Early release under the provisions of 18 U.S.C. 3621 (e) for successful completion of RDAP remains an incentive as well, but has been significantly changed by P.S. 5331-02.  Whereas offenders who previously completed RDAP and were otherwise eligible for early release were eligible for a sentence reduction of up to 12 months, this new policy substantially reduces the eligibility timeframe for some offenders.  Specifically, only those eligible inmates serving 37 months or more will now be eligible for up to a 12 month early release, while those serving 31-36 months will be eligible for only up to a 9 month sentence reduction, and those serving less than 31 months will be eligible for no more than a 6 month sentence reduction.  The authority in determining some eligibility factors for early release, for example whether prior offenses or the current offense might preclude early release, is now shifted from the B.O.P. institutions and Regional Offices to the Designation and Sentence Computation Center (DSCC) in Texas.  Noteworthy, for the first time, is that certain sex offenders, e.g., possessors of child pornography are not automatically disqualified from early release eligibility.  See also P.S. 5162.05 (Categorization of Offenses).

After the Second Circuit threw out the BOP’s rule limiting an inmate’s placement in a halfway house to the lesser of the last ten percent or six months of the sentence (Levine v. Apker, 455 F.3d 71 (2d Cir. 2006)), the BOP said that it would endeavor to honor a judge’s recommendation that a defendant be directly designated to a halfway house (also known as a residential re-entry center) for sentences of twelve months or less.  But the skeptics among us wondered how often that would happen in practice.  Well, in United States v. Iaria, 2008 WL 3842517 (E.D.N.Y. August 11, 2008) (Murray Law LLC’s case), EDNY Judge Weinstein sentenced the defendant to six months in custody, but at defense counsel’s request, agreed to recommend RRC designation.  And lo, the BOP obliged, and Mr. Iaria – a father convicted of illegal gambling, and therefore a very appropriate candidate for this placement – has recently completed his sentence at an RRC in Brooklyn, which permitted him to maintain gainful employment throughout the custodial period. 

In an era when our prisons are bursting at the seams with first-time, non-violent offenders, let’s hope more judges recommend direct designation to RCCs (or even impose probation with a condition of community confinement, so that the issue is not left to the discretion of the Bureau of Prisons). 

Lawyers: JaneAnne Murray, Murray Law LLC (defendant); AUSAs Joseph Lipton, Roger Burlingame

Pretrial detention at the Metropolitan Correctional Center is bad enough, but the first two weeks can be especially unbearable, since they are usually spent in the Special Housing Unit (segregated housing) while the BOP finds the inmate a bed in general housing and conducts some other routine processing like checking his gang affiliations.  Now, that policy has become one of the bases for SDNY Judge Baer to order a trial continuance.  In United States v. Gloss, 2009 WL 161063 (S.D.N.Y. January 21, 2009), the court granted the government’s application to revoke Gloss’s bail two weeks before trial and a day after a superseding indictment had been filed.  Defense counsel moved for a continuance of the trial date, and the court granted it in part because Gloss’s “substantially curtailed communication and visitation privileges” in the SHU would adversely impact his ability to prepare his defense. 

The BOP’s policy of segregating new prisoners at MCC for up to two weeks should get a lot more attention than it does.  There is no reason why the processing of new prisoners needs to take this long, and that two weeks without visits, calls and often necessary medication can take a considerable toll on newly arrested individuals.  In cases where bail is set and it is likely that the defendant will meet the conditions, the policy should be cited as a reason for immediate release.  Why subject a defendant to this kind of onerous detention when no-one seriously doubts that the formalities of the bail conditions will be satisfied? 

The BOP's 500-hour Residential Drug Abuse Program is the one corrections-based program in which BOP inmates can participate and receive time off their sentences (by statute, up to one year, 18 U.S.C. § 3621(e)).  The program, which has stringent eligibility criteria, is not surprisingly, widely popular.  Recent news indicates that it is so popular, there are long waiting lists, inmates are being denied admission unless they have sufficient time remaining on their sentences not just for completion of the program but also to out-last the waiting list, and inmates are receiving significantly less than the maximum one-year allowable sentence reduction.  In close cases, therefore, these developments should be cited to judges as grounds for imposing probationary sentences with non-BOP drug treatment rather than consigning a client to BOP custody for drug treatment that never materializes. 

From Richard Crane, Esq.: At a symposium in Washington last week held by the U.S. Sentencing Commission on sentencing alternatives, Beth Weinman, BOP's RDAP Coordinator, said that the average sentence reduction for inmates successfully completing the RDAP program is now 7.64 months.  She attributed this to the large numbers of inmates eligible for the program and the lack of money to expand the program. She estimates that 40% of the inmates in BOP custody have a diagnosable substance abuse problem and that there is an RDAP waiting list of 7,000 inmates.  Ms. Weinman also said that the BOP is working on a program statement to define exactly what documentations suffice to complement the Bureau's own diagnosis of an inmate's substance abuse problem. Typically, the presentence report or documentation from a treatment provider is acceptable proof, but what else might prove adequate varies from institution to institution. 

From Joel Sickler of Justice Advocacy Group, P.C.: There is also another issue emerging.  According to officials at the BOP's Designation and Sentence Computation Center (DSCC), inmates entering the system with a sentence yielding less than 24 months to serve cannot participate in RDAP. There is no published policy on this change. The DSCC claims it is a new "designation" policy not a "treatment" issue (again, unpublished) and the judiciary has been alerted to it.  Additional information is awaited.  In the meantime, if practitioners want to cite to this "policy" in sentencing letters, they should call the DSCC in Texas to confirm it.

There is a curious irony to Judge Weinstein's decision in United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008).  Although for many it is a quintessential example of liberal judicial activism, the decision is rooted squarely in conservatives' favorite theory, originalism, i.e. interpreting the constitution minus over two hundred years of history.  And, incidentally, it is hardly a philosophy that Judge Weinstein has been known to embrace.

Of course, the bigger irony in the decision is that we must reach back in history to more barbaric times to find compassionate practices that mitigate the barbarism of today's mandatory minimum sentences.  Holding, contrary to decades of precedent, that he had erred in failing to advise a jury of certain mandatory minimum sentences applicable in a child pornography possession case, Judge Weinstein points out that a jury in 1791 would most certainly have known the consequences of their decision (such jury, it should be noted, made up of white, male property owners), and would thus have been empowered to show mercy by manipulating its verdict.  Polizzi puts pay to the idea that any judicial philosophy is less malleable than another or more likely to restrain judicial law-making. 

Facts
 
At the heart of this decision is the tragic story of Peter Polizzi, an Italian immigrant who on the surface had achieved the American dream – successful businessman, father of five, self-taught guitarist.  Psychologically scarred, however, by childhood sexual abuse, he secretly repaired to a double-locked room above his garage over a five-year period, where he viewed and downloaded images of child pornography.   There was no evidence that he had ever forwarded the images to another, or engaged in any improper conduct with a child. 

A subscriber to a website targeted in an FBI investigation, Polizzi was arrested and prosecuted for possession and receipt of child pornography.  At trial, jury rejected his insanity defense and found him guilty on all counts.  He faced a mandatory minimum prison sentence of five years on the receiving counts. 

When informed after their verdict of the mandatory minimum sentence, three jurors indicated that they would have voted not guilty by reason of insanity had they known of the applicable mandatory minimum, and two other jurors indicated that they believed Polizzi should be treated not incarcerated. 

Failure to Advise Jury of Mandatory Minimums

Building on these jurors’ amended thoughts, Judge Weinstein crafts a compelling opinion that the defendant had a right to have his jury informed in advance of the mandatory sentence riding on their decision.  Reviewing legal and historical scholarship regarding criminal practices in the Thirteen Colonies, the court concludes that trial juries during that period would not only have known of the harsh sentences to be imposed on a finding of guilt, but also "would have been expected to deliver a verdict of not guilty or of guilty of a lesser crime had it believed the punishment excessive for the crime actually charged and proved."

Why should such practices apply today?  “With the advent of mandatory minimum sentences . . . federal juries today again face-albeit often unknowingly –‘either-or’ choices similar to those facing the British and colonial juries of 1791 [i.e. death/transportation/whipping or conviction of a lesser crime]. To fully exercise their historical function, juries today must understand the two eithers; they cannot rely on the court to mitigate because it is bound by the statutory minimum term of imprisonment.”  If juries are not just fact-finders, if they are truly the bulwark that curbs judicial, executive and legislative power - "the conscience of the community and guardian against government oppression ... [and] a 'safety valve' for exceptional cases" - then, Judge Weinstein reasons, juries must be entrusted with complete information regarding the consequences of their actions, including information about their power to dispense mercy through nullification.

Putting aside concerns that hearkening back to the days of the Eighteenth Century would not always be a giant step forward, or that knowledge of mandatory minimums may harden rather than melt jurors' hearts, the Polizzi holding is a persuasive and creative approach to mitigating the severity of mandatory minimum sentences. 

Few expect this decision to survive Second Circuit scrutiny. But Judge Weinstein has his eye on higher courts - the court of public opinion for one, and, of course, the Supreme Court, which given its current ideological make-up, may be more than a little receptive to his call for a return to 1791 and a limited reintroduction of the jury’s power to nullify.   The Supremes may also revisit the issue addressed at the beginning of the Polizzi decision: that the statute at issue is void for vagueness and overbreadth, because it has the potential to criminalize innocent behavior. 

Lack of Scienter

In a nutshell, the Polizzi court finds the statute problematic because it penalizes “knowing” possession and receipt of child pornography, but does not require on its face that the individual "intend" to possess such material. While equating knowledge with criminal intent may work with traditional crimes like possession of stolen goods or drugs, the court points out, this construct fails to account for the myriad ways in which one can inadvertently receive and possess materials via the Internet - "where email may be automatically received, files can instantaneously download themselves, web pages shown for only a fraction of a second are automatically stored, and knowledge can first be acquired after the fact of receipt.”  As one FBI agent put it, the court quotes, "[o]ne click, you're guilty."  In fact, the court claims (perhaps a bit hysterically), that one of its interns refused to conduct certain Internet research on the case for fear of committing a crime. 

It is this significant potential for the statute to penalize accidental and benign conduct that renders it void for vagueness and overbreadth - problems, the court concludes, that cannot be rescued by the stingy safe harbor provision in the statute, or suspect judicial efforts to imply an intent element.  Constrained by precedent to reject the challenge, Judge Weinstein clearly believes this is an area ripe for revisitation by the appellate courts.

Other Challenges

The Polizzi opinion also addresses a number of interesting challenges that, for one reason or another, were inappropriate in this particular case or are foreclosed by current precedent.  They may however prove more fruitful under a different set of facts or in the future as society's perception of these issues evolve:

• Eighth Amendment: Five years for "psychologically stunted man who . . . suffered vicious sexual abuse as a child" and who needs "treatment not a destructive long prison sentence," is undoubtedly cruel, the court concludes, but unfortunately, is not unusual, where "cruelty in punishment is adopted by Congress as policy."  Moreover, although some may find the punishment in Polizzi's case to be "shockingly disparate" - particularly in light of the passive nature of his crime, his psychological disabilities, his low risk of recidivism, and the public "scourging" or registration as a sex offender that awaits him after prison - it is not unconstitutionally "grossly disproportionate" to the crime committed under applicable case-law.  In this context, the court does an interesting analysis of the median sentences meted out by states for similar conduct (producing some very useful material for those seeking to challenge draconian sentencing guideline ranges in child pornography case), and also importantly queries the tendency to lump all sex offenders together when addressing their future dangerousness.  Such conclusions "fail to take into account differences between pederasts and voyeurs."

• Irrationality: Similarly, the five-year mandatory minimum for receipt of child pornography, while a severe penalty for Polizzi's crime, is not irrational, as that term is defined, despite the fact that the possession count does not carry any mandatory minimum.  Congress is not held to "a precise calculus of harm and risk."  Importantly, in this section, the court notes that the evidence regarding whether child pornography actually encourages viewers to commit physical sexual offenses (often presented as a given) is in fact inconclusive.

• Multiplicity:  Conflation of possession and receipt raises a problem of multiplicity (indictment improperly charges a single offense multiple times in separate counts, when only one crime has been committed).  The court did not need to address this issue since it was setting aside the verdict on the receiving counts. 

• Rule of Lenity: This doctrine of statutory construction requires a court to resolve any ambiguity in favor of a defendant.  Unfortunately, the mandatory minimum Polizzi was subject to is totally unambiguous, and does not (but surely should) "contain an implicit reasonableness limitation." 

• First Amendment: The court notes the tension created between First Amendment rights (such as the right to view adult pornography in privacy) and the expansive regulatory and enforcement efforts to curb exploitation of children, and cites several decisions that have struck down child pornography legislation as unconstitutionally overbroad.  One of these decisions, however, was recently overruled by the Supreme Court in United States v. Williams, 2008 WL 2078503 (May 19, 2008) ("pandering" provision of PROTECT Act neither overbroad nor vague).

• Fourth Amendment: The court highlights the tension between legal constructs of what is a "reasonable" expectation of privacy in the online context, and the actual expectations of online users.  In particular, he questions the validity of denying Fourth Amendment protections to non-substantive communications (such as email subject headings and Internet search queries) when the line between content and non-content may be impossible to draw, and thus lead to unduly invasive searches by law enforcement.

• Separation of Powers: The court notes the concern that statutory mandatory minimums have shifted too much power from the judiciary to the executive, but concludes that "on the basis of current precedent," applying the functional approach of analyzing statutes under the separation of powers doctrine, the mandatory minimum prescribed for receipt of child pornography passes muster.  The kicker here is "current precedent," which the court obviously believes needs revisiting. 

This huge decision (not just literally in length, but also in heart and compassion) is a must-read for anyone defending someone charged with possession of child pornography. 

When does good lawyering become criminal conduct?  This thorny question is at the heart of several recent prosecutions of lawyers for conduct within their role as lawyers, sending a chill down the spine  of many a committed advocate: prosecutions such as those of Mayer  Brown partner Joseph Collins, Gen Re general counsel Robert Graham, Sidley Austin partner Raymond Ruble, Hollinger International general  counsel Mark Kipnis, Lynne Stewart, Computer Associates general counsel Steve Woghin, Rite Aid general counsel Franklin Brown, to name but, well, several.

The issue is highlighted in two recent SDNY cases, addressing the right to counsel.  In the first, United States v. Hashmi, 06 CR 442  (LAP), 2008 WL 216936 (S.D.N.Y. January 16, 2008), a case involving  charges of providing material support to Al Qaeda, the court held that  a defendant's right to counsel was not violated by a requirement that  the defense lawyer obtain a security clearance under the Classified  Information Procedures Act (CIPA) before engaging in discovery, nor by the requirement that the lawyer sign an acknowledgement (but not an  endorsement) of the Special Administrative Measures ("SAMs") placing  limitations on communications between the defendant and his attorneys.  

Some SAMs included preventing the defendant from speaking with the defense lawyer's representatives unless the lawyer was present, requiring the use of a pre-cleared translator, giving the BOP discretion to make attorney visits "non-contact," and preventing the defendant from communicating with news media.

Holding that the government "has a strong interest in preventing the irreparable harm of disclosing classified information" and "it is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," the court held that "requiring a security clearance does not infringe on the Defendant's right to counsel of choice." 

What is not elucidated in the decision is why the defendant's suggestion of a protective order would not achieve the same result.  Implicit in the decision is the assumption that the lawyers who would not succeed in obtaining, or would not choose to obtain, a security clearance are not trustworthy.  In the absence of any statistical analysis - and indeed the litany of advocates recently prosecuted for  their advocacy includes many who would no doubt have sailed through a  security clearance process - the court's conclusion appears speculative and unpersuasive. 

As for the SAMs, the court concluded that they were "reasonably  related to legitimate penological interests" where there was evidence of the defendant's "willingness to provide aid to Al-Qaeda," "stated intention to overthrow the United States through whatever means necessary," and "threatening statements to British authorities."

The shadow over the entire issue, of course, is the prosecution of  criminal defense lawyer, Lynne Stewart, for, among other things, making a false statement in signing the SAMs affirmation, on the  theory that when she signed it, she had no intention of abiding by it.  In response to Hashmi's lawyers' concern that the SAMs affirmation similarly subjects him to potential prosecution, the court had this to  say: "counsel would do well to avoid the conduct that formed the basis of that attorney's conviction - smuggling messages from her client to  co-conspirators, despite acknowledging the SAMs that forbade her from doing so."

The court's comment, however, doesn't really address the problem, which is the potentially chilling effect of the prospect of prosecution on lawyers subject to SAMs restrictions.  There are many extremely able advocates who could not stomach being subject to SAMs restrictions, or, more critically, being subject to the penalties for  violating SAMs and thus, potentially, the whim of a zealous prosecutor who decides the lawyer has failed to comply with their previous SAMs acknowledgement.  These able advocates would absent themselves from the already small pool willing to defend defendants subject to SAMS to  begin with, a scenario with deeply troubling implications about the quality of representation for the some of the most villified defendants in our criminal justice system. 

It is hoped that when these issues reach the Second Circuit, either through this case or another, that the balance will tip in favor of ensuring excellent representatives for accused terrorists, unfettered by conscientious or practical objections to the requirements of undergoing security clearances or signing SAMs acknowledgements.