Short Wins - The Fair Sentencing Act And The New York Times On Brady And Criminal Discovery

more+
less-

There was only one win in the federal circuits last week, but United States v. Blewett was a whopper - the Sixth Circuit held that the Fair Sentencing Act applies retroactively to people sentenced before it took effect. Here's the best language:

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination).

In unrelated news, the New York Times had an excellent editorial (available here subject to the Times kind of annoying content restriction thing - private browsing anyone?) on Brady and criminal discovery.

Here's my favorite part:

It might seem obvious that prosecutors with any sense of fairness would inform a defendant's lawyer of evidence that could be favorable to the defendant's case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

This is exactly right. The problem is that prosecutors aren't required to follow Brady and turn over evidence that matters if someone is going to plead.

And, prosecutors are allowed to give sweet plea deals that expire before they're required to hand over all the evidence. So, unless defense counsel is aggressive about asking for all the evidence - and the prosecutor is inclined to turn it over - folks have to choose whether to risk going to trial or locking in a plea without being able to meaningfully assess their chances of acquittal.

As the Times points out, an early open file discovery rule would fix that.

So, doubtless, DOJ will get right on that.

To the Victory!

1155650_berlin_siegessule.jpg1. United States v. Blewett, Sixth Circuit: Appellants were convicted in crack cocaine cases and sentenced to ten years under the then-applicable mandatory minimum, which was based on the quantity of crack possessed. In 2010, the Fair Sentencing Act substantially reduced crack sentences, including the mandatory minimum imposed in appellants' cases. Because the federal perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old law violates the Equal Protection Clause, the Act should apply to all defendants, including those sentenced prior to its passage. For these reasons, appellants' case was remanded for resentencing.

If you'd like to speak with us, please call (202) 640-2850. Odds are we'd love to talk to you.

Topics:  Brady Violation, Criminal Prosecution, Discovery, Fair Sentencing Act, Sentencing

Published In: Constitutional Law Updates, Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© The Kaiser Law Firm PLLC | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »