A Case in Statutory Interpretation: The Supreme Court Interprets the Federal Sex Offender Registration and Notification Act

In July of 2006, the Federal Sex Offender Registration and Notification Act (Act) was signed into law.  This Act was a result of attempts to make a previous “patchwork of pre-Act federal and 50 state registration systems” more uniform and effective.  The Act makes it a crime for a person who is required to register under the Act as a sex offender to knowingly “fail[] to register or update [his or her] registration.”  However, the Act also specifies that “the Attorney General shall have the authority to specify the applicability of the requirements” to pre-Act sex offenders.  In February 2007, the Attorney General made the Act’s registration requirements applicable to pre-Act offenders via an interim rule.

Billy Joe Reynolds, the Petitioner and a pre-Act sex offender, registered as a sex offender in Missouri in 2005 and subsequently moved to Pennsylvania in 2007, but failed to either update his Missouri registration or register in Pennsylvania.  As a result, he was indicted for violating the Act’s registration requirements during the period between September 16 and October 16, 2007.  Reynolds moved to dismiss the indictment on the grounds that the Act was inapplicable to pre-Act offenders during the period in question, and that the Attorney General’s Interim Rule was invalid because “it violated the Constitution’s ‘nondelegation’ doctrine and the Administrative Procedure Act’s notice and comment requirements.”  The district court rejected his arguments on the merits, and on appeal, the Third Circuit found that the Act was applicable to pre-Act offenders as enacted, and thus did not reach Reynolds’ arguments on the merits.  Reynolds appealed to the Supreme Court, and the case was heard on October 3, 2011.  The only question before the Court was whether the Act, as enacted, applied to pre-Act offenders.

Justice Stephen Breyer, writing for a 7-2 majority, held that the Act was not applicable to pre-Act offenders “until the Attorney General so specifies.”  In reaching its conclusion, the Court found that a natural reading of the statute’s textual language lends itself to the Court’s interpretation.  In pertinent part, the Court found that the text of the Act consisted of four statements: (1) that “[a] sex offender shall register, and keep the registration current”; (2) that an offender must initially register before completing either his sentence of imprisonment or, if no imprisonment is involved, within three days of conviction; (3) that the sex offender must update a registration within three business days of any change of “name, residence, employment, or student status”; and (4) that “[t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.”

The majority held that when read naturally, the fourth statement modifies the first statement, “specifically deal[ing] with a subset (pre-Act offenders) of a broad general class (all sex offenders) to which the [first statement] applies.”  Furthermore, the Court held that because the fourth statement confers upon the Attorney General the authority to specify the applicability of the act rather than is non-applicability, it consequently follows the Act confers authority to apply the Act rather than to make exceptions.  Finally, the Court held that this reading comports with what Congress may have thought were practical problems that would arise when the Act attempted to apply the new registration requirements to pre-Act offenders.  Because the Court held that the Act as enacted did not apply to pre-Act offenders, it remanded the case in order to address Reynolds’ arguments regarding the Attorney General’s interim rule and whether it violated the Constitution’s ‘nondelegation’ doctrine and the Administrative Procedure Act’s notice and comment requirements.  If, on remand, the district court finds the Attorney General’s Interim Rule invalid, Reynolds cannot be charged under the statute.

Although this holding may seem like any other plain vanilla case of statutory interpretation, its implications for pre-Act offenders could be great.  Those similarly situated to Reynolds could avoid being brought under the ambit of the statute, especially if the Interim Rule is determined to be invalid on remand.  At first blush I tended to disagree with the Court’s interpretation, mainly because it helps an offender who, as it appears, knowingly and willfully failed to update his registration or re-register in his new home state.  However, the role of a judge is not to tailor his analysis to achieve the result he or she seeks; rather it is to use established rules of statutory construction to achieve an impartial interpretation.  It appears the Court was concerned with conflicting language in a statute, as in the instant case, providing insufficient notice to those who may be attempting to follow the law as best they can.  Furthermore, it remains to be seen whether this may limit the ways Congress chooses to delegate authority to the executive and the language used to achieve that result.

Anoush Garakani

Blogger, Criminal Law Brief


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Back to Basics: Police Officers Do Not Have to Mirandize Inmates in Jailhouse Interviews, Says SCOTUS

On Tuesday, February 21, 2012, the Supreme Court ruled in Homes v. Fields that police officers do not have to read the Miranda rights to inmates already incarcerated during jailhouse interviews for crimes unrelated to their incarceration.  Incidentally, the decision comes after the Court declined to establish a bright-line rule “for determining the applicability of Miranda in prisons,” the ruling it gave in Maryland v. Shatzer (2010).

In the 6-3 decision in Fields, it overruled the Sixth District Court of Appeals that had thrown out the child sex assault conviction of Randall Lee Fields due interrogating officers’  failure to read Fields his rights prior to interviewing him in a secluded interrogation room.  The Court stated that imprisonment per se does not create Miranda custody; that is, in determining whether a person is in custody under the Miranda case law, it is necessary to gauge whether in light of “objective circumstances of the interrogation” a “reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.”  (Such factors may include: the location of the questioning, the duration, the statements made during the interview, the presence of physical restraints, and the release of the interviewee at the end of the questioning.)

Here, Fields was serving a forty-five-day sentence in prison for disorderly conduct charges when he was removed from his cell and taken to a conference room to be questioned by sheriff’s deputies.  The deputies then questioned Fields for five hours regarding allegations of sexual assault on a minor.  Although Fields was told that he was free to leave at any time, Fields did not request to return to his cell and eventually confessed.  He was charged and convicted of criminal sexual assault.

Fields was sentenced to ten to fifteen years in prison but appealed on the basis of inadmissibility of his confessions, arguing that he was not properly Mirandized on the sexual assault charges.  Both the trial court and the Michigan Court of Appeals rejected Fields’ motion to suppress his confession.  The Supreme Court relied on two different approaches when ruling in Fields: (1) the Appeals Court’s erroneous granting of the writ of habeas corpus and (2) the application of a three-pronged test to determine whether the interrogation falls under Mirandacustody.

The Court noted that writ of habeas corpus is proper in cases where the decision was contrary to clear and lawful holding of the Supreme Court.  As the Court went to great lengths to avoid establishing any bright-line rules on whether the questioning of a prison inmate is custodial, the Appeals Court relied on improperly interpreted case law in granting review as well as overturning the lower decision.  Further, the Supreme Court compared the environment and experience of a prisoner to that of a person not incarcerated when noting three distinguishing differences that would not give need to Mirandize an inmate.  First, questioning an inmate already serving a sentence is not similar to the shock of arrest experienced by a free person; second, an inmate is unlikely to be lured into speaking to the police by the idea of a release; and, third, the chance for a lightened sentence is unlikely for an inmate as he is already incarcerated.

Justice Alito, writing for the majority, emphasized that the facts of the case do not give rise to the presumption of Miranda custody.  While the duration of the interrogation may be viewed as excessive (Fields testified that it went on into the early morning, past his usual bedtime), Fields was told before the beginning of the interview and at various times during that he was free to leave at any time; in fact, at a certain point the deputy told him that if he did not wish to cooperate, he could go back to his cell.  Even though the deputies were armed, Fields was not physically restrained and the officers offered him food and water.  Justice Alito notes that since Fields was already in prison, the interrogation was not depriving him of any additional freedom; if he chose to leave the room, he would return to the same confines as he experienced prior – “under no circumstances could he have reasonably expected to be able to roam free.”

Justices Breyer and Sotomayor joined Justice Ginsburg in dissententing with the majority’s determination that Fields was not in custody under Miranda.  Justice Ginsburg emphasized that Mirandawarning are required “in all settings in which a person’s freedom of action is curtailed in any significant way.”  Fields, while in custody for the purposes of serving his sentence, was not in custody under Miranda.  The “police-dominated atmosphere” that Fields was questioned in would be the main issue as opposed to the purposes of his incarceration.

The Fields decision, while not bright-line and all-inclusive, does serve a critical purpose in furthering interpreting the Mirandarequirements.  It is common sense, and is noted by Justice Alito, that Fields was already serving a prison sentence and it cannot be overlooked that incarcerated individuals give up certain rights and privileges while in prison.  While that would not be an excuse to do away with all precautions rights against self-incrimination as guaranteed in the Fifth Amendment, a statement of “you are free to terminate this interrogation and return to your cell,” to an individual already experiencing a restriction in freedom of movement is not evident of constitutional violations.  If nothing else, it is a better definition for police officers to be aware of when conducting jailhouse interviews with inmates accused of other crimes.

Elena Gekker

Blogger, Criminal Law Brief

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Robo-Signing Settlement Leaves Questions of Criminal Liability for Banks

On February 9, 2012 the Obama Administration and forty-nine state prosecutors struck a $25 billion agreement with the nation’s five largest mortgage servicers to address mortgage loan servicing and foreclosure abuses.  The announcement presages potential relief for some Americans whose mortgages are now underwater or are facing foreclosure.  Under the Agreement, forty-nine states (the lone hold-out is Oklahoma) agreed not to pursue civil charges against the banks related these types of issues.  In return for immunity from civil charges from the states, five major banks—Bank of America, JPMorgan Chase, Wells Fargo, Citigroup, and Ally Financial—will reduce loans for nearly one million households.  Issues regarding criminal liability have yet to be dealt with.

Background

The settlement follows ten months of negotiations between the five banks and a coalition of state attorneys general, and the Department of Justice (DOJ), Treasury, and Housing and Urban Development.  The investigation was initiated in October 2010 after the discovery of widespread use of “robo-signing” to speed up the foreclosure process, whereby employees signed, or used fake signatures on, thousands of affidavits they had not read.

Accountability

Hopefully this will bring much needed relief to the thousands of homeowners struggling to pay their mortgages or fend of foreclosure. 

The agreement with the five banks does not prevent the state or federal authorities from taking criminal enforcement actions related to the foreclosure issues addressed by the agreement or other troubling conduct, like the issues surrounding securitization of mortgage backed securities that were at the heart of the financial crisis. 

Paul Krugman, economist and columnist for TheNew York Times, thinks that not enough is being done.  In a recent interview, Krugman argued that "[i]t's hard for me to believe there were no crimes, given the scale of [the financial crisis], given how many corners were being cut, some people must have violated laws.  I think people should be in jail."

Surprisingly, the raw numbers seem to back Krugman.  Federal prosecution of financial fraud fell to a twenty-year low in 2011, according to a report issued in November.

Make no mistake, the companies engaged in robo-signing may face criminal liability for fraud.  In simple terms, employees of these banks signed thousands of affidavits authorizing foreclosures across the country, without actually having reviewed the loan documents, as the law requires.  A person signing an affidavit is swearing under oath that the statements in the document are true.  Knowingly filing a false affidavit is perjury, punishable by fine, a five-year prison sentence, or both.  Criminal liability does not end with the mid-level employees signing these documents.   Higher-level employers could be liable for the felony of suborning perjury, the crime of getting others to perjure. 

Some state attorney generals have taken action.  On February 6, 2012, a Missouri grand jury indicted on forgery charges DocX, one of the largest companies that provided home foreclosure services to lenders.  The employee named in the indictment is Ms. Brown.  Under Missouri law, if convicted she could face up to seven years in prison for each forgery count and DocX could be fined up to $10,000 for each forgery conviction.  The Missouri indictment could also impact homeowners.  According to Missouri’s Attorney General, housing documents found to be tainted by fraudulent signatures would be void. 

Missouri’s indictment comes after Nevada became the first state to take action in November.  The Nevada attorney general indicted two midlevel staffers at a mortgage document company, Lender Processing Services.  The case is still making its way through court. 

It remains to be seen if other states will follow the lead of Arizona and Missouri.  No doubt, the scrutiny on agencies with the lead in investigating the financial industry will continue to increase.

   

Ted Serafini

Blogger, Criminal Law Brief

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Virginia Legislature Favors Pretextual Police Stops Over Fourth Amendment Rights to Weed Out Illegal Immigrants

On Friday, February 10, 2012, Republicans in the Virginia General Assembly won another battle in the war against illegal immigration, pushing House Bill Number 1060 (Bill) through the House Committee for Courts of Justice.  





Next up, the Bill heads to the floor of the House of Delegates for approval.  House Bill Number 1060, introduced by Delegate Richard L. Anderson of Prince William County, reflects the Virginia legislature’s recent efforts to crack down on illegal-immigration.  Section 19.2-83.3 of the new version of the Bill reads:

Whenever any person is lawfully arrested and taken into custody by a law-enforcement officer, the officer shall inquire as to whether the arrestee is legally present in the United States.  If, following the inquiry, the law-enforcement officer has reason to believe that the arrestee may not be legally present in the United States, he shall communicate to the judicial officer the facts and circumstances underlying his belief.  The judicial officer shall take such facts and circumstances into consideration when discharging his duties pursuant to § 19.2-120.

 

While on its face, the Bill may not seem contrary to the present law, an accompanying Fiscal Impact Statement explains, “[t]his [B]ill expands such [citizenship] inquiries by requiring inquiries of everyone arrested, independent of whether they were taken into custody at a jail.”

Local leaders are outspoken in their opposition, and the adverse effects it is sure to have on their communities.  Jaime Areizaga-Soto of the Virginia Hispanic Bar Association believes this is a “blank check” for the institutionalizing of racial profiling of Latinos.  At the subcommittee hearing, he asserted, “[o]ur hard-earned taxes in Virginia should be used to protect our citizens, instead of terrorizing them.”  Alba Jaramillo, co-director of the Virginia Sexual and Domestic Violence Action Alliance, agreed, suggesting that the new policy is likely to create tension, fear, and distrust, of citizens towards law enforcement.

Champions of the Bill are quick to divert the conversation away from activists and towards community safety, claiming that only true criminals will be subject to a citizenship status check.  Delegate Anderson asserted that “[t]his [B]ill deals with what happens after a person has committed an illegal act.  It has nothing whatsoever to do with identifying or profiling people on the street.  It applies equally to everyone no matter how they look, no matter how they talk, no matter how they walk."  The fallacy in Anderson’s argument, however, is that the Bill will not only deal with people who have committed illegal acts.  Guilt does not attach with the handcuffs of an arresting officer.  Anderson is forgetting that the Constitution guarantees a trial by jury before an individual is deemed a criminal.

What Anderson and the Bill’s proponents are also failing to consider is the discriminatory effect the law will have on the application of the Fourth Amendment’s prohibition against unreasonable search and seizures.  This new law, in concert with the Supreme Court rulings that permit pre-textual motives for arrests so long as there are objectively justifiable reasons for the arrest (e.g. Colorado v. Bannister, Whren v. United States, and United States v. Robinson) in effect allow law enforcement officers to arrest individuals that the officer believed to be in the country illegally.  Drafting the Bill as the legislature has to include citizenship inquiries of arrestees who are not even taken to jail promotes the usage of profiling even more.  If law enforcement officers know that they are required to check the status of every arrestee, they will be more inclined to use citizenship inquiries as the pretext for making arrests.

This notion is supported by the Supreme Court’s decision in United States v. Robinson, where the Court found that a traffic violation arrest was not invalid despite the fact that the arrest was a mere pretext for a narcotics search.  This ruling essentially allows law enforcement to subjectively decide which laws apply to each citizen according to their perceived race.  Thus, if an officer sees a white person commit a minor crime, he may choose not to detain the person, but if an officer sees a person who “looks un-American,” he may use that as a pretext to unnecessarily detain and arrest the individual for a citizenship status check.  This type of racial profiling undoubtedly constitutes institutionalized discrimination. Even setting racial profiling arguments aside, making trivial arrests of minorities just to enable a citizenship status check is an enormous waste of police resources.

Perhaps most important is the notion that if an arrest is made, and asserted reason is a pretext for a racially-induced motive, with no strict scrutiny standard to apply to review the arresting officer’s conduct, a potentially innocent person who has not committed any crime at all, may be turned over to the Immigration and Naturalization Service.
 

If our choice is to uphold a system in which law enforcement is not held objectively responsible for their actions, bills like House Bill Number 1060 cannot be passed into law.  The existence of unaccountable law enforcement along with racially motivated statutes will only breed more instances of discrimination and racial profiling in our society and disproportionately sacrifice the constitutional rights of targeted minorities in our communities.

Ali Eacho,

Blogger, Criminal Law Brief

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Bronx Killing Shines a Light on Police Brutality

The Bronx has long been infamous for the widespread enmity between its residents and the New York Police Department (NYPD).  The borough of 1,400,000 mostly Latino and African-American inhabitants has the highest rates of unemployment, poverty, crime, and arrests of any in New York City.  Since February 2, 2012, officer from the Narcotics Division shot and killed eighteen-year-old Rahmarley Graham, relations between Bronx residents and their Police Department have sunk to a new low.

“NYPD : KKK! NYPD : KKK!” protesters chanted as they marched from the home of the late Graham to the 47^th precinct house.  NY-1 reports: 

‘They cornered that little man in his house, perfect place to ask questions, but instead of asking questions, they shoot him down right then and there. And they are New York's finest--what is fine about that?’ said one protester.  ‘They just judge by our looks, or whatever and think that some of is bad kids like that, they don't really want to give us a chance, as well,’ said another.

The New York Timesquoted Graham’s sister, “[t]his is not just about Rahmarley.  This is about all young black men.”

               

According to reports, plainclothes officers of the Bronx Special Narcotics Unit allegedly witnessed Graham conducting a drug deal, and suspected Graham held a handgun on his waistband.  The officers chased Graham into his home and cornered him in his bathroom.  Officer Richard Haste fired once, striking Graham in the chest.  Once entering, the officers discovered that the eighteen-year-old did not have any weapons on him, only a bag of marijuana that he was trying to flush down the toilet.  Graham was rushed to Montefiore Hospital, where he was pronounced dead.

The NYPD stated that Graham had a record of prior arrests.  Constance Malcolm, the victim’s mother, acknowledged this as much, “[e]verybody’s kids get into trouble.  He smoked a little weed, but you know, like all the little, young kids does.  And that’s what he had on him when they were chasing him.”

It appears most likely that the only unlawful activities which Graham was engaging in at the time  were possession and possibly distribution of a controlled substance.  Though in New York, possession of less than twenty-five grams of marijuana is only a violation punishable by a $100 fine.  Consequently, if the alleged “bulge” in Graham’s pocket consisted of less than twenty-five grams of marijuana, and it never left the confines of his pocket, the Narcotics officers may have been unjustified in even stopping and frisking Graham.

Police officers are even more limited in their ability to conduct warrantless entries of a person’s home.  In New York State, officers may enter a private residence without a warrant only if there are “exigent circumstances”; i.e. an emergency necessitating immediate entry.  Here, the possible exigent circumstances of this incident include (1) reasonable suspicion of firearm possession, and (2) reasonable suspicion of destruction of evidence for a crime.

Because firearms can be so dangerous, a police officer’s reasonable suspicion that a person might possess a handgun can constitute an exigent circumstance justifying entry into a person’s home without a warrant.  The legality of the NYPD officers’ entry into Graham’s home would depend on whether the officers actually believed that they saw a weapon or just a bulge in a defendant’s clothing, the vantage point of the officers in making this observation, the defendant’s demeanor and behavior, and whether the defendant was continuously surveilled between the observation of the alleged bulge and his entry into his home.  Though Graham did not possess a weapon at the time of his shooting, the NYPD Narcotics officers’ warrantless entry into Graham’s home may have been lawful so long as their suspicion that Graham possessed a gun in his waistband was reasonable.

However, the Bronx Narcotics officers may not have been justified in entering Graham’s home on the basis of a reasonable suspicion of destruction of evidence of a crime.  To make a warrantless entry of a person’s home based on the reasonable suspicion of the imminent destruction of evidence of a crime those officers would have needed probable cause to arrest the individual.  It appears that Graham was destroying such evidence when he attempted to flush the marijuana down the toilet.  But if he possessed even as much as 24.9 grams, then the police would not have had probable cause to arrest him in the first place.  It may not have been an exigent circumstance sufficient to justify a warrantless entry if Graham was only flushing a citation-worthy amount of contraband.

Of course, the reason why Bronx residents are demonstrating against police brutality is the NYPD’s killing of Graham.  According to the NYPD Patrol Guide,

(a) Police officers shall not use deadly physical force against another person unless they have probable cause to believe they must protect themselves or another person present from imminent death or serious physical injury. . . .

(d) Police officers shall not discharge their firearms to subdue a fleeing felon who presents no threat of imminent death or serious physical injury to themselves or another person present.

It is unequivocally illegal for the police to shoot a person merely based on the suspicion that that person might possess a gun.  In order for a police officer to use lethal force in an instance such as this, that officer must be reasonably certain that a specific individual both has a deadly weapon and that that individual is either presently using or about to use that deadly weapon.  During his fatal shooting, Graham did not even have a weapon in his possession, and nothing appears to suggest that he posed an imminent threat of death or injury to anyone. Even if Graham had a gun, a teenager cowering in their bathroom does not fit the profile of a person about to shoot someone.

One might like to think that the killing of Rahmarley Graham might even elicit some sort of policy change to prevent such a tragedy from occurring again.  Mayor Bloomberg is expected to pay his personal condolences to the Graham family, perhaps make a point of attending more Bronx community meetings.  But the death of Graham is not just a case of “a few bad apples” in the NYPD.  With the mistaken slayings of Amadou Diallo and Sean Bell, the sadistic assaults on Abner Louima and Jatiek Reed all in such recent memory, it appears that the NYPD has a widespread brutality problem.

New York City residents, especially in the Bronx, are clamoring for substantive justice and comprehensive change.  The NYPD must do more to curb the use of excessive force among its members. Granted, the Narcotics officer’s use of lethal force in the Graham case appears to have been in violation of New York state law and NYPD’s stated policy.  The fact that NYPD officers have been violating the rules on the use of force so regularly evinces that the Department needs to thoroughly improve its recruitment, training, and oversight of its personnel.  Police officers who use excessive force have no place amongst the ranks of New York’s Finest.  Moreover, to demonstrate that no man is above the law, the Bronx District Attorney must adequately prosecute the Narcotics officer who illegally shot and killed Rahmarley Graham.

Zachary Mason

Blogger, Criminal Law Brief

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Governor Haley Barbour’s Pardons: Reason to Change the Pardon Power?

During his last day in office as Governor of Mississippi, on January 10, 2012, Haley Barbour pardoned over two hundred convicted criminals, with most receiving a “full, complete, and unconditional” pardon, effectively wiping their records clean.  While it is not unusual for governors and the President to exercise their pardon power as they leave office, Governor Barbour’s decisions sparked controversy.

Mississippi Attorney General, Jim Hood, brought a lawsuit challenging twenty-one of the ex-Governor’s pardons as unconstitutional under Section 124 of the Mississippi constitution because these twenty-one inmates failed to publish notice of the pardons in a newspaper thirty days prior to the pardons.  Governor Barbour countered by arguing that notice does not, as a technical matter, control the Governor’s authority concerning who to pardon, and that his decisions are non-justiciable judgments reserved only for the governor.  Furthermore, Barbour claims that his decision was sensible because over ninety percent of those pardoned were already released on some form of parole, posed no threat to the community, and his action would allow them to obtain gainful employment and move on in their life.  Mississippi Circuit Court Judge Tomie Green ordered an injunction, which blocked the release of the twenty-one inmates, and the Attorney General recently urged the Mississippi Supreme Court to uphold the injunction and render the pardons void.

“It’s unfortunate Governor Barbour didn’t read the constitution,” said Attorney General Hood.  Critics of Barbour’s pardons claim that in addition to failing to comply with the state constitution, many of those pardoned still present a risk to public safety or simply do not deserve a pardon for their crimes.  They point to the case of David Gatlin, who two-weeks prior to his pardoning, was denied parole for the 1993 murder of his estranged wife and attempted murder of her friend.  Equally troubling critics claim, is the situation of Harry Bostick who, while sitting in jail for his fourth driving under the influence offense and waiting to potentially face vehicular homicide charges, was granted a pardon after such a recommendation from the Mississippi Parole Board.  Preliminary investigations into why he was pardoned strongly suggest that neither the Parole Board nor Governor Barbour were aware of Bostick’s fourth arrest and pending criminal charges.  Governor Barbour provided no explanation for the error in communication.

These pardons bring back the memories of President Clinton’s pardon of fugitive financier Marc Rich.  Both caught the public off guard and inspired the public to ask a fundamental question: when evaluating who to pardon, should a governor act like a jury – hear evidence and make credibility determinations – or a judge – deciding pardons based on logical determinations of whether a person poses a danger to society?  Should a governor’s decision be subject to judicial or legislative review?

It seems that Governor Barbour was attempting to be logical in his process with the goal to pardon those who successfully completed a major portion of their sentence, and for practical reasons could use the pardon to be more productive members of society.  Given the overcrowding in American prisons, this approach seems to serve the public interest.  Nevertheless, the Bostick situation reveals that the ability to be purely logical is limited and potentially subject to bureaucratic error.  Moreover, nobody can deny that normative judgments of justice, atonement, and fairness, which are inherently subjective, are at some level incorporated into these decisions.  One can reasonably infer the thirty day notice period was designed to permit victims, families, and communities to express their reservations to pardon petitions.  Thus, a governor is placed in the unenviable role serving as judge and jury.


What is the right answer?  Legally, the Mississippi Supreme Court will tell us soon.  People are mixed in their views as to how it will rule.  Will this result in major reforms to the governor’s pardon power in Mississippi?  The answer to that question is above my pay grade.  Regardless, one should be careful if they are hoping that the pardon power will be stripped away or severely curtailed.  Our criminal justice system is a function of our collective values that seeks to deliver justice for victims and society.  Still, from time to time it can fail, which then requires an opportunity to correct those mistakes.  Once a jury has rendered a verdict, though, sometimes the best and only way to reverse a gross injustice is through a pardon – a collective apology.  But the exercise of a pardon can itself be a gross injustice, as Mississippi is teaching us right now.  The case of Harry Bostick is exhibit #1.  In such cases, we should be prepared to carve out an exception to a governor’s decision and place it under judicial review.  Otherwise, we leave open the possibility that mailroom errors and bureaucratic fumbling becomes a substitute for the orderly administration of justice.

Joe Hernandez
Blogger, Criminal Law Brief

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Marine Accused of Murdering Six Raises Questions Regarding Court’s Treatment of Combat-Induced Mental Illness

Izcoatl Ocampo, an ex-marine, is  currently charged and in custody for the brutal murders of four homeless men, and now faces additional charges in connection with the killings of fifty-three-year-old Raquel Estrada and her thirty-four-year-old son, Juan Herrera.  Orange County, California authorities reported that Estrada was stabbed over thirty times and Juan Herrera over sixty times on October 25, 2011.  Although authorities have provided no information on any evidence against Ocampo, investigators are confident that they have the man responsible for all six murders only because circumstances suggest that the murderer(s) used a similar murder weapon and technique on all six of these victims.  The minimum sentence if convicted is life in prison without parole and Orange County District Attorney, Tony Rackauckas, is considering the death penalty.  However, charging an ex-marine who could be suffering from a mental illness related to his time in combat with the death penalty seems fundamentally unjust.  Further research into post traumatic stress disorder (PTSD) and other combat-related psychological trauma demonstrates that the court system agrees and opts to take contextual evidence that suggests this altered mental state into account when a defendant has a history with the military.

Evidence regarding Ocampo’s culpability, particularly based on his mental state and military time--has not been fully explored.  Further research into the court’s treatment of the relationship between military service and mental state when deciding a case should be necessary.  The U.S. Supreme Court recently recognized the importance of a defendant’s military service, including his or her combat history or any related stress or mental health issues, to an effective presentation of mitigating evidence at sentencing in capital cases.  Porter v. McCollum, 130 U.S. 447 (2009).  Furthermore, in United States v. Brownfield, a federal judge used an Operation Iraqi Freedom Veteran’s potential PTSD as the basis of a downward departure from the federal Sentencing Guidelines—the general sentencing ranges for each crime.  Even legislatures have actively proposed legislation that directs the court systems to address mental illness of Veterans in their courts.  These actions demonstrate that courts are not only accepting, but encouraging evidence of mental illness in cases where the defendant served in the military.

Ocampo served in the marines from July 2006 until July 2010 and was deployed to Iraq for six months in 2008. His father stated that Ocampo was noticeably different after returning from combat.  He said Ocampo expressed disillusionment and demonstrated a physical condition in which his hands shook and he suffered constant headaches.  Although Ocampo initially responded to treatment, he then began drinking heavily and stopped taking medication.  Ocampo’s personal life also changed dramatically after his military service, which is evidence of additional stress that could have affected his mental health.  After Ocampo was discharged in 2010 and returned home, his parents separated.  That same month, one of Ocampo’s friends, a corporal, was killed during combat in Afghanistan.  Ocampo visited his friend's grave twice a week.  His father lost his job and lived under a bridge before finding shelter in the cab of a broken-down big-rig he is helping repair.  

Authorities currently overseeing Ocampo’s imprisonment also acknowledge his psychological issues. Ocampo is now held in isolation in an Orange County jail, wearing a protective gown, and monitored twenty-four hours a day.  Jim Amormino, Orange County Sheriff’s Department representative, Jim Amormino, even stated that Ocampo “[o]bviously…has some psychological problems just by the nature of the crimes, so [the authorities] don't want him to hurt himself.”

Even with this information, Rackauckas stated that Ocampo exhibited no signs of mental illness and he will continue to explore the possibility of a death penalty conviction.  It is comforting to know, however, that if this case ever goes to trial the court will likely consider the multitudes of evidence suggesting that Ocampo suffers from a mental illness when determining his sentence.  Although I certainly do not believe that crime should be excused, violent prison atmospheres will only deepen the psychological trauma from which the ex-soldiers suffer.  Hopefully the state legislatures will continue moving in a direction that both addresses the actions of and provides services for mentally ill individuals who commit crimes.

Amanda Giglio

Blogger, Criminal Law Brief

Does John Hinckley Still Pose a Threat to Society?

In January 2012, Judge Paul Friedman presided over hearings to determine whether to grant John Hinckley extended furloughs from St. Elizabeth’s Psychiatric Hospital, where he has been committed for the past thirty years.  Hinckley’s counsel petitioned Judge Friedman to grant two seventeen-day furloughs, and then six furloughs of twenty-four days to his mother’s home in Williamsburg, Virginia, with convalescence leave upon the completion thereof.  Federal prosecutors challenged the petition, arguing that Hinckley remains a threat to society and his furlough privileges should not be expanded. 

On March 30, 1981, John Hinckley shot President Ronald Reagan and three others at the Washington Hilton in a failed assassination attempt.  The United States indicted Hinckley on thirteen counts, including attempted assassination of the President of the United States, attempted murder, multiple counts of assault, and various weapons charges.  In 1982, John Hinckley was found not guilty by reason of insanity and involuntarily committed to St. Elizabeth’s.

Hinckley has suffered from severe schizophrenia and depression and has long been obsessed with the delusion that he entertained an unrequited romantic communication with the actress Jodie Foster.  Hinckley wrote a letter to her a few hours before leaving for the Hilton, “[b]y sacrificing my freedom and possibly my life, I hope to change your mind about me . . . Jodie, I’m asking you to please look into your heart and at least give me the chance, with this historical deed, to gain your respect and love.”

After a psychiatric evaluation upon admittance to St. Elizabeth’s, Hinckley was classified as a danger to himself, Jodie Foster, and any third party whom he believed to stand in the way between himself and his ultimate aims.  While confined as a patient, Hinckley has remained tormented by schizophrenia and severe bouts of depression.  He attempted to commit suicide at least three times.  A 1987 search of Hinckley’s room found writings that revealed that he remained obsessed with Jodie Foster, exchanged correspondence with the serial killer, Ted Bundy, and attempted to reach out to the murderous cult leader, Charles Manson.

After years of intensive therapy, the psychologists and psychiatrists of St. Elizabeth’s have maintained that Hinckley’s mental illness has been in remission.  In 1999, a federal court allowed Hinckley to enjoy supervised furloughs to the house of his aging mother in Williamsburg, Virginia.  According to the court order, he is required to carry a GPS-equipped cell phone at all times.  He has been allowed to visit restaurants, bookstores, and shopping malls without incident.

In 2009, U.S. District Court Judge Paul Friedman considered a petition from Hinckley’s lawyers to extend his furlough privileges to periods of ten days at a time.  Judge Friedman wrote in his ruling, “[t]he ultimate question is whether a preponderance of the evidence supports the proposition that Mr. Hinckley will not, in the reasonable future, be a danger to himself or others.”  A forensic psychologist testified that “Hinckley has recovered to the point that he poses no imminent risk of danger to himself or others.”  Judge Friedman agreed, and extended Hinckley’s furlough privileges to periods of ten days.

 Whether Judge Friedman grants the defense counsel’s petition for extended furlough and convalescence leave will turn on whether the court determines that Hinckley, after thirty years of psychiatric treatment and counseling at St. Elizabeth’s, has been sufficiently rehabilitated.  

Schizophrenia is a chronic condition which may remit and exacerbate periodically.  Persons who suffer from schizophrenia can often mitigate their symptoms with therapy and anti-psychotic medications. However, if a patient suffering from schizophrenia were to be discharged from an institution, neglect to go to follow-up outpatient visits, and refuse to take his medication as prescribed, one could most likely within days to weeks and most probably within a month remit into flagrant psychosis.  In many cases, those who present with symptoms of paranoia often fear taking their prescribed medication, believing that it is poison.  Many of patients stop taking their medications due to the undesired side-effects.

 For over twelve years, Hinckley’s psychologists and psychiatrists have maintained that his mental illness has remitted to the point that he is no longer an imminent danger to himself or the rest of society.  However, there remains the thorny fact that Hinckley shot the President – the most popular President of the modern era and a Republican icon.  

The United States maintains that there should be no changes to the conditions of Hinckley’s involuntary confinement.  Assistant U.S. Attorney, Sarah Chasson argued before the court at the 2011 hearings that Hinckley has acted deceptively and dishonestly with the St. Elizabeth’s staff during his conditional releases.  According to Chasson, Hinckley told the staff that he was going to see a movie, but Secret Service agents observed Hinckley walk to the ticket counter but slip into the nearby Barnes & Nobles.  According to the government’s account, Hinckley dwelled in the history aisles and stood fixated on books about Reagan and presidential assassinations.

The prosecutors also noted in their court filing, “Hinckley continues to be deceptive regarding his relationships with and interest in women.  In June 2009, Hinckley searched the Internet for photographs of his female dentist.  When he was caught, Hinckley claimed, falsely, that the dentist had invited him to view her personal photographs.”

Clearly, Hinckley remains a troubled man, and one could construe Hinckley’s reported behavior to establish that his pathology remains unvanquished.  Cyber-stalking one’s dentist might be deemed by the court of society to be categorically inappropriate.  In the context of a man who has resorted to violent lengths to win the admiration of women, is it evidence of an unreformed aspiring assassin with the intent to kill again?  A parole officer should be concerned that a potential parolee said that he was going to the movies but went to the Barnes & Nobles instead.  Telling a parole officer one thing but doing another, no matter how trivial, is a violation of the terms of a furlough.  But is it not eminently reasonable for Hinckley to be interested in biographies of the man he tried to kill and scholarly accounts of his walk-on role in American history?

“The risk of danger is decidedly low,” maintains Barry Levine, Hinckley’s counsel.  “We must look at the legal standing between mental illness and danger,” Levine told Judge Friedman that “[t]he evidence shows this man is not dangerous.”

However, U.S. Attorney, Joseph diGenova, who prosecuted the case in 1982, opines, “I think John Hinckley will be a threat the rest of his life.  He is a time bomb.”

Zachary Mason

Blogger, Criminal Law Brief