WASHINGTON LEGISLATIVE OFFICE October 12, 2012 VIA EMAIL AMERICAN CIVIL LIBERTIES UNION WASHINGTON LEGISLATIVE OFFICE 915 15th STREET, NW, 6 T H FL WASHINGTON, DC 20005 T/202.544.1681 F/202.546.0738 WWW.ACLU.ORG H. Marshall Jarrett Director Executive Office for United States Attorneys Room 2261, RFK Main Justice Building 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001 LAURA W. MURPHY DIRECTOR Re: The Department of Justice's Response to United States v. Simmons NATIONAL OFFICE 125 BROAD STREET, 18 T H FL. NEW YORK, NY 10004-2400 T/212.549.2500 Dear Mr. Jarrett: OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT ANTHONY D. ROMERO EXECUTIVE DIRECTOR ROBERT REMAR TREASURER This letter addresses the Department of Justice's recent decision to assist only some of the many federal inmates whose convictions or sentences are improper under the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). We write to urge the Department to deliver complete rather than partial justice. In a letter to the American Civil Liberties Union (ACLU) dated September 14, 2012, you wrote that the Department has now taken "concrete steps" to facilitate collateral relief for "persons whose convictions or sentences entitle them to relief under Simmons." But your letter does not specify the Department's approach. We have therefore undertaken our own investigation of current practices at the three United States Attorney's Offices in North Carolina, and we have found two serious problems. First, by failing to respond in a timely manner to motions for post-conviction relief, one of those three U.S. Attorney's Offices is still prolonging the incarceration of innocent people. Second, in all three U.S. Attorney's Offices, the Department continues to oppose post-conviction relief for the vast majority of improperly sentenced inmates. If the Department's opposition prevails, inmates will serve out unjust sentences as long as life imprisonment. 1 These problems with the Department's response to Simmons raise fundamental questions about its commitment to ensuring "that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). Accordingly, the ACLU urges the Department to further revise its approach to Simmons. Discussion Simmons held, in effect, that thousands of federal defendants had been wrongly convicted or sentenced. Their incarceration hinges on rulings that they had prior felony convictions in North Carolina, but Simmons confirms that their North Carolina convictions were not felonies. The Department has conceded that this is no mere procedural defect; rather, each inmate is either innocent of his federal crime or instead serving a sentence based on a false premise. For nearly one year, the Department prolonged the incarceration of those inmates. When the inmates filed motions for post-conviction relief, the Department asserted defenses that it easily could have waived. Consequently, in June 2012, USA Today ran a front-page story on innocent people who were languishing in prison due to the Department's position. Then, in August 2012, the ACLU and the ACLU of North Carolina Legal Foundation requested that the Department identify and assist all inmates whose convictions and sentences are implicated by Simmons. Your recent letter states that the Department has now adequately addressed the problem. But the reality in North Carolina proves otherwise. I. Wrongly Convicted Inmates The Department has evidently abandoned its prior decision to assert procedural bars to postconviction relief for innocent inmates. In two of the three federal districts in North Carolina--the Middle District and the Eastern District--the Department is supporting relief for inmates who, in light of Simmons, were improperly convicted of being felons in possession of firearms. This is welcome news. But in the Western District inmates who are eligible for immediate release from prison are still encountering roadblocks. There, federal defenders have filed 17 motions for post-conviction relief on behalf of innocent inmates. As of October 10, prosecutors have filed responses supporting relief only in five of them. In those five cases, prosecutors faced a court hearing or order that forced the response. In 11 other cases, the government has filed no response whatsoever.1 In the final case, the government actually filed a seven-page opposition to relief, suggesting that the Western District's approach to these cases can only be described as deeply dysfunctional.2 The tragedy of this approach is that it prolongs the unjust incarceration of innocent people. Unfortunately, this is not the first time that prosecutorial inaction has hindered justice in the wake of Simmons. Although federal prosecutors could have notified the inmates whose convictions or sentences were implicated by Simmons, they never did so. Consequently, the burden of identifying wrongly incarcerated inmates has fallen entirely on defense attorneys. That 1 2 See, e.g., United States v. Hughes, No. 1:05-cr-273 (W.D.N.C.). United States v. Bennett, Nos. 3:10-cr-84 and 3:12-cv-524 (W.D.N.C.). 2 burden is especially heavy in the Western District, where federal defenders still have not received all of the files they need to identify inmates affected by Simmons. In contrast, the Department appears to be taking a more cooperative approach in Massachusetts, where federal prosecutors are grappling with the revelation that numerous federal and state drug convictions rest on the certification of a state chemist who is accused of grave misconduct. To its credit, the U.S. Attorney's Office for the District of Massachusetts has instructed its prosecutors to identify and notify inmates whose federal convictions rest on certifications from the lab where the chemist worked. In North Carolina, that never happened. Because notifying or assisting wrongfully convicted inmates has apparently not been a priority for federal prosecutors, innocent people prosecuted in the Western District are still imprisoned. II. Wrongly Sentenced Inmates The Department has retreated only slightly from its longstanding opposition to post-conviction sentencing relief in the wake of Simmons. It now appears that the Department will waive procedural defenses for a narrow class of inmates: those who were wrongly sentenced under the Armed Career Criminal Act. But the Department still asserts procedural bars in nearly all other post- Simmons sentencing cases. That stance is intolerable. Most importantly, the Department still asserts procedural bars against inmates who unduly received mandatory-minimum and career-offender sentences. Under federal law, mandatory minimum sentences of 10 years, 20 years, or life can be imposed on federal drug offenders who have prior felony drug convictions. And under the U.S. Sentencing Guidelines, "career offender" sentences--often equaling 20 or 30 years' imprisonment--can be imposed on federal offenders who have certain prior felony convictions.3 Before Simmons, many federal defendants received those enhanced sentences based on the erroneous view that they had prior North Carolina felony convictions. Moreover, many of the career-offender sentences operated like mandatory minimums because they were imposed under the unconstitutional mandatory Guideline scheme that was in effect until United States v. Booker, 543 U.S. 220 (2005). Simmons held that those federal sentences were improper because the defendants' prior North Carolina convictions were not punishable by more than a year of imprisonment. In Simmons itself, the en banc Fourth Circuit ruled that that Mr. Simmons's 10-year mandatory minimum was improper because his prior North Carolina conviction was punishable only by eight months of "community punishment." It was not, therefore, a prior felony conviction. Countless inmates are serving mandatory minimum and career offender sentences just as erroneous as--and sometimes more severe than--the sentence Mr. Simmons received. Yet federal prosecutors in North Carolina are now saying that the Justice Department has instructed them to assert procedural bars to the relief sought by those inmates. 3 See 21 U.S.C. ?? 841, 851; USSG ?? 4B1.1, 4B1.2; id. ch. 5, pt. A (sentencing table). 3 That instruction is surpassingly unfair. For example, we understand that the Department is likely to oppose resentencing for Alphonso Morrison, who is serving an unjust mandatory minimum sentence of life imprisonment. The government secured that sentence in 2001 by arguing that Mr. Morrison had two prior felony drug convictions. In fact, Mr. Morrison had no such convictions. But, constrained by preSimmons law, the district court was required to impose a life sentence despite believing that it was an "atrocious result."4 The court explained: [I]f the taxpayers knew they were going to support this gentleman for his entire life in prison based on the facts of this case, they would be outraged . . . . Now, it also goes without saying that if I had a way to depart or otherwise adjust the sentence, I would do it in the interest of applying the sentencing factors of rehabilitation, punishment, deterrence, and incapacitation fairly.5 Rather than seize the opportunity to correct this injustice, the Department now seems poised to exacerbate it. If that view prevails, Mr. Morrison will die in prison. Your letters do not acknowledge this harsh approach, let alone defend it. Instead, you assert a willingness to "accelerate relief" for inmates sentenced "without legislative authorization." That stated position is contrary to the Department's actual practice of opposing relief for inmates who improperly received mandatory-minimum and career-offender sentences. To be sure, many of those inmates received sentences falling at or below the statutory maximum sentences for their federal offenses. But they were sentenced "without legislative authorization" because Congress did not authorize (either directly or through the Sentencing Commission) the mandatoryminimum or career-offender sentences they received. The Department's position is also difficult to reconcile with the fact that federal prisons are operating at 39 percent over capacity.6 The Department has acknowledged that "[t]his level of crowding puts correctional officers and inmates alike at greater risk of harm and makes recidivism reduction far more difficult," and that the cost of this level of incarceration is unsustainable.7 One obvious remedy would be to support relief for unjustly sentenced inmates. Conclusion Facts on the ground in North Carolina confirm our view that the Department's response to Simmons has been, and continues to be, inadequate. The Department should therefore take immediate steps to remedy its present response to Simmons: 4 Sentencing Hearing Tr. at 17, United States v. Morrison, No. 5:99-cr-70 (W.D.N.C. May 7, 2001). Id. at 15-16. 6 UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE, BUREAU OF PRISONS GROWING INMATE CROWDING NEGATIVELY AFFECTS INMATES, STAFF, AND INFRASTRUCTURE (Sept. 2012). 7 Letter from Lanny A. Breuer, Assistant Attorney General, and Jonathan J. Wroblewski, Director, Office of Policy and Legislation, to The Honorable Patti B. Saris, Chair, U.S. Sentencing Commission (July 23, 2012). 5 4 1. The Department should make the rele T m ease of innoc cent inmates a priority. I the Weste s In ern District of No Carolina prosecutor should res D orth a, rs spond to all n now-pendin postng co onviction rel motions within 15 days of this le lief d etter. The De epartment sh hould respon to nd al subsequen motions within 20 day after they are filed. If p ll nt w ys prosecutors need extra re esources to meet those deadlines, the the Depar m d en rtment shoul provide th ld hem. 2. The Department should waive all ava T w ailable defen nses to post-c conviction re elief sought by in nmates whos sentences are implicat by Simm se ted mons. These w waivers are e especially ur rgent in cases invol n lving manda atory-minimu or career um r-offender se entences. It is unfo ortunate that, more than a year after Simmons, the is still so much justic left to be , S ere o ce done. Bu we are hop ut peful that the Departmen will take c e nt corrective ac ction now. Thank yo for your attention to this matter. We will follo up to discuss the pos ou a t W ow ssibility of an inn person meeting on th m hese issues. fully Respectfu submitted, Michael Macleod-Ba all Acting Director D Washing gton Legislative Office Christopher A. Brook r Legal Direc ctor ACLU of N North Carolin na Jesselyn McCurdy Senior Le egislative Co ounsel Washing gton Legislative Office Matthew R. Segal . Legal Direc ctor ACLU Foun ndation of M Massachusett ts Former Ass sistant Feder Defender and Counse to ral el the three No Carolina Federal Pu orth a ublic and Community Defender O y Offices as Am in Simm mici mons Ezekiel Edwards E Director l m Criminal Law Reform Project 5 cc: James M. Cole, Deputy Attorney General Lanny A. Breuer, Assistant Attorney General, Criminal Division Jonathan J. Wroblewski, Policy and Legislation Director, Criminal Division Michael R. Dreeben, Deputy Solicitor General Anne Tompkins, U.S. Attorney for Western District of North Carolina Ripley Rand, U.S. Attorney for Middle District of North Carolina Thomas Walker, U.S. Attorney for Eastern District of North Carolina 6