Category Archives: Sentencing

Reconsider Long Prison Sentences?

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Excellent article in Inside Sources by director of Strategic Initiatives at The Sentencing Project argues our society must reconsider long prison sentences.

Gotsch writes that a measure of rationality has come to federal sentencing after President Trump signed the First Step Act. The legislation has led to almost 1,700 people receiving sentence reductions, most of whom have been freed. Ninety-one percent are African American. Douglas and dozens of others sentenced to die in prison are among the beneficiaries.

The U.S. Sentencing Commission reports that the resentencing provisions of the First Step Act reduced the average sentence of 20 years by an average of six years for those who qualified.

“The reductions, while modest, are profound for the people and families ensnared by long prison terms, and who have been generally left out of criminal justice reforms until now,” writes Gotsch.

“Congress should take its next step to address a broader cohort of incarcerated people with lengthy sentences.”

Gotsch’s arguments hinge on the fact that lengthy prison sentences seem inappropriate for prison populations that essentially “age out” of crime. Half of the people in federal prisons are serving sentences longer than 10 years. Almost 20 percent of the population is more than 50 years old.

“Criminal justice research has long confirmed that people generally age out of crime, so long sentences provide diminishing returns for public safety,” says Gotsch. “Tax dollars that could be used to invest in youth, improve schools, expand drug treatment and medical and mental health care, are instead invested in prisons to incarcerate a growing elder population despite their limited likelihood of recidivism. Policy should reflect the research.”

The Second Look Act, newly introduced sentencing reform legislation from Senator Cory Booker and Representative Karen Bass, follows the lead of experts on crime and punishment and offers a transformational approach. The bill seeks to curb long sentences by offering a sentencing review by a federal judge to people with sentences longer than 10 years. Individuals who have served at least 10 years must show they are rehabilitated and are not a threat to public safety to qualify for a sentence reduction. People who are 50 or older would have a presumption of release because of their substantially lower recidivism rates.

“For the bipartisan lawmakers in Washington, and the 2020 presidential candidates who have pledged to address the problems in the criminal justice system, a broader approach to challenge mass incarceration and promote public safety is long overdue,” says Gotsch.

Please contact my office if you, a friend or family member face criminal charges which could include a prison sentence. It’s very important to hire an experienced, competent competent attorney who can either prepare a strong case for jury trial or navigate a plea deal which avoids prison.

Are Long Prison Sentences Necessary?

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“For decades, while we made it increasingly difficult to obtain release, we have sent people to prison for longer and longer. We became reliant on extreme sentences, including mandatory minimums, “three-strike” laws, and so-called truth-in-sentencing requirements that limit opportunities for people to earn time off their sentences for good behavior. As a result, the United States laps the world in the number of people it incarcerates, with 2.2 million people behind bars, representing a 500 percent increase over the past four decades, with 1 in 9 people in prison serving a life sentence.”

Moreover, the authors argue that legislation is needed at the federal level and in every state to allow everyone after a certain period in prison the opportunity to seek sentence reductions. Sentence review legislation recognizes that as we have increased the length of prison sentences and limited the ability to obtain release, our prisons have become overwhelmed with people whose current conduct proves further incarceration is not in the public interest.

LONG PRISON SENTENCES DO NOT REDUCE CRIME.

“We increased sentence lengths and made it more difficult for people to be released because we were told it was needed for public safety,” said the authors. “But sending people to prison for long periods does not reduce crime.”

In fact, longer sentences, if anything, create crimeDavid Roodman, a senior adviser for Open Philanthropy, reviewed numerous studies on the impact of incarceration and concluded that “in the aftermath of a prison sentence, especially a long one, someone is made more likely to commit a crime than he would have been otherwise.”

Additionally, the authors say that not only are lengthy prison sentences ineffective at reducing crime, but they have devastated low-income and minority communities. As the Vera Institute aptly put it: “We have lost generations of young men and women, particularly young men of color, to long and brutal prison terms.” While black people are just 13-percent of the country’s population, they account for 40 percent of the people we incarcerate.

If the ineffectiveness of long prison terms or the impact on poor communities of color is not reason enough to revisit lengthy prison sentences, the financial drain of long prison terms is staggering. For example, U.S. prisons spend $16 billion per year on elder care alone. Billions of dollars are diverted to prisons to care for the elderly who would pose no real risk if released when that money could be going to our schools, hospitals, and communities.

Given this reality, the authors say, we need to pursue every option that would safely reduce our prison population. One proposal by the American Law Institute recommends reviewing all sentences after a person has served 15 years in prison. Another example is the bill Sen. Cory Booker (D-N.J.) and Rep. Karen Bass (D-Calif.) introduced that would provide sentence review for anyone who has served more than 10 years in prison or who is over 50 years old. Notably, neither proposal is restricted by the type of offense, which is critical, because to combat mass incarceration, to echo the Prison Policy Initiative, reform has “to go further than the ‘low hanging fruit’ of nonviolent drug offenses.”

“Measures that promote sentence review would not automatically release anyone,” say the authors. “Instead, people would be given a chance to show a court that they are no longer a danger to public safety. A judge—after weighing all relevant circumstances, including hearing from any victims and their families—would then decide whether a person should be released.”

And numerous studies have shown that decreasing sentences does not increase crime. A recent Brennan Center for Justice report documented 34 states that reduced both their prison population and their crime rates, the Sentencing Project concluded that unduly long prison terms are counterproductive for public safety, and the Justice Policy Institute found little to no correlation between time spent in prison and recidivism rates.

My opinion? Some crimes need punishment. However, we have forgotten that our justice system is supposed to rehabilitate people, not just punish them. Our policies should reflect the ability of people to change over the course of years—or decades—of incarceration.

Exigent Circumstances Support Warrantless Blood Draw

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In State v. Anderson, the WA Court of Appeals held that exigent circumstances supported a warrantless blood draw at the scene from a driver arrested for vehicular homicide and vehicular assault.

BACKGROUND FACTS

In October 2014, Anderson was living with his high school friend, Mr. Powers. Powers would occasionally let Anderson drive his car. The evening of October 24, 2014, Anderson drank at home and then went to a bar to watch a hockey game. About 12:30 am., Powers heard Anderson’s voice and then heard his car start. Anderson took Powers’s car without his permission.

Around 2:00 a.m., Sergeant Jamie Douglas responded to a multivictim car crash in Auburn. At the scene, Douglas saw an “obliterated” car off the roadway, a path of debris, an uprooted tree with an 18-inch base, uprooted utility boxes, and guy wires that had been supporting a telephone pole torn out of the ground. The speed limit on the road was 35 m.p.h. but, based on the scene, Douglas estimated the car was traveling close to 100 mph. Deputy Jace Hoch had observed the car earlier traveling at about 90 mph. but could not catch it. He asked dispatch to let the Auburn Police Department know that the car was heading toward Auburn. Four of the five passengers in the car died.

Multiple individuals who responded to the scene smelled alcohol on Anderson. Anderson told paramedic Paul Nordenger that he had had “a few drinks.” Nordenger drew Anderson’s blood at the scene without a warrant. Test results showed that his blood alcohol content (BAC) was 0.19 grams of alcohol per 100 milliliters of blood and that he had 2.0 nanograms of THC (tetrahydrocannabinol) per milliliter. Anderson was taken to Harborview Medical Center. Toxicologist Asa Louis testified that a second blood draw taken there showed a BAC of 0.18.

The State charged Anderson with four counts of vehicular homicide, one count of vehicular assault, one count of reckless driving, and an a sentencing aggravator for injury to the victim substantially exceeding the level of bodily harm necessary to satisfy the elements of vehicular assault. A jury convicted Anderson as charged.

Among other issues, Anderson claimed that exigent circumstances did not exist for officers to conduct a warrantless blood draw at the scene.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that as a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. A blood test is a search and seizure. A recognized exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist.

“A court examines the totality of the circumstances to determine whether they exist,” said the Court. “They exist where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.” Furthermore, the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, for example, when delay results from the warrant application process.”

Next, the Court of Appeals’ legal analysis focused on prior cases U.S. Supreme Court and WA Supreme Court cases. It observed that Missouri v. McNeely upheld the proposition that the presence of other officers weighs against the conclusion that exigent circumstances existed. Also, in State v. Inman, the WA Court of Appeals held that exigent circumstances for a blood draw existed when Mr.  Inman crashed his motorcycle on a rural road, injuring him and his passenger. In that case, Inman had facial trauma; including bleeding and abrasions on the face, and a deformed helmet. A bystander told police that Inman had been unconscious for five minutes before regaining consciousness. A paramedic administered emergency treatment. A responding officer spoke with lnman and smelled intoxicants on him. Finally, Inman admitted that he had been drinking before driving his motorcycle.

“The circumstances here are more like those in Inman,” said the Court of Appeals. “Similar to Inman, the trial court found that Anderson was in a high-impact collision resulting in serious injuries.  Here, Mr. Anderson sustained serious injuries that required treatment, multiple responders smelled alcohol on him, he told an officer at the scene that he had been drinking before driving, a paramedic told the first responding officer that the medics would be giving the driver medication and intubating him, the first responding officer knew from his experience in law enforcement and as a paramedic that this emergency treatment could impair the integrity of the blood sample, and that it would take 40 to 90 minutes to obtain a warrant for a blood draw.

“A warrant was not practical because the delay caused by obtaining a warrant would result in the destruction of evidence or postpone Anderson’s receipt of necessary medical care,” reasoned the Court of Appeals. “The totality of the circumstances establish that exigent circumstances existed to justify a warrantless blood draw.”

Please contact my office of you, a friend or family member are charged with an alcohol-related driving charge and police execute a warrantless blood draw. Retaining an experienced DUI attorney who is experienced with the legalities of blood draws is the first and best step toward obtaining justice.

Lawmakers Consider Giving Judges More Discretion

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Great article by James Drew of the News Tribune says that over the next 20 months, state legislators shall study, debate, and vote on what could be the first major reform of Washington’s criminal sentencing law since 1981.

The starting point of the deliberations is a stack of recommendations from a state commission that would give judges more discretion in how they sentence adults convicted of felonies. The change could help the state reduce its reliance on incarceration and move more toward rehabilitation of offenders.

The goal of overhauling the criminal sentencing law is to improve the system by simplifying it, but there are key questions looming for lawmakers, said Rep. Roger Goodman, the Kirkland Democrat who is chairman of the House Public Safety Committee. Disparities — a lack of equality or similarity in a way that is unfair — can occur by race, gender, geography, income and other factors, but the discussion last month touched heavily on race.

At a July 16 legislative work session, Sen. Jeannie Darneille, D-Tacoma, questioned whether the Criminal Sentencing Guidelines Commission had studied systems in other countries that would help Washington address concerns throughout the United States about “mass incarceration.”

The Legislature adopted the Sentencing Reform Act in 1981 and it took effect three years later. Since then, lawmakers have amended it dozens of times. The state’s three appellate courts and the Supreme Court have issued several rulings interpreting its provisions.

Goodman said there are several recommendations in a July 1 report by the Criminal Sentencing Guidelines Commission that the Legislature can tackle during its 60-day session next year.

Drew reported that a person’s greatest risk of committing another crime after release from confinement is within the first three to six months, according to an analysis by the Council of State Governments.

Under the current system, a judge would have a sentencing range of 12-14 months for a defendant who is convicted of a Class B assault with a deadly weapon — and 36 months tacked on for use of a firearm. The 12-14 month sentence carries a 33 percent off for good behavior in prison, but the 36-month enhancement does not.

“The sentence is opaque and difficult for the public to understand and allows almost no discretion for the trial court,” the commission report said.

One of the reform proposals from the commission would provide a sentence range from 12-24 months, but any sentence between six months and 30 months would be deemed reasonable. The entire sentence would carry the same good behavior in prison provision to reduce the sentence.

My opinion? This is good news. If allowed, a sentencing judge may give more weight to certain intangible factors.  For example, a judge may take account of a defendant’s good deeds in other areas of his life, considering whether the crime is an isolated incident or aberration on the record of an otherwise well-intentioned individual or whether the crime is just one chapter in a life filled with deceit.

Part of my practice includes drafting sentencing memorandums and assembling merit packages for clients convicted or felonies. These merit packages consist of character reference letters, proof of treatment, college transcripts (if applicable) favorable job reviews, security clearances, etc. The goal is to paint a favorable picture of the defendant that describes them beyond the criminal charges.

The Feds on Crime Under Jeff Sessions

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 of the Washington Post describes the dramatic and controversial changes in policy Jeff Sessions has made since becoming the Attorney General under President Trump months ago.
“From his crackdown on illegal immigration to his reversal of Obama administration policies on criminal justice and policing, Sessions is methodically reshaping the Justice Department to reflect his nationalist ideology and hard-line views — moves drawing comparatively less public scrutiny than the ongoing investigations into whether the Trump campaign coordinated with the Kremlin.”
Apprently, Sessions has even adjusted the department’s legal stances in cases involving voting rights and lesbian, gay, bisexual and transgender issues in a way that advocates warn might disenfranchise poor minorities and give certain religious people a license to discriminate.
“The Attorney General is committed to rebuilding a Justice Department that respects the rule of law and separation of powers,” Justice Department spokesman Ian Prior said in a statement, adding, “It is often our most vulnerable communities that are most impacted and victimized by the scourge of drug trafficking and the accompanying violent crime.”

Immigration
Zapotsky and Horwitz write that unlike past attorneys general, Sessions has been especially aggressive on immigration. He served as the public face of the administration’s rolling back of a program that granted a reprieve from deportation to people who had come here without documentation as children, and he directed federal prosecutors to make illegal-immigration cases a higher priority. The attorney general has long held the view that the United States should even reduce the number of those immigrating here legally.

Zapotsky and Horwitz said that in an interview with Breitbart News in 2015, then-Sen. Sessions (R-Ala.) spoke favorably of a 1924 law that excluded all immigrants from Asia and set strict caps on others.

“When the numbers reached about this high in 1924, the president and Congress changed the policy and it slowed down immigration significantly,” Sessions said. “We then assimilated through 1965 and created really the solid middle class of America, with assimilated immigrants, and it was good for America.”

According to Zapotsky and Horwitz, Vanita Gupta, the head of the Justice Department’s civil rights division in the Obama administration who now works as chief executive of the Leadership Conference on Civil and Human Rights, said Sessions seems to harbor an “unwillingness to recognize the history of this country is rooted in immigration.”

“On issue after issue, it’s very easy to see what his worldview is of what this country is and who belongs in this country,” she said, adding that his view is “distinctly anti-immigrant.”

 

Police Oversight & Sentencing

Zapotsky and Horwitz write that questions about Sessions’s attitudes toward race and nationality have swirled around him since a Republican-led Senate committee in 1986 rejected his nomination by President Ronald Reagan for a federal judgeship, amid allegations of racism. In January, his confirmation hearing to become attorney general turned bitter when, for the first time, a sitting senator, Cory Booker (D-N.J.), testified against a colleague up for a Cabinet position. Booker said he did so because of Sessions’s record on civil rights.

Sessions ultimately won confirmation on a 52-to-47 vote, and he moved quickly to make the Justice Department his own. Two months into the job, he told the department’s lawyers to review police oversight agreements nationwide, currying favor with officers who often resent the imposition of such pacts but upsetting those who think they are necessary to force change.

Zapotsky and Horwitz also said that Sessions imposed a new charging and sentencing policy that critics on both sides of the aisle have said might disproportionately affect minority communities and hit low-level drug offenders with stiff sentences.

“Allies of Sessions say the policy is driven not by racial animus but by a desire to respond to increasing crime,” write Zapotsky and Horwitz. “The latest FBI crime data, for 2016, showed violent crimes were up 4.1 percent over the previous year and murders were up 8.6 percent — although crime remains at historically low levels. The Bureau of Prisons projects that — because of increased enforcement and prosecution efforts — the inmate population will increase by about 2 percent in fiscal 2018, according to a Justice Department inspector general report.”

Zapotsky and Horwitz wrote that Larry Thompson, who served as deputy attorney general in the George W. Bush administration and is a friend of Sessions, said that although he disagrees with the attorney general’s charging policy, he believes Sessions was “motivated by his belief that taking these violent offenders off the streets is the right way to address the public safety issues.”

Civil Rights & Hate Crimes

According to Zapotsy and Horwitz, Sessions’s moves to empower prosecutors have led to a concerted focus on hate-crimes prosecutions — a point his defenders say undercuts the notion that he is not interested in protecting the rights of minorities or other groups. Prosecutors have brought several such cases since he became attorney general and recently sent an attorney to Iowa to help the state prosecute a man who was charged with killing a gender-fluid 16-year-old high school student last year. The man was convicted of first-degree murder.

But while civil rights leaders praised his action in that case, Kristen Clarke, president and executive director of the national Lawyers’ Committee for Civil Rights Under Law, said that it “stands in stark contrast to his overall efforts” to roll back protections for transgender people.

Shortly after he became attorney general, Sessions revoked federal guidelines put in place by the Obama administration that specified that transgender students have the right to use public school restrooms that match their gender identity. In September, the Justice Department sided in a major upcoming Supreme Court case with a Colorado baker, Jack Phillips, who refused to bake a wedding cake for a same-sex couple because he said it would violate his religious beliefs.

Sessions recently issued 20 principles of guidance to executive-branch agencies about how the government should respect religious freedom, including allowing religious employers to hire only those whose conduct is consistent with their beliefs. About the same time, he reversed a three-year-old Justice Department policy that protected transgender people from workplace discrimination by private employers and state and local governments.

The Justice Department has similarly rolled back Obama administration positions in court cases over voting rights.

In February, the department dropped its stance that Texas intended to discriminate when it passed its law on voter identification. And in August, it sided with Ohio in its effort to purge thousands of people from its rolls for not voting in recent elections — drawing complaints from civil liberties advocates.

At a recent congressional hearing, Sessions said the department would “absolutely, resolutely defend the right of all Americans to vote, including our African American brothers and sisters.”

According to Zapotsky and Horwitz, critics say that Sessions’ record shows otherwise. “We are seeing a federal government that is pulling back from protecting vulnerable communities in every respect,” Clarke said. “That appears to be the pattern that we are seeing with this administration — an unwillingness to use their enforcement powers in ways that can come to the defense of groups who are otherwise powerless and voiceless.”

My opinion? Watching the actions of the feds – and especially the top federal prosecutor for the United States – gives us a litmus test which defines the shape of things to come on a more local level. The reason why it’s important to watch the movements of federal prosecutions is because they impress upon – and persuade – the priorities of state prosecutions.

Let’s see what happens.

Black Men Sentenced Longer

PHOTO: Study says black men serve longer sentences for same crime than white men.

Does Sex Offense Registration Violate the Constitution?

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An article written by Jacob Sullum of www.reason.com talks about how a federal judge recently ruled that Colorado’s online database of sex offenders violates the Eighth Amendment of the U.S. Constitution.

Last week, a federal judge recognized what anyone dealing with the burdens, obstacles, and dangers of life on the registry knows: Its punitive impact far outweighs any value it might have in protecting the public. In fact, U.S. District Judge Richard Matsch concluded, registration can violate the Eighth Amendment by imposing what amounts to cruel and unusual punishment.

The three men who challenged Colorado’s Sex Offender Registration Act were sentenced to probation. Two of them also served 90 days in jail. Their real punishment began later, when they found that appearing in the state’s online registry of sex offenders made it impossible to lead a normal life.

David Millard

David Millard, who pleaded guilty to second-degree sexual assault on a minor in 1999, has been employed by the Albertsons grocery chain since 2003. His job was jeopardized after a customer saw his name and photo on a sex offender website.

Millard was forced to move repeatedly after his status as a registered sex offender was revealed, once by police and once by a local TV station. The second time, he had to fill out about 200 rental applications before finding an apartment he could rent.

Millard later bought a house in Denver, which is periodically visited by police officers seeking to verify his address. “If he is not home when they visit,” Matsch notes, “they leave prominent, brightly colored ‘registered sex offender’ tags on his front door notifying him that he must contact the Denver Police Department.”

Millard experienced name calling and vandalism, and he worries that worse may be coming. “Because of the fear and anxiety about his safety in public,” Matsch writes, “Mr. Millard does little more than go to work, isolating himself at his home.”

Eugene Knight

Eugene Knight was convicted of attempted sexual assault on a child in 2006 based on a crime he committed when he was 18. He’s a “full-time father” because he is unable to find work that pays well enough to cover the cost of child care. However, Knight is not allowed on school grounds to drop off his kids or attend school events.

Arturo Vega

Arturo Vega, who pleaded guilty to third-degree sexual assault as a juvenile but is listed in Colorado’s public database because he failed to comply with registration requirements he did not understand, has tried twice to get off the registry. Both times his petitions were rejected by magistrates who insisted he prove a negative: that he was not likely to commit another sexual offense.

The Court’s Rationale

Judge Matsch held that the lower court’s justices did not foresee the ubiquitous influence of social media, the proliferation of commercial websites peddling information from sex offender registries, or the cheap scare stories that local news outlets would produce based on that information. Those developments have magnified the life-disrupting potential of registration, as illustrated by the experiences of the plaintiffs in this case.

Judge Matsch noted that because of the registry, these men face “a known, real, and serious threat of retaliation, violence, ostracism, shaming, and other unfair and irrational treatment from the public…regardless of any threat to public safety based on an objective determination of their specific offenses, circumstances, and personal attributes.”

By forcing sex offenders into this precarious situation, Judge Matsch reasoned, the state is punishing them. He noted that State or federal courts have reached the same conclusion in AlaskaMaineMichiganNew HampshireOklahoma, and Pennsylvania.

“Maybe someday the Supreme Court will stop pretending otherwise,” wrote Sullum.

Join Offenses = Bad Results

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In State v. Linville, the WA Court of Appeals held that the defendant’s numerous criminal charges cannot be “joined” to a charge of leading organized crime.

BACKGROUND FACTS

Following an increase in residential burglaries in Thurston County, law enforcement
officers noticed similarities among several burglaries. Officers ultimately recovered numerous items taken during the burglaries from Linville’s home.

The State charged Linville with 1 count of leading organized crime, 35 counts of
residential burglary, 1 count of attempted residential burglary, 4 counts of first degree burglary, 3 counts of second degree burglary, 39 counts of trafficking in stolen property, 17 counts of first degree theft, 18 counts of second degree theft, 1 count of attempted second degree theft, 3 counts of third degree theft, 5 counts of theft of a firearm, 5 counts of identity theft, 4 counts of unlawful possession of a firearm, 1 count of possession of stolen property, and 1 count of possession of a controlled substance, for a total of 138 charges with numerous deadly weapon sentencing enhancements. The State alleged that Linville was armed with a firearm during the commission of the four first degree burglaries.

At no point did Linville argue that joinder of any offenses was improper under RCW 9A.82.085.

During the jury trial, the State presented testimony from numerous co-defendants who identified Linville as the instigator and leader of the burglary scheme. The co-defendants’ testimony was corroborated by law enforcement officers and victims who described the common characteristics among the burglaries and identified stolen goods recovered from the homes of Linville and his co-defendants. The jury found Linville guilty of 137 offenses, and he was sentenced to 914 months in prison, which included 240 months for four firearm sentencing enhancements.

Linville appealed on the argument that his defense counsel gave ineffective assistance of counsel by failing to move for severance of offenses that were not part of the pattern of criminal profiteering activity from the charge of leading organized crime under RCW 9A.82.085.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court agreed with Linville. It reasoned that the Sixth Amendment guarantees the effective assistance of counsel in criminal proceedings. To show ineffective assistance of counsel, a defendant must show that (1) defense counsel’s conduct was deficient, and (2) the deficient performance resulted in prejudice. To show deficient performance, Linville must show that defense counsel’s performance fell below an objective standard of reasonableness. To show prejudice, Linville must show a reasonable possibility that, but for counsel’s purportedly deficient conduct, the outcome of the proceeding would have differed.

  1. Counsel Rendered Deficient Performance.

First, the Court reasoned that RCW 9A.82.085 states the following, in relevant part:

“In a criminal prosecution alleging a violation of leading organized crime, the state is barred from joining any offense other than the offenses alleged to be part of the pattern of criminal profiteering activity.”

RCW 9A.82.010(12) defines “pattern of criminal profiteering activity” as “engaging in at least three acts of criminal profiteering.” RCW 9A.82.010(4) defines “criminal profiteering” as:

“any act, including any anticipatory or completed offense, committed for financial gain, that is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, would be chargeable or indictable under the laws of this state had the act occurred in this state and punishable as a felony and by imprisonment for more than one year, regardless of whether the act is charged or indicted, as any of the following: . . . .”

RCW 9A.82.010(4) then lists 46 crimes and their defining statutes. First and second degree theft, trafficking in stolen property, leading organized crime, and identity theft are included in the list. However, residential burglary, first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, unlawful possession of a firearm, and possession of stolen property are NOT included in the list. 

Consequently, the Court reasoned that a plain reading of the statutes made it clear that the State was barred from joining charges of residential burglary, first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, unlawful possession of a firearm, and possession of stolen property to Linville’s prosecution for leading organized crime.

“The unreasonable failure to research and apply relevant statutes without any tactical purpose constitutes deficient performance. Here, defense counsel’s failure to object to the State’s improper joinder of charges was unreasonable and constitutes deficient performance.”

2. Counsel’s Deficient Performance Resulted in Prejudice to the Defendant’s Case.

The Court said that in order to succeed on his claim of ineffective assistance of counsel, Linville must also show that but for his attorney’s deficient performance the outcome of the trial would have differed, and therefore the deficient performance was prejudicial.

To this end, the Court reasoned that this issue is somewhat different than the related issue of discretionary joinder or severance pursuant to CrR 4.4(b). Under CrR 4.4(b), a trial court must grant a motion to sever offenses if it determines that “severance will promote a fair determination of the defendant’s guilt or innocence of each offense.” A defendant seeking such a severance under CrR 4.4(b) must show that a trial involving all counts would be so manifestly prejudicial as to outweigh the concern for judicial economy.

In contrast, the Court explained that RCW 9A.82.085 leaves no room for the trial court’s discretion. Under that statute, the State is barred from joining offenses other than those alleged to be part of the criminal profiteering activity in a prosecution for leading organized crime.

“Because of defense counsel’s failure to object, Linville was improperly tried for 138 total charges and convicted of 137 offenses,” said the Court. “Had counsel properly objected to the joinder, 56 of the charges, including all of the burglary charges, would have been severed, the trial would not have included convictions for those 56 improperly joined charges, and the outcome of this trial would have been different.”

The Court extrapolated the prejudicial consequences of the joinder. It explained that each of the four firearm enhancements – which resulted in a mandatory minimum sentence of 240 months – were associated with the four counts of first degree burglary. The firearm enhancements would not have been considered but for defense counsel’s deficient performance.

“The improper joinder had additional prejudicial consequences,” stated the Court. For example, by improperly joining four charges of unlawful possession of a firearm, the State was permitted to introduce evidence of Linville’s prior felony for possession of a controlled substance without a prescription. This prior conviction evidence was highly prejudicial given that the State’s theory was that Linville’s crime ring was motivated by drugs. Also, the State relied heavily on the burglaries as evidence of Linville’s guilt for leading organized crime. A jury separately considering the burglary charges would not necessarily have heard testimony of Linville’s accomplices accusing him of orchestrating a broad scheme.

Consequently, the Court held that Linville’s defense counsel rendered ineffective assistance of counsel by failing to object to the joinder of offenses in violation of RCW 9A.82.085. The Court therefore reversed Linville’s convictions and remanded them back to the trial court for separate trials.

My opinion? Good decision. A defense attorney’s failure to sever “joined” offenses into separate trials can have profoundly devastating effects. Put simply, juries are more biased against the defendant in a joinder trial versus a trial with a single charge. Consequently, they are more likely to convict on a particular charge in a joinder trial with multiple charges than in a trial on the same single charge. It’s imperative that competent defense attorneys sever counts whenever possible.

Life Sentences Increase

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Article by Samantha Michaels of Mother Jones discusses how one out of every nine prisoners in the United States is currently serving a life sentence—a record high—even as the overall prison population has fallen.

That’s according to a depressing new report by the Sentencing Project, an advocacy group that’s been tracking life sentences since 2004. Almost 162,000 people are now serving life behind bars, up from 132,000 about a decade ago and 34,000 in 1984.

To put that in perspective, for every 100,000 people in America, 50 have been locked up for life. That’s roughly the total incarceration rate—including inmates whose sentences are just a few months—in Scandinavian countries like Denmark, Sweden, and Finland.  And it doesn’t even account for the tens of thousands of Americans handed sentences of 50 years or more, which are considered “de facto life sentences,” says Ashley Nellis, a senior research analyst at the Sentencing Project who co-authored the report.

What’s driving the uptick? It’s not a rise in violent crime or murder—both have dropped substantially since the mid-1990s. Nor is it an increase in the number of criminals behind bars: A majority of states saw declining overall prison populations from 2010 to 2015.

According to Michaels, the continuing rise in lifers is a legacy of three-strikes laws and mandatory minimum sentencing.

“It may also be related to the shift away from capital punishment,” she says. She further elaborates that in some states that no longer allow executions, elected officials like governors and prosecutors have championed life-without-parole sentences—which account for the biggest increase in life sentences nationally—as a way to appear tougher on crime.

“Going forward, we will have a system that allows us to put these people away for life, in living conditions none of us would want to experience,” Connecticut Gov. Dannel Malloy, a Democrat, said in 2012 when his state abolished the death penalty. But these lengthy punishments probably aren’t keeping the public safer. “The impulse to engage in crime, including violent crime, is highly correlated with age,” the Sentencing Project notes. “Most criminal offending declines substantially beginning in the mid-20s and has tapered off substantially by one’s late 30s.”

The biggest losers of all this? Minorities. Of all the lifers and de facto lifers in the country, almost half are African American. What’s more, 12,000 of the total are locked up for crimes they committed as kids, though some are eligible for release thanks to recent court decisions.

In 2010, the Supreme Court ruled that life-without-parole sentences are unconstitutional for juveniles who didn’t commit homicide. In 2012, the justices went further, saying that mandatory life-without-parole sentences for kids, including those who committed homicide, are also unconstitutional. Nineteen states and DC now ban any kind of life-without-parole sentence for juveniles.)

Finally, according to Michaels, it’s important to remember that many of the prisoners serving these long sentences never actually hurt anyone: Two-thirds of lifers or de facto lifers in the federal system committed nonviolent crimes—and one-third of them are serving time for drug crimes.

With Attorney General Jeff Sessions at the helm of the Justice Department alongside his team of tough-on-crime advisers, there’s a good chance that won’t be changing anytime soon.

My opinion? I couldn’t agree more.

Sessions Seeks Harsher Prosecutions & Stricter Sentences

Image result for sessions war on drugs

Today, CNN Reporter Laura Jarrett broke the story that Attorney General Jeff Sessions has a new directive for federal prosecutors across the country: charge suspects with the most serious offense you can prove.

Friday’s announcement follows a line of several other significant departures from Obama-era domestic policies at the Justice Department, but this decision crystalized Sessions’ position in the criminal justice realm.
In a brief one-and-a-half-page memo, Sessions outlined his new instructions for charging decisions in federal cases, saying that his new first principle is “that prosecutors should charge and pursue the most serious, readily provable offense.”
“The most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences,” Sessions later adds.
While the federal sentencing guidelines are advisory — and take into account everything from a defendant’s criminal history to cooperation with authorities — some judges have felt handcuffed by mandatory minimums, which provide a statutory sentencing minimum of months below which the judge cannot depart.
The move was harshly criticized by the New York University School of Law Brennan Center for Justice, a nonpartisan law and policy institute focused on democracy and justice.
“The Trump administration is returning to archaic and deeply-flawed policies,” Inimai Chettiar, the center’s justice program director, said Friday. “Sessions is leaving little to no room for prosecutors to use their judgment and determine what criminal charges best fit the crime.”
“That approach is what led to this mess of mass incarceration,” she added. “It exploded the prison population, didn’t help public safety, and cost taxpayers billions in enforcement and incarceration costs.”
Sessions also formally withdrew a signature part of Attorney General Eric Holder’s “Smart on Crime” initiative, which sought to target the most serious crimes and reduce the number of defendants charged with non-violent drug offenses that would otherwise trigger mandatory minimum sentences.
“We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers,” Holder wrote in a 2013 memo. “In some cases, mandatory minimum and recidivist enhancements statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution.”
As a result, during the Obama era, federal prosecutors were instructed not to charge someone for a drug crime that would trigger a mandatory minimum sentence if certain specific factors were met: (a) the relevant conduct didn’t involve death, violence, a threat of violence or possession of a weapon; (b) the defendant wasn’t an organizer, leader or manager of others within a criminal organization; (c) there were no ties to large-scale drug trafficking operations; and (d) the defendant didn’t have a “significant” criminal history (i.e., prior convictions).
All of those charging factors are now gone under Sessions’ reign and not surprising, as he has previously telegraphed his desire to prosecute more federal cases generally.
My opinion? We’re bringing back the War on Drugs. As it stands, the federal government typically prosecutes only the most serious offenses, and does so with what can seem to be a crushing investigation and avalanche of evidence. Their resources are vast. Mounting a defense can feel daunting.
Here, the effects of Session’s decision will most immediately be felt in the context of drug crimes. Federal mandatory minimums can be harsh because the sentences are dictated based on drug type and quantity.
Said differently, Sessions decision could bring back the War on Drugs. His actions are already embracing it’s worst features: confidential informants, harsh plea bargains and long sentences.


Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

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