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Top Federal prosecutor comments on “broken,” “unjust,” and “unsustainable” criminal justice system, proposes reforms

The tides appear to be turning in Washington on the “War on Drugs.”  On August 12, 2013, United States Attorney General, Eric Holder, discussed the “broken” criminal justice system in America, commenting:

“Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities.  And many aspects of our criminal justice system may actually exacerbate these problems. . . .   It’s clear . . . that too many Americans go to too many prisons for far too long, and for no truly good . . . reason.”  (8/12/13, Eric Holder Speech).

He continued:

“[W]idespread incarceration at the federal, state, and local levels is both ineffective and unsustainable.  It imposes a significant economic burden – totaling $80 billion in 2010 alone – and it comes with human and moral costs that are impossible to calculate.”

He also recognized the significant racial disparities in the American criminal justice system, saying, “We also must confront the rality that . . . people of color often face harsher punishments than their peers[, which is] unworthy of our great country, and our great legal tradition.”

* * *

In response to these problems, the Attorney General noted three specific changes of policy within the United States Attorneys Office:

1. “[R]ethinking the notion of mandatory minimum sentences for drug-related crimes”;

2. “updat[ing] [the] frameword for considering compassionate release for inmates”; and

3. “ensur[ing] that every case [] br[ought] serves a substantial federal interest[.]”

* * *

It remains to be seen whether these policy changes will have a significant real-world impact.  However, it is clear that the boss of all federal prosecutors believes the current system is “unjust and unsustainable” and needs to be significantly reworked, and it is likely that skilled federal criminal defense lawyers will be able to utilize these policy changes to obtain more appropriate and just outcomes for individuals facing federal criminal charges or under federal indictment.


Indiana lawyer suspended for ‘illegal alien’ comment

The ABA Journal reported that an Indiana lawyer was suspended for 30 days for sending a letter to opposing counsel and copying the judge in which the lawyer commented on the immigration status of the opposing party, stating, “Your client doesn’t understand what laws and court orders mean i guess.  Probably because she’s an illegal alien . . . .”

The full text of the 2-page opinion is available here.


Elliot Abrams quoted in Lawyers Weekly article about representing students accused of university misconduct

In a post entitled “Student Lawyering,” David Donovan of North Carolina Lawyers Weekly wrote about a new North Carolina law that gives students accused of serious misconduct by a university the right to hire a lawyer to represent them at the university proceeding.

One lawyer was quoted as saying that the new law “will mean that students will have a chance to truly present their case.”

Elliot Abrams, an attorney with Cheshire Parker who has helped a number of students with these types of cases in the past, was quoted saying that the new law “will hopefully restore a level of neutrality and fairness to a system that had become dominated by political pressures unrelated to the guilt or innocence of the accused.”

If you or your son or daughter is accused of violating a college’s honor code or is facing university discipline, please contact us for help.


Judge Rejects Prosecutors’ Request for Long Imprisonment

While prosecutors sought 17+ year term of imprisonment with a fine of less than $250,000, a New York federal district court judge sentenced a former UBS employee to a term of 18 months with a fine of $1m.

The employee, along with others who received similar sentences, were found guilty by a New York jury of defrauding municipalities of millions of dollars in bond deals.

The blog Sentencing Law and Policy had this to say:

I am especially eager to praise Judge Wood for using big financial penalties — which make the government money and seem especially fitting for crimes of greed — while refusing to use big imprisonment terms — which cost the government money and seem unlikely to impact public safety for non-violent white-collar criminals.

(See this WSJ article for more on the case.)


North Carolina Consolidated Sentence Counts as One Prior Conviction for Federal Sentencing

The Fourth Circuit recently ruled that a “consolidated sentence” given in North Carolina state court will be counted as a single prior conviction for federal sentencing purposes.  (See US v Davis and this Fourth Circuit Blog post.)  This ruling significantly reduces the sentencing exposure of many defendants charged in federal court.


Lawyers discuss problems with honest services wire fraud re: campaign contributions

In their brief supporting Kevin Ring‘s petition asking the Supreme Court to review his conviction, a first amendment group and well-known San Francisco criminal defense attorney outline the vague nature of the “honest services” wire fraud doctrine as it applies to lobbying and campaign contributions.  The brief discusses how that uncertainty threatens to reduce legitimate participation in our campaign finance system.

Below is an excerpt of the brief:

According to the [D.C. Circuit] court of appeals, not only may the quid pro quo be implicit, not linked to any specific official act, and provable through evidence of lawful campaign donations; it can also rest on the donor’s unilateral hope that the gift might influence the public official in some unspecified way in the future.

The court of appeals’ decision amounts to a “meat-axe” where a scalpel is needed. . . .  Reasonable, precisely targeted laws regulating gifts to public officials are entirely appropriate and consistent with First Amendment standards. . . . But the vague contours of the honest services statute, as interpreted by the court of appeals, will inevitably “operate to inhibit protected expression by inducing citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” . . . .

In 2010, the U.S. Supreme Court held that the federal crime of Honest Services Wire Fraud (18 U.S.C. § 1346) was unconstitutionally vague as applied to cases that did not include bribery or kickbacks.  (Skilling v. U.S.).  Ring hopes to have his convictions overturned on a similar basis.

UPDATE: Oct. 7, 2013: Supreme Court denies to hear Ring’s appeal.  (SCOTUSblog).



North Carolina Legislative Ethics Committee Investigations

One of the many entities responsible for overseeing the ethical conduct of legislators in North Carolina is the North Carolina Legislative Ethics Committee.  The North Carolina Legislative Ethics Committee is a committee of members of the North Carolina General Assembly.  Half of its members are state senators and half are state representatives.  The Committee has jurisdiction to investigate the conduct of legislators while acting in their official capacity, and its investigations can lead to admonishment, censure, or removal of the legislator from office.

A number of our lawyers have experience handling government ethics investigations.  For  information about the procedures of the North Carolina Legislative Ethics Investigations, please read this primer.

If you have questions or need representation, please do not hesitate to contact us.


Bradley Bannon Authors Op-Ed for N&O on Proposed Cuts to NC Prisoner Legal Services

“Proposed cuts to NC Prisoner Legal Services make no sense”

Published: May 25, 2013 – http://www.newsobserver.com/2013/05/25/2915465/costly-cuts-to-legal-services.html

By Bradley Bannon

In Bounds v. Smith, the U.S. Supreme Court ruled that states are constitutionally required to provide prisoners with “meaningful access” to the courts. The occasion for that ruling? North Carolina’s ongoing failure to provide that access. And after 13 years of litigation, we finally figured out a way to do it: N.C. Prisoner Legal Services.

Now, for reasons that make no legal, economic or moral sense, the state Senate wants to eliminate PLS.

PLS is a private, nonprofit organization under annual contract to provide inmates with meaningful access to the courts. That’s not an option for North Carolina. It’s a constitutional mandate, and for 30 years, PLS has satisfied it.

We have 37,000 inmates in 66 prisons. In 2012, PLS received over 12,000 requests for assistance from them, including complaints about conditions of confinement and wrongful conviction or punishment. About 9 times out of 10, PLS counsels inmates that there is no viable legal claim. When there is, PLS often works with administrators to resolve it. When necessary, PLS litigates in court.

In 2012, for example, after settling seven cases involving the rape or sexual abuse of female prisoners, PLS settled three other abuse cases with the Division of Adult Correction in which DAC agreed to implement a number of systemic changes to protect female prisoners from retaliation for reporting abuse.

Last week, the Senate abruptly canceled the state’s $2.89 million annual contract with PLS in favor of an unfunded mandate to provide inmates with digital legal libraries within five weeks. The proposal – a classic solution in search of a problem – will cost much more than PLS.

In 2012, PLS corrected jail credit errors that generated over $1 million in savings to the state. In just one quarter, PLS corrected sentencing errors that generated over $500,000 in savings. So before discharging any of North Carolina’s other duties to inmates, PLS basically pays for its own annual budget by correcting jail credit and sentencing errors.

By contrast, digital legal libraries don’t pay for themselves. In addition to hardware costs, Ohio pays $1.15 million annually for its software service, and Pennsylvania pays $1.25 million for its libraries. North Carolina has over twice the prisons as either of those states. To provide similar libraries for inmates here would cost over $2 million.

The Department of Public Safety would also have to spend more taxpayer dollars on staff and educational and training programs to maintain the libraries and help inmates use them.

What about inmates who can’t read English, or read at all, or whose vision is impaired, or who suffer from any other disability that hinders access to the digital library? Failure to meet their needs would risk liability under Bounds and the Americans with Disabilities Act, as well as valuable federal funding tied to Title VI.

And what about the 7,000 inmates held in close custody, many of whom are kept in segregation? What about other security risks associated with giving inmates access to computers, rather than the human resources at PLS?

In the end, providing inmates with meaningful access to digital law libraries will cost North Carolina more than the entire contract for PLS. And that’s just the beginning.

The state will also have to provide access to pre-printed forms, copiers and other materials necessary for litigating pro se. The same language barriers and physical and mental disabilities that existed at the research stage will exist at the litigation stage.

Speaking of litigation, it’s difficult to overstate the additional costs and strain on judicial resources that will come from shifting post-conviction litigation from PLS to an entirely pro se model.

As the Supreme Court said about PLS programs in Bounds: “Independent legal advisers can mediate or resolve administratively many prisoner complaints that would otherwise burden the courts, and can convince inmates that other grievances against the prison or the legal system are ill-founded, thereby facilitating rehabilitation by assuring the inmate that he has not been treated unfairly.”

Of course, sometimes inmates are treated unfairly, and their confinement conditions do violate the law. That’s why states must provide them with meaningful access to the courts, and that’s why PLS lawyers and staff choose to provide that service. It certainly isn’t for popularity or riches.

PLS deserves praise, not extinction. While separating the wheat from the chaff of 12,000 annual inmate claims, PLS pays for itself, discharges the state’s constitutional duties to its inmates and saves untold costs of frivolous litigation. Putting digital law libraries in 66 prisons won’t do any of that.

The Senate proposal will end up costing more, providing less and sucking us back into years of unnecessary litigation. It could hardly be a worse idea.

Bradley Bannon is president of the Board of Directors of N.C. Prisoner Legal Services.


Statement of Economic Interest Form

In North Carolina, candidates for office and many government officials are required to file a Statement of Economic Interest form with the North Carolina State Ethics Commission. These forms require disclosure of financial relationships and holdings in order for the North Carolina State Ethics Commission to address potential conflicts of interest in the exercise of a public official’s government duty. These forms become a public record when filed.

As the North Carolina State Ethics Commission’s website notes, failure to file a Statement of Economic Interest form by the deadline may result in a civil penalty, and knowingly concealing or providing false information on the form may result in criminal prosecution. Ultimately, however, negative publicity from ethics enforcement action may be one of the most important reasons to make sure to file this form accurately and on time.

The form is available online at http://www.ethicscommission.nc.gov/sei/blankForm.aspx.

If you have questions or need assistance, please feel free to contact a member of our Election Law, Campaign Finance & Government Ethics section or fill out a contact form on our website and we will be in touch.


State v Shannon

In 2004, with significant input from Academy members, the North Carolina General Assembly made historic changes to our state’s criminal pretrial discovery rules and established “open-file discovery.” Before these changes, prosecutors had wide discretion when deciding what to provide from a criminal investigation to the defense before trial, and many criminal defendants were unfairly convicted as a result. Since the changes, prosecutors have attempted to limit open-file discovery in the legislature and the courts, while the Academy has fought to preserve it.

Read the Full article here


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