Nearly two decades ago, Congress responded to this alarming threat by passing a common-sense law aimed at keeping guns out of the hands of the most dangerous batterers — those already convicted of domestic violence crimes.
The law has proven an invaluable tool for protecting vulnerable women and children. Since its passage, gun dealers have stopped about 250,000 gun sales after background checks revealed the would-be buyer had a disqualifying conviction for a domestic violence misdemeanor. Only felony convictions have caused more failed background checks.
But a new threat to the law may seriously undermine its effectiveness and allow tens of thousands of currently prohibited domestic abusers to arm themselves — and threaten their families.
On January 15, 2014, the U.S. Supreme Court will hear arguments in United States v. Castleman, which concerns the federal prohibition on gun possession by persons convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C. § 922(g)(9). The Court must decide whether to enforce the statute as written — and as Congress intended — or to seriously undermine the law and leave abused families across the country vulnerable to gun violence.
In December, President Obama commuted the sentences of eight people serving harsh prison terms on crack-cocaine convictions. Why?
Until recently, those who possessed just five grams of crack cocaine received the same five-year sentence as those who distributed 500 grams of powder cocaine; those who used 50 grams of crack received the same sentence as traffickers of 5000 grams of powder cocaine. This 100-to-1 quantity ratio between two chemically identical substances disproportionately hurt African Americans and Latinos because of federal law enforcement’s top-heavy focus on inner-city communities.
The president’s commutations are a major step forward in the ongoing saga to end injustice in cocaine sentencing. This newest chapter comes in the wake of other adjustments that have successfully chipped away at these biased disparities. Three years ago, the Fair Sentencing Act reduced the discredited 100-to-1 ratio between crack and powder cocaine to the more reasonable, but still insufficient, 18-to-1 ratio. The U.S. Sentencing Commission amended its guideline ranges to assure consistency with the provisions of the new act and applied its guidelines retroactively.
The Supreme Court, consistent with revised Department of Justice policy, agreed that cases pending in the pipeline between passage of the new law and sentencing would receive the benefit of the new law. However, only Congress or the president can remedy the plight of the remaining people whose harsh sentences occurred prior to the Fair Sentencing Act.
While momentous, the eight commutations represent only the tip of the iceberg of cases left behind when the Fair Sentencing Act became law. Several thousand cases of men and women in similar situations still await relief. Obama acknowledged that his commutations were an important first step and that “it must not be the last.”
Remember, back in junior high school, when you read that classic of American literature, “The Lottery” by Shirley Jackson? In the story, a small town ritualistically draws straws each summer to see who among them will be stoned to death, to ensure a good harvest later that fall. (Goes the local proverb, “lottery in June, corn be heavy soon!”) As the lottery begins, the townspeople gather in the public square and begin to collect rocks. The head of each family draws a slip of paper from the box, hoping not to see an inky black dot. The family that draws the black dot advances to the next round, in which one member is selected for sacrifice the same way. Tessie Hutchinson, a wife and mother of young children, draws the condemning dot, and the story ends as the terrified woman is stoned by her neighbors while she frantically protests.
Now, looking around your own world, does this dystopian game of chance seem at all familiar? Thankfully not, you are probably thinking – but if we’re really being honest, it should. On the anniversary of the soul-wrenching Newtown shootings, it’s time to concede that we, too, are participants in a lottery of our own making – one so horrifying that we mostly choose not to see it. But let’s face the grim reality. We are all living in that same nightmare town, where innocents are mindlessly sacrificed in service to ideals that don’t require this kind of sacrifice. When it comes to gun violence in America, we play the nightmare lottery every time we send our children off to school, each time we visit a public place, walk the streets, and in some cases, live in our homes.
A year ago this week, twenty-six first graders and their teachers were gunned down at the Sandy Hook elementary school in Newtown, Conn. Only days earlier, two people were killed and ten thousand terrorized by a gunman at a mall in Clackamas, Ore., where I live. A few months before that, a man walked into an Aurora, Colo., movie theater and opened fire on hundreds of people, shooting eighty-two and killing twelve. Just last week, hundreds of terrified teens were led out of a suburban Denver high school with hands on their heads after a fellow student shot two classmates and then killed himself while seeking revenge on a teacher. The mass shootings are particularly wrenching, but nearly 100 children under ten years old were killed by deliberate gunfire in 2012 alone, often by adults they knew.
The Justice Department announced last month that JP Morgan Chase would pay a record $13 billion for its role in the mortgage crisis that produced the Great Recession of 2008. The Justice Department deserves praise for reaching a civil settlement that will restore billions to investors and homeowners who were misled by JP Morgan Chase and Washington Mutual, the failing savings and loan that JP Morgan Chase bought in the midst of the financial crisis. In addition, if there is sufficient evidence, the Justice Department still can bring criminal charges against the individuals involved in the corporate wrongdoing.
It is unlikely that JP Morgan Chase will face criminal charges, however, despite causing billions in losses and untold more in collateral damage to the global economy. Instead, if the bank pays anything more, it almost certainly will be the beneficiary of a disturbing shift in corporate prosecution policy that began in the Bush administration and has accelerated during the Obama administration: the increased use of deferred prosecution and non-prosecution agreements to address corporate wrongdoing. Under these agreements, corporations can avoid criminal charges if they pay large penalties, improve their compliance programs, and cooperate in investigations. Yet plea agreements -- the preferred approach to corporate crime before the last decade -- offer the same benefits without making it appear that justice can be bought.
The Justice Department’s embrace of deferred prosecution and non-prosecution agreements has been dramatic. From 2004 through 2012, the Justice Department entered 242 deferred prosecution and non-prosecution agreements with corporations, after entering just 26 in the preceding 12 years combined (half of which occurred from 2001 to 2004). The use of the agreements has become so routine that the Justice Department’s Criminal Division now resolves most of its corporate criminal cases using “non-criminal alternatives” to prosecution. From 2010 to 2012, the Criminal Division entered more than twice as many deferred prosecution and non-prosecution agreements with corporations (46) as plea agreements (22).
Nor are these small cases involving technical violations of the law. The Justice Department agreed to a deferred prosecution with HSBC even though the bank was involved in nearly a trillion dollars of money laundering, much of it from drug trafficking. The Justice Department entered a non-prosecution agreement in the Upper Big Branch Mining disaster even though 29 miners died, and the Labor Department found that Massey, the company that owned the mine, committed over 300 violations of federal mine safety laws and kept a double-set of books to hide its misconduct from safety inspectors.
The failure to prosecute corporations like HSBC and Massey sends the wrong message about how our society views corporate misconduct and sows doubts about the Justice Department’s commitment to address corporate crime. The Justice Department would never allow individuals who committed such serious crimes to escape prosecution. So why the double-standard for corporate defendants? Why has the Obama administration continued the questionable corporate crime policies of the Bush administration?
This year should be a cause for celebration, as we mark the 50th anniversary of the right to counsel for indigent defendants recognized by the Supreme Court in Gideon v. Wainwright. Sadly, in the last year we have seen that critical right threatened by sequestration and budget cuts that jeopardize the stability of Federal Defender organizations, and that undermine the ability of Criminal Justice Act (CJA) counsel to represent these clients most in need.
Federal Defender organizations and CJA panels represent clients charged with federal offenses in over 200,000 cases each year – 90% of the defendants in federal court. This system of funded Defender organizations and private CJA counsel have together represented a model of quality and cost-effective representation, and have been protecting the adversarial system of justice for the past forty years.
This successful model is now at risk. In Fiscal Year 2013, Federal Defenders suffered a 10% cut to their budgets due to sequestration. Hundreds of full-time positions were lost, with over 10% of staff being terminated or lost to early retirement. The Defender offices were also forced to impose over 160,000 hours of unpaid furloughs. While Federal Defenders’ budgets were slashed, the Justice Department avoided furloughs for all of its employees. These cuts create greater long-term expenses through delays in litigation and longer pretrial detention.
At the end of Fiscal Year 2013, the Executive Committee of the Judicial Conference of the United States adopted emergency measures to save the Defender programs from the severe impacts of sequestration. Unfortunately, those measures required the deferral of CJA payments for up to four weeks, and the temporary reduction of $15 per hour of the CJA panel rate. This rate cut to CJA counsel undermines a rate that was secured after years of effort, and poses a real threat to the ability of private counsel to continue their vital service to the Court by providing indigent defense.