Fear of Flooding - UPDATE

Are you a due process or a finality kind of guy?

The question came from a judge.  We'd just met.  He knew nothing about me except that I was licensed to practice law.  He was cutting, as they say (and, by the way, just who are "they" that do all the saying?), to the chase.

In a Times Op-Ed, Alec Karakatsanis, tells the story of Ezell Gilbert.

In March 1997, he was sentenced to 24 years and four months in federal prison for possession with the intent to distribute more than 50 grams of crack cocaine. Because of mandatory sentencing laws, Mr. Gilbert was automatically sentenced to a quarter-century in prison, though even the judge who sentenced him admitted that this was too harsh.

But the law's the law, and mandatory minimums are just Congress's way of saying "Fuck you" to poor people who don't make big campaign contributions. (And, to save you the trouble of actually thinking about it, yes, that's all poor people.  #poor people's lives matter.*)  So a quarter century it was. 

Or maybe not.

At his sentencing, Mr. Gilbert noted a legal error that improperly increased his sentence by approximately a decade based on a misclassification of one of his prior offenses. In 1999, without a lawyer, he filed a petition seeking his release. 

It was an argument about how to apply (and when) a provision of the Armed Career Criminal Act, a matter of passing interest to almost nobody who isn't a lawyer in federal court or someone who gets serious time added to a sentence because of it.  Anyhow, Gilbert filed his petition.  Which, this being the land of the free and all, was promptly denied by the court of appeals because he was obviously wrong and mandatory minimums and Fuck you.

Which is where things stood for a decade or so until 2008 when SCOTUS, by an atypically split 6-3 vote, decided Begay v. United States.  Which said (although in Begay's case and not his) that, by god, Gilbert was right.  So back to court he went, this time with a lawyer.

Mr. Obama’s Justice Department, however, convinced a Florida federal judge that even if Mr. Gilbert’s sentence was illegal, he had to remain in prison because prisoners should not be able to petition more than once for release.

Which is obviously right.  Because if you let one poor guy out just because he was illegally sentenced to an extra decade in prison, then you probably have to do it for the next poor guy who's doing an extra decade in prison because the courts got the law wrong.  And then before you know it you'll have people just flooding the streets instead of filling prison cells that they aren't supposed to be in.

Which would lead to factually innocent people saying they shouldn't be in prison, either.  And if the feds start to let out innocent people, then the states might feel obligated to do the same.  Just think of the horror. 

Thousands of people who shouldn't have been in prison in the first place out on the streets. 

Lock up the women and children!

Anyhow, Gilbert appealed.  And a three-judge panel agreed.

The judges rejected the administration’s argument as a departure from basic fairness and explained that it simply could not be the law in America that a person had to serve a prison sentence that everyone admitted was illegal. Mr. Gilbert returned home and stayed out of trouble.

Which is lovely.  And of course proved to be wrong.  That is, indeed, the law in America.

In May 2011, the same court, led by a different group of judges, sided with the original judge, saying that the “finality” of sentences was too important a principle to allow prisoners to be released on a second rather than first petition, even if the prison sentence was illegal. A contrary rule would force the courts to hear the complaints of too many other prisoners. Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.

It's worth repeating that last sentence.

Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.

The vote was 8-3.  

In 2013, Obama granted clemency to Gilbert, let him out of prison again.  Which was, of course, what should have happened years ago.  And of the others?  Those the administration argues and the courts agree should stay in prison even though they're there illegally?  Because they were improperly sentenced or because they're legally or factually innocent or just because Fuck you?

Hell, Obama just commuted 48 sentences.  Noblesse oblige.  What more do you want? Expect him to just start letting the wrongly incarcerated and convicted out willy-nilly? Grow up.  This is America.

Among the three dissenting from the decision to send Ezell Gilbert back to prison was Judge James Hill. He wrote

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States. 

Indeed.  Law of Rule.

I told that judge I was a due process kind of guy.  

* * * 

 Here's Judge Hill's dissent in its entirety at the bottom of this (omitting the footnotes).

HILL, Circuit Judge, dissenting, in which BARKETT, Circuit Judge, joins:
Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.
Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.
Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious – he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.
This “Catch-22" approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.
Furthermore, to “seal the deal” on finality, we hold today that even the savings clause of § 2255 – which appears to permit resort to the Great Writ itself in circumstances such as these – provides no avenue to relief for Gilbert because confinement pursuant to sentencing errors such as his does not offend the Constitution. Rather than acknowledging that Gilbert’s sentence is fundamentally defective and a miscarriage of justice, we hold that the error resulting in an additional eight and one-half years of prison time for Gilbert is a mere technicality, a misapplication of the Guidelines that has no remedy because it is not all that important. Gilbert’s erroneous enhancement as a career offender – demanded by the government at the time – is argued to be mere harmless error now that he has been proven right.
The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.
I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.
A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.
Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.
One last thought. The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also.
I respectfully dissent from the majority’s holding. With the addition of these thoughts of my own, I join in both Judge Barkett’s and Judge Martin’s dissents.

UPDATE:  Be sure to read Scott Greenfield's take on this.
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*Yes, the victims are not all poor.  I know that.

A Procedural Quagmire

Over at Fault Lines (and if you haven't been going to Fault Lines, you should start), Christian Farias has a post on the constitutional difficulty of getting the Supreme Court to declare the death penalty unconstitutional.  The problem is a constitutional conflict.  

Chief Justice Warren's plurality opinion in Trop v. Dulles holds that the 8th Amendment's prohibition of "cruel and unusual punishments" 

must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

Those evolving standards are where constitutional abolitionists try to make their stand.  But the 5th Amendment specifically authorizes capital prosecutions and executions.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

And as as Antonin Scalia, who hates Trop the way Ted Cruz hates Obamacare, pointed out in his concurring opinion (responding to Breyer's call for an outright 8th Amendment challenge) in Glossip v. Gross, 

It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.

As Farias says, 

It's a devastating textualist argument.

I'm not a textualist (though I think the text matters far more than Breyer does, since he believes more in what he imagines the Constitution wants to achieve than in what it actually provides), but I've long understood that conflict to be seriously problematic.  

Of course, the problem can be resolved easily enough by the Rule of 5.  The Constitution, after all, means only and precisely what 5 members of the Supreme Court say it does.  If there are 5 votes to say that the death penalty violates the 8th and is therefore unconstitutional, Scalia's fulminations won't matter.  And that's clearly been the hope for nearly 40 years.

But there's another way, the way Harry Blackmun was pointing in Callins v. Collins  when he concluded that the death penalty was unconstitutional.  

The 8th Amendment requires that the death penalty be imposed fairly, consistently, and reliably.  The 5th Amendment says that as long as there's sufficient process, executions are constitutional. Blackmun's epiphany, after his years of "tinkering with the machinery of death" is that the requirements cannot be reconciled.  What we've come to learn, what experience has taught, is that the framers expectation cannot be satisfied.  No amount of process is sufficient to achieve what the 8th Amendment requires.  

Here's Blackmun (footnotes omitted):

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

It's not the "evolving standards" of the 8th Amendment that the death penalty fails. It's the conditional authorization of the 5th Amendment.

At least, that's one argument.

An Adversary System without Adversaries

Some background:
Ohio law says that the Ohio Supreme Court must review every death sentence on direct appeal.  A rule of the Ohio Supreme Court, a rule crafted by the Ohio Supreme Court, says that no brief can be filed after the date it is due.  Another rule prohibits asking permission to file a brief late.  Yet another rule says that if a party doesn't file a brief, it cannot participate in oral argument.  There is no rule prohibiting asking to waive that rule.  (Confused yet?  Welcome to the Buckeye State's Supreme Court where they refuse to file documents unless that don't comport with the rules and where they don't give you additional time to fix screw ups.)

A true story:
The prosecutor in one of my death penalty cases blew the deadline.  A clerk at the court, who wasn't paying sufficient attention, filed his brief anyway.  A week or so later, the court, on its own, struck the brief from the record.  When they scheduled oral argument, the prosecutor wasn't invited.  After all, he hadn't filed a brief.  He asked to participate anyway.  They said no.

And so, I had a death penalty case in the Ohio Supreme Court where the state did not present a written or oral argument.  I was unopposed.  I had the brief.  I'd made the arguments in writing.  I had 30 minutes to address the court, answer their questions, be thoughtful and eloquent and persuasive.

AND LOSE THE FUCKING CASE.*

Another true story:
M.P. was stopped by the highway patrol for a traffic offense.  The cops charged him with that, but also with a couple of misdemeanor drug offenses.  After he pled guilty to the traffic offense, the prosecutor dismissed the drug offenses.  So P. asked to have the drug charges expunged. After all, they weren't important enough to pursue.

The trial court said 

Sure. Expunge 'em.

The prosecutor appealed.  

The charges may not have been important enough to pursue, but by god P. needs to have them on his permanent record so that they can screw up his life.  

The court of appeals told the prosecutor to pound sand.  It agreed with the trial judge.  

Expunge.! 

Life is good.  P. paid his lawyer and left Ohio.  And the prosecutor said 

This cannot be.  We have to fuck with this guy and make sure he can't get on with life.

So he asked the Ohio Supreme Court to hear an appeal.

P?  He was living in another state.  Didn't know the case had been appealed.  Had no real interest in it, anyhow.  And his lawyer?  He'd been paid.  he was done.  The supremes agreed to hear the state's appeal.  Only the state briefed it.  Only the state argued.

ONLY THE STATE WON.

Yet another true story:
After the Supreme Court (US this time) decided Miranda v. Arizona (You have the right to remain silent, etc.), they enacted a statute attempting to overrule it.  For a couple of decades, nobody paid any attention to that statute.  Then a guy named Dickerson robbed a bank.  He confessed to the FBI, but they didn't give him Miranda warnings.  The court threw out his confession.  The court of appeals reversed citing that statute.  Dickerson asked the berobed ones in Washington to hear the case.  They agreed, but they had a problem.  The government wasn't willing to defend the statute.  Dickerson said the statute was worthless.  The government didn't disagree.  

And so the Supremes appointed Paul Cassell (who never met a defendant he didn't hate or a victim he didn't think should be able to be a second prosecutor - and get paid by the defendant for her trouble) to argue that the statute was constitutional and did, in fact, overrule Miranda.  

Because no party to the underlying litigation argued in favor of § 3501's constitutionality in this Court, we invited Professor Paul Cassell to assist our deliberations by arguing in support of the judgment below.

As it happens, Dickerson won (Dickerson v. United States).  3501 returned to the dustbin where it had been languishing.

* * * * *

The distinctions here matter.  

The U.S. Supreme Court, for all its faults, knows that because it resolves only real cases, it needs to hear arguments from both sides.  If the party on one side isn't interested in participating, it will appoint someone to argue that position.  

The Ohio Supreme Court, like the one in Washington, is supposed to hear and resolve only real cases. Unlike the one in Washington, the Ohio Supreme Court doesn't think it's necessary to hear from both sides.  One side doesn't show up?  Lack of interest? Lack of money?  Lack of a good calendar?  Hey, they don't care.  A real case or controversy where there's only one party?  Welcome to Ohio.

* * * * *

And so we come to the case of Jalal T. Sleibi.  

He's a lawyer and he screwed up.  The Board of Commissioners on Grievances and Discipline recommended that his license to practice law be yanked for two years but that he should be on probation for the second of those years.  Sleibi thought that was a reasonable sanctio. The local bar association thought it wasn't enough.  Take his license away indefinitely, they said.

Before they made their argument to the Ohio Supreme Court, they took by agreement with Sleibi's lawyers, the one single, allowed extension of time they could get, an additional 20 days to file. Sleibi's lawyer  miscounted.  He thought he had 20 days to file a response.  Proud of himself, and in violation of most legal practice, he filed early, sent his response by UPS overnight on the 16th day, so that it arrived before 10 a.m. on the 17th.  Three days early.

Ooops.  He actually had 15 days to respond, not 20.  He was late by something like 36 hours.  His response, naturally, was rejected.  Can't file it when it comes in late, after all.

But there's no rule that says he can't ask to participate in oral argument.  Which he did.

Typically, parties failing to file merit briefs are deemed to waive oral argurnent. See S.Ct.Prac.R. 13.04(B)(2). However, there is no rule saying that this Honorable Court may not waive the foregoing rule as there is with seeking extensions of time after the expiration of the prescribed time. In consideration of the general interests of fairness and equity to Respondent Jalal Sleibi as it relates to his license to practice law and ability to support his family, and who personally is not at fault for the untimely submission of his Answer and Brief to Relator's Objections, Respondent's counsel respectfully requests that this Honorable Court extend to Mr. Sleibi the reasonable courtesy, exception and accommodation to permit his counsel to appear at the oral argument (yet to be scheduled) in the instant matter to argue his position in advocating the acceptance of the Board's Amended Findings and to reject the extreme recommended sanction of Relator.

This motion is not made for purposes of delay, harassment or to burden Relator or this Honorable Court, and the granting of the instant motion will not cause any prejudice to any party. This position rests not only on the facts as set forth herein, but also on the proposition that given the nature of these proceedings with exclusive jurisdiction before this Honorable Court, Mr. Sleibi deserves to be afforded the opportunity to be heard and to have this matter decided upon the merits. Again, and while the substance of these proceedings, from an equitable perspective, would all-but-dictate some manner of an opportunity to be heard, counsel, for this same reason, requests that this Honorable Court allow an exception to S.Ct.Prac. R. 13.04(B)(2) and based upon principles of fairness and equity, permit counsel to argue Mr. Sleibi's position relative to those posited in Relator's Brief.

Which seems, when you think about it, pretty fair.  Just give us a chance to be heard.  Which is, after all, about the minimum of due process.

Unless, of course, you happen to be in the Ohio Supreme Court.

  Sleibi Order

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*In a later proceeding, we got the guy's death sentence reversed.  His sentence has been reformed. He'll come before the parole board in October 2038, just before he turns 82.  Of course, there's no reason to think he'll get parole, should he happen to live that long.  But it's a theoretical possibility.