Do you know the difference between a prisoner's appeal or post-conviction
petition and the lottery? The lottery is fairly decided, and the rules
don't change.
The long awaited en banc decision in U.S. v. Buckland in the
Ninth Circuit was finally issued on January 18, 2002. It was a travesty.
The case had drawn huge interest from drug war prisoners when it was first
issued in 2001 and held that under Apprendi v. New Jersey, 530 U.S.
466, 490 (1999), the sentencing provisions of 21 U.S.C. ß 841(b)(1)(A)
and (b)(1)(B) were unconstitutional. See U.S. v. Buckland, 259 F.3d
1157 (9th Cir.), en banc granted, 265 F.3d 1085 (9th Cir. 2001).
Just about every drug war prisoner, and most every other prisoner too,
knows about the impact of Apprendi on sentencing. In Apprendi,
the Supreme Court held that "other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Since 1970 when current drug laws were
first enacted, there have been tens of thousands of people given lengthy
prison sentences on "facts that increased the penalty for the
crime," facts found only by a judge on the declaration of the
prosecutor who relied on an uncorroborated claim by an informant or cop.
Based on Apprendi, many prisoners suffering a long sentence
imposed by a judge, on facts not determined by a jury, probably thought
they could get the excess time taken off their sentence. After all, the
ruling is fairly easy to comprehend. As readers probably know by now, very
few defendants have benefited from the Apprendi decision.
Prosecutors and 'judges who think like prosecutors' have changed the
ruling from "the jury must find the facts for guilt and punishment by
proof beyond a reasonable doubt" to "the jury could have found
the facts for guilt and punishment, and so the error was harmless."
Prosecutors and their judges have bucked the Supreme Court on Apprendi by
concocting legal fictions to deny direct appeals and Sec. 2255 motions.
This column could have been written again about how to determine harmless
from harmful error, retroactive decision on appeal and Sec. 2255, what
works on 2255s, or the narrow path of the savings clause to file a
petition for habeas corpus under 28 U.S.C. Sec. 2241. But no matter how
good your appeal, Sec. 2255, or savings clause Sec. 2241 issue is, or how
strongly precedent (case law) supports your claim, you probably won't win.
Notice that I use the word 'probably' in the same way you 'probably'
won't win the lottery either, but you 'could' win it. Judicial decisions
are in theory based on precedent of prior decisions. Judges look at the
prisoner's appeal or petition and apply the law as they interpret it under
the influence of all their years as prosecutors or staunch pro-law
enforcement members of the political party that sponsored their judicial
anointing. Plain English to most of us is not the same language to many
judges.
When a prisoner reads a statute or case and it seems to apply squarely
to her issue, the prosecutor will surely find the prisoner read the law
wrong, defaulted by not raising it before, or cannot raise it now since it
was raised before. Damned if you do, and damned if you don't.
Ninety-nine out of a hundred times the judge will rule on your petition
or appeal based only on what the prosecutor misrepresented. Prosecutors
have been known to fabricate a ruling to conform to what they want.
Sometimes the judge's final order will look like the prosecutor's
opposition brief. Other times, if the defendant's argument beats the
prosecutor's, or if the prosecutor's argument was completely contrary to
precedent and too embarrassing for the judge to adopt, the judge will pick
up the ball and write a denial with his own pro-government reasons. Quite
often the judge uses the same precedent the defendant used, but with the
opposite spin and interpretation.
Within the last decade of zealous "lock 'em up" drug law
enforcement, there stand a few courageous judges who issued a sound
opinion for a defendant, but they were quickly brought back in line by a
higher or en banc court.
In 1994, a panel of judges in U.S. v. $405,089.23 U.S. Currency,
33 F.3d 1210, 1222 (9th Cir. 1994) correctly applied Supreme Court
precedent to hold that a defendant's double jeopardy right was violated
when the government forfeited property and criminally prosecuted a drug
case defendant in two separate proceedings instead of one. The justice
department was outraged because it could not punish defendants and rob
them of their assets at will in piecemeal tribunals.
The nation's top prosecutors began applying political pressure as three
other circuits agreed with the Ninth, and defendants filed appeals and
Sec. 2255 motions for release based on double jeopardy. Many defendants
won freedom or return of their assets as prosecutors re-grouped. On
petition for certiorari, the prosecutors' brief cried that drug law
enforcement would be crippled by the $405,089.23 ruling if it was
not overruled. The Supreme Court got the message and overruled the
appellate courts, holding that such double punishment in separate
proceedings was not a violation of the Fifth Amendment because forfeiture
was not a 'penalty' as they had previously ruled in all earlier decisions.
See, U.S. v. Ursery, 518 U.S. 267 (1996).
In 1998, a panel of judges in U.S. v. Singleton, 144 F.3d 1343
(10th Cir. 1998) reversed Sonya Singleton's drug conspiracy and money
laundering conviction on the ground that the prosecutor violated the plain
language of 18 U.S.C. Sec. 201(c)(2). Singleton's prosecutor erroneously
offered leniency to a codefendant in exchange for 'truthful' testimony
(read that as testimony that would help the prosecutor). Such a ruling
applied to 99% of drug case convictions since the prosecutors routinely
bribe 'rats' for testimony to win the conviction.
Based on years of personal observation and case study, it's clear to
this writer that prosecutors as a group are afflicted with an obsession to
win at all costs. Statute 18 U.S.C. Sec. 201 (c)(2) states in very clear
language that "whoever directly or indirectly gives, offers, or
promises anything of value to any person - for or because of the testimony
under oath or affirmation given or to be given by such person as a witness
upon a trial before any court - shall be fined under this title or
imprisoned for not more than two years or both." Is there anything
unclear about these words?
The US Justice Department was even more outraged by the Singleton decision
prohibiting the bribing of witnesses to win cases than it was in $405,089.23
prohibiting the multiple punishments of defendants, including theft of all
the assets that prosecutors could grab. Within ten days of the Singleton
ruling, the prosecutors and 'pro-prosecutor judges' of the Tenth Circuit
had the decision withdrawn, a feat they could not do in $405,089.23.
By withdrawing the panel's decision, defendants could not use it as
precedent for release from a conviction based solely on felons who
testified for the government in exchange for their freedom.
It seems prosecutors and their loyal judges uncritically assume that US
citizens are stupid, because the en banc Court reversed the Singleton
panel and held that it was "absurd" to try to apply Sec.
201(c)(2) to prosecutors because they are really the "alter ego of
the sovereign." Just where's the stupidity here?
In 2002, we see that the Justice Department continues to be outraged
that a defendant or two might vacate or reduce a lengthy imposed sentence
that was based on "facts" found only by a judge, and not by
jury. Although few Apprendi decisions granted relief, those that
did usually held the defendant to a maximum of 20 years. That was not
enough prison time for the zealous prosecutors, and so they argued to have
the court 'stack' sentences at the rehearing.
The courts obeyed the prosecutors' wishes. Buckland en banc is a
great example. The en banc court denied Buckland's claim, holding that the
district court could have decided to stack his punishments, and so he was
'lucky' he only got the original 324 months instead of a life sentence.
The Seventh Circuit Court of Appeals has had many cases remanded from the
United States Supreme Court in light of Apprendi.
Basically, the Seventh Circuit has affirmed its early denials and sent
the Supreme Court the signal that they are not going to give relief to Apprendi
errors. The Supreme Court in this term is going to hear three appeals on
the Apprendi issue, one state murder appeal, and two Fourth Circuit
direct appeals. No collateral review cases on Apprendi have been
granted certiorari as this article goes to press in March 2002. The bad
omen is that the prosecutors asked for, and were granted, certiorari for a
defense victory in U.S. v. Cotton, 261 F.3d 397 (4th Cir. 2001).
Given all the political resistance that Supreme Court justices have
felt from prosecutors and pro-prosecutor judges, the High Court might be
inclined to appease the prosecutors by limiting Apprendi's
constitutional authority and reach. Hopefully, the great justices will
muster courage to uphold a broad application of Apprendi and the
constitutional right to have the jury determine the facts for guilt and
punishment 'by proof beyond a reasonable doubt.' We'll see soon enough.
Drug war prisoners filing appeals and post-conviction motions cannot
assume that the prosecution or the court will apply the law fairly or
impartially to them. Almost every defendant who went to trial can cite a
few examples of how the court or prosecutor did something in violation of
the rules or law, yet that error will surely be called 'harmless' on
appeal.
What can we do? Well, like in a lottery, we stay in the game by filing
appeals, motions, and petitions with hope that the courts will listen,
apply the law impartially, and grant relief. But we must do more. Our
families need to continue concrete political action to change the laws,
reduce sentences, reinstate parole, or demand amnesty and repeal of the
prohibition-era drug laws. Drug war prisoners definitely need people 'on
the street' demanding release of the drug war prisoners.
We must not accept the crumbs-from-the-table outlook currently seen in
proposed legislative reforms and sentencing-guideline-tinkering which
offers only token relief to a few. There is clear need established for
drastic, penetrating, and humane changes in the criminal justice system to
reduce the torturous life-long sentences which tens of thousands of drug
war prisoners carry at this moment. I cannot count the numerous fathers
and mothers incarcerated for decades, or life, convicted and sentenced on
hearsay, drug-less conspiracy allegations based primarily on testimony
from self-interested felons being rewarded with freedom.
