consider, to start, the utter lack of accountability for taxpayer money displayed in this case. The whole case arise from "Operation Constant Gardener," a Sheriff's initiative to conduct marijuana cultivation raids on April 20th because that date is considered an "unofficial holiday among marijuana users." One officer was tasked to sit in the parking lot of a hydroponics store and take down license plates and pass those plates along to another law enforcement agency in a custom-made spreadsheet. Another officer matched those plates to individuals and addresses, and another officer evaluated which addresses to visit. Having chosen a suspect and an address, two other officers visited three times to root through the trash and look for evidence. Those two officers brought the "plant material" they found to a supervisor, in part because it was "hard to identify," to solicit his input. Upon a false positive "field test" for marijuana (though the material was actually tea), an officer drafted a search warrant, a deputy prosecutor reviewed and approved it, and seven law enforcement officers conducted an armed raid on the suspect's house. When the seven officers could not find evidence of marijuana cultivation, they extended the search for a couple of hours in an effort to find personal use amounts of marijuana. They found none. The Sheriff's Office later conducted a press conference bragging of the success of Operation Constant Gardener, presumably referring to other raids.

How much did all of that cost the taxpayers? Tens of thousands of dollars, at least. Was it worth it? Would it have been worth it even if law enforcement had found a private-residence-sized marijuana grow at the house? That's not a question you'll hear asked. The War on Drugs means never having to say "sorry I wasted your money." Certainly nobody who's paid to sit in a parking lot taking down license plates, or paid to raid trash cans and squint (quite literally) at tea leaves, or paid to devise cleverly-named gestures of defiance at marijuana users and then give press conferences about it, will ever ask that question. Financially, law enforcement is unaccountable.

They're also unaccountable in terms of basic competence. There was no incentive for the officers to learn, and know, that field tests are unreliable. What does it matter to them? They get paid whether or not they're reliable, paid whether the search turns up marijuana or tea. Moreover, they're insulated from any civil liability for relying on junk science. Nor do they have any incentive to conduct corroborating investigation. The officers here could have subpoenaed the house's electrical bills to watch for unusual consumption, a tell of indoor marijuana cultivation. They could have investigated whether the house has unusual foot traffic, or whether there had been any tips about the homeowner selling drugs. Faced with hard-to-identify plant material, they could have sent it to the crime lab for a test — after all, they had already waited seven months after the initial sighting of the suspect at the hydroponics store. But why do any of those things? The bar for probable cause is set extremely low — low enough that a visit to a hydroponics store and a questionable field test result on a small amount of leaves clears it. The small amount of leaves in the trash is consistent with mere personal use of marijuana, and some would argue that a seven-officer armed raid is a disproportionate use of law enforcement force to investigate such use, but nobody's asking about proportionality and nobody's being held accountable for the lack thereof. Why not just phone in your investigation, shrug at the result, and show up for a time-and-a-half raid on the dude's house? If a hypothetical officer could objectively conclude that there's enough evidence for probable cause, why give a shit about whether the person really did it or not?

When seven armed agents of the state raid your home at gunpoint in front of your spouse and young kids, it is traumatic. But arguably the homeowner should feel relieved that nothing worse happened. The officers didn't shoot the kids' pet dog, or mistake the X-Box controller in somebody's hand for a gun and shoot them, or stumble on a step and shoot someone, or shoot the homeowner when he reacted to what he might have thought was a home invasion robbery. The officers were relatively low-key — only seven officers, only one AR-15, no flashbang grenades thrown into a baby's crib to soften the place up first. Lucky! If any of those things had happened, it's likely that the officers would not have been accountable for it. The law usually doesn't hold them accountable for such "mistakes" in the course of a raid. And nobody even talks about holding them accountable for making the decision to conduct an armed raid on an occupied dwelling — a raid in which deadly mistakes are a distinct possibility — based on the aimless, good-enough-for-government-work suspicion that maybe they're growing pot in there. Nobody's asking whether the game is worth the candle — whether the known risk to lives is justified by the ends of the War on Drugs.

Nobody asks those questions because it's a bureaucracy, and you don't ask such questions in a bureaucracy. Asking questions might make you accountable, and the whole point of the law enforcement edifice is to insulate actors from accountability and to separate cause from effect. Someone chooses to harass marijuana users on April 20 to make a point and someone decides that you can find marijuana users shopping at hydroponics stores and someone decides that a field test of an unknown substance is good enough and someone decides to get a warrant and a family winds up held at gunpoint in their own home for drinking tea. These events are treated as if they are disconnected; nobody stops to say "the end result of this will be a man prone on the floor under the barrel of an AR-15 in front of his children, so act accordingly." Nobody's responsible, say the police. It just happens. I just work here.

What Happened In The Hammond Sentencing In Oregon? A Lawsplainer

Much ink has been spilled amount United States v. Hammond, the federal criminal prosecution cited by militia members as one of the motivations for taking over a federal facility in Oregon. The increased sentence imposed on the Hammonds has been cited as a sign of government abuse. But the sentencing itself is not remarkable.

In 2001 Steven and Dwight Hammond set a fire on their property that spread to public land. In August of 2006 they set a back burn near the boundary of their land to respond to a lightning-kindled fire; that fire burned a small amount of public land. The federal government charged the Hammonds with various crimes, including Title 18, United States Code, section 844(f)(1):

(f)
(1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

The Ninth Circuit summarized part of the trial evidence as follows:

Although the Hammonds claimed that the fire was designed to burn off invasive species on their property, a teenage relative of theirs testified that Steven had instructed him to drop lit matches on the ground so as to “light up the whole country on fire.” And the teenager did just that.

A jury convicted the Hammonds of the Section 844 charge, acquitted them on other charges, and failed to reach a verdict on additional charges. While the jury continued to deliberate on the remaining charges, the Hammonds and the government reached a deal: the Hammonds would not appeal the verdict and the government would recommend that the Hammonds could stay out on bail pending sentencing and that the government would recommend that their Section 844 sentences be served concurrently — that is, that though the Hammonds were convicted of multiple counts of Section 844, each carrying a mandatory minimum five-year sentence, the government would recommend that those five-year terms not "stack," but result in just one five-year sentence.

At sentencing, the United States District Judge on the case refused to impose the five-year mandatory-minimum sentences required by Section 844, ruling that to do so would violate the Eighth Amendment's prohibition on cruel and unusual punishment. The court instead imposed sentences of twelve months and a day on the father6 and three months on the son.

The government appealed the sentence, and the United States Court of Appeals for the Ninth Circuit reversed and sent the case back, instructing the trial court to impose the statutory mandatory minimum sentence. The Court found — rather convincingly, given the precedent — that a five-year sentence for arson does not violate the Eighth Amendment:

Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense. The Supreme Court has upheld far tougher sentences for less serious or, at the very least, comparable offenses. See Lockyer v. Andrade,
538 U.S. 63 (2003) (upholding a sentence of fifty years to life under California’s three-strikes law for stealing nine
videotapes); Ewing v. California, 538 U.S. 11 (2003) (upholding a sentence of twenty-five years to life under California’s three-strikes law for the theft of three golf clubs); Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) (upholding a forty-year sentence for possession of nine ounces of marijuana with the intent to distribute); Rummel v. Estelle, 445 U.S. 263 (1980) (upholding a life sentence under Texas’s recidivist statute for obtaining $120.75 by false pretenses). And we and other courts have done the same. See, e.g., United States v. Tolliver, 730 F.3d 1216, 1230–32 (10th Cir. 2013) (upholding a 430-month sentence for using arson in the commission of a felony); United States v. Major, 676 F.3d 803, 812 (9th Cir. 2012) (upholding a 750-year sentence for offenses under 18 U.S.C. § 924(c)), cert. denied, 133 S. Ct. 280; United States v. Meiners, 485 F.3d 1211, 1212–13 (9th Cir. 2007) (per curiam) (upholding a fifteen-year sentence for advertising child pornography); United States v. Uphoff, 232 F.3d 624, 625–26 (8th Cir. 2000) (upholding a five-year sentence for arson of a building).

So the district court resentenced the Hammonds. The government asked for the five-year mandatory minimum but kept its deal to recommend concurrent sentences (rather than stacking two counts of Section 844 to form a ten-year sentence), and the court agreed and imposed that sentence. The Hammonds will necessarily serve 85% of that sentence, less the time they've already served.

Was the five-year sentence cruel and unusual?

It's arguable whether the five-year sentence is colloquially cruel and unusual, or whether the law should treat it as a violation of the Eighth Amendment. But there's no serious argument that the sentence is cruel and unusual under existing Eighth Amendment precedent. The Supreme Court and lower courts have upheld far harsher sentences for far less serious conduct. The Eighth Amendment still has vigor when applied to the death penalty and some conditions of imprisonment, but under modern jurisprudence it does not place any significant limit on the length of imprisonment that may be imposed for convictions. That may not be what the law should be, but it's what the law is, and has been for some time.

Was the mandatory minimum sentence unusual, or unusually imposed?

The Hammond case provided a straightforward application of a statutory mandatory minimum sentence. If you accept the premise of the jury's verdict — that the jury found that the Hammonds maliciously burned government land — then the case does not stand out. Longer mandatory minimums are routinely imposed for less culpable conduct. That doesn't make it right; it just makes it banal.

Was it unusual for the government to appeal the sentence, or for the Hammonds to be returned to jail after serving the original sentence?

Absent a waiver, both the government and the defense have the right to appeal a sentence. Federal prosecutors generally must seek approval from "main Justice" — the Department of Justice in Washington D.C. — before appealing a ruling. That's so the feds don't make what they see as "bad law" by appealing "bad cases," and so the feds' legal stance remains relatively consistent across circuits.

Back in the 1980s and 1990s, before the Supreme Court ruled that the United States Sentencing Guidelines must be treated as recommendations and not as mandates, the government routinely appealed sentences when they concluded that the judge had mis-applied the Guidelines in the defendant's favor. Now that the appellate standard is "reasonableness" of the sentence, the government appeals on that basis less often, but still does so. The United States has always routinely appealed sentences when a district judge has refused to impose a mandatory minimum sentence. Traditionally the Department of Justice has jealously guarded the mandatory nature of mandatory minimum sentences, appealing judicial defiance of them even in otherwise unappealing cases.

It's therefore not unusual at all that the government appealed the Hammonds' sentence.

Nor is the Hammonds' return to prison unprecedented. If the trial court imposes a short sentence and the appellate court overturns that ruling and requires a longer sentence, that's the result. The alternative would be that trial judges could avoid appellate review of sentences by making them short enough that defendants would be done with them by the time the appellate court could review them. That might be appealing to defense lawyers, defendants, and judges who believe in the primacy of trial court discretion, but it's not the law.

The U.S. v. Hammond appeal, reversal, and resentencing are not remarkable in the context of federal criminal law. Maybe they should be, but they aren't. Any suggestion that the proceedings represent a departure from the norm are incorrect.

That's not meant as an endorsement of the result. It's meant to question why this particular exercise of federal criminal authority strikes people as so outrageous, when in fact (as we often discuss here) it's routine.