Bidish Sarma

  • September 13, 2017
    Guest Post

    by Bidish Sarma

    *Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

    The panoply of laws that govern the lives of individuals convicted of sex crimes after they have served their sentences is overwhelming. As this web of civil regulation has “grown into a byzantine code governing in minute details” how these people must live day-to-day, questions about these laws’ legitimacy and constitutionality are being litigated around the country. Several courts have struck down onerous and overbroad registration requirements that apply to offenders living in the community. Yet, questions persist, particularly where the government actually deprives individuals of their physical liberty. Civil commitment schemes specifically designed for sex offenders have been in vogue for more than two decades now. The U.S. Supreme Court approved some of these schemes as they took root, but it insisted that courts could bring constitutional scrutiny to bear if it turned out these schemes were punitive. The real test of that promise has now arrived.

  • July 10, 2017
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

    Near the end of the term, the Supreme Court handed down its decision in Packingham v. North Carolina. The outcome was a slam-dunk victory for Mr. Packingham—a registered sex offender—and proponents of robust free speech protections around the country. The Court left no doubt about its commitment to protecting the First Amendment (all eight presiding justices agreed that the law at issue was unconstitutional), but it sent mixed signals about whether it would author a new chapter in its dealings with individuals convicted of sex offenses. This is an increasingly important question because for many years now sex offenders have been the target of unique, restrictive and hyper-punitive legislative schemes that raise deep constitutional questions. If the Court ducks these questions, similarly dubious laws may be used to target other groups, including individuals who have committed no crimes at all. Nobody seriously questions a legislature’s interest in protecting individuals from sexual violence. But, the time has come to ask whether society’s “war” on sex offenders who have already completed criminal sentences has gone too far.

    Packingham involved a North Carolina statute that prohibited registered sex offenders from accessing an astounding range of websites (including news websites, WebMD and Amazon). The defendant was arrested for violating the law after he posted a message on Facebook praising God because a court had dismissed a traffic ticket without imposing any fine or other punishment. In striking down the sweeping restraint on internet use, Justice Kennedy’s majority opinion acknowledged the state’s interest in preventing sex offenders from using technology to facilitate crimes, but held that the “statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” The law’s breadth and the Court’s robust protection of free speech may best explain the result. Thus, Packingham may well be “the rare case” in which the Supreme Court rules in favor of sex offenders.

    If, however, the Court is more broadly worried about laws that may infringe on the rights of people who have been convicted of sex offenses, the First Amendment is not the only amendment that requires judicial enforcement. Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”

  • July 5, 2017
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans

    Given all of his “tough-on-crime” rhetoric and crime-related fear-mongering on the campaign trail, it is no surprise that President Trump—primarily through his attorney general, Jeff Sessions—has doubled down since taking office. What we have seen so far suggests that the Trump-Sessions brand of justice has at least two core components: an aggressive charging strategy (consistently charging the most serious offenses) and the continued exploitation of unfettered prosecutorial power. Blessed with extraordinary power himself, AG Sessions is acting on his bizarre and unfounded belief that prosecutors are somehow disadvantaged in the criminal justice system. For months, commentators have wondered aloud whether the judiciary—most importantly, the Supreme Court—will stand up to the executive branch and act independently to protect constitutional norms. The Court’s weighty travel ban order issued last week provides a metric ton of tea leaves on this question for those inclined to read them. Less obvious, but nonetheless significant, are two recent decisions the Court has made regarding the due process obligation prosecutors possess to disclose exculpatory evidence to criminal defendants. Inspiring concern, these decisions point to the possibility that the Court (or a near-majority of the justices) will sign off on the administration’s expansive view of prosecutorial authority.         

    Last week, the Supreme Court issued its opinion in Turner v. United States. This was a fact-intensive case that I wrote about for the ACSblog here back in March. As several court-watchers anticipated, the Court decided the case in a narrow fashion; it took the opportunity to—as I characterized it three months ago—use its familiar and “well-worn minimalist approach in the Brady due process context.” What was surprising, however, was the outcome. Amy Howe, a wise spectator at SCOTUSblog, wrote in an oral argument preview that it appeared the “justices granted review to reverse the men’s conviction.”

  • March 13, 2017
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans

    On March 29, 2017, the Supreme Court will hear oral arguments in the consolidated cases of Turner v. United States and Overton v. United States. The Court does not rule upon questions pertaining to prosecutorial misconduct and the State’s duty to disclose exculpatory evidence very often. When it does, it tends to rely on decisions handed down decades ago despite evidence that courts struggle to enforce the relevant principles consistently and appropriately. The Turner-Overton matter thus presents both an opportunity and a challenge to the justices. The opportunity? An uncommon occasion upon which it can clarify principles and curtail the confusion that permeates lower courts’ opinions. The challenge? Moving beyond the facts presented and penetrating the deeper questions that reside beneath the surface.   

    The question presented by these cases is a relatively narrow one: whether the Petitioners’ convictions must be set aside under Brady v. Maryland. That question is one the Court itself generated; the Petitioners initially asked the Court to resolve thornier questions that sometimes arise when the State fails to turn over all exculpatory evidence before trial. While it appears that SCOTUS will most likely take its well-worn minimalist approach in the Brady due process context here, several pleadings demonstrate that deeper, systemic concerns warrant attention. 

  • July 19, 2016
    Guest Post

    by Bidish Sarmaan attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

    Four decades ago, the U.S. Supreme Court implemented a major, nationwide policy that consolidated prosecutorial authority: it granted prosecutors absolute immunity for acts committed in their prosecutorial role. This decision sheathed prosecutors in protective armor while they pursued criminal convictions through an era of crime-related hysteria, and it eroded one of the few mechanisms available to hold prosecutors accountable. Considering the growing call to acknowledge and address an epidemic of prosecutorial misconduct, now is a critical time to reflect on Imbler v. Pachtman and evaluate whether it holds up to modern-day scrutiny.     

    In Imbler, the Supreme Court held that prosecutors are generally entitled to absolute immunity from civil liability under the federal civil rights statute, 42 U.S.C. § 1983, for actions, taken in their role as prosecutors, that may have violated the rights of a criminal defendant. Absolute immunity is exactly what it sounds like—a blanket and unconditional grant of protection from civil liability. A related doctrine, qualified immunity, also protects government officials from liability, but as the Supreme Court explained in Harlow v. Fitzgerald, only if “their conduct does not violate clearly established statutory or constitutional rights . . . .” Put simply, qualified immunity protects government officials who abide by the rules (although the law defines those rules very narrowly). Absolute immunity protects them from civil liability even when they break the rules.

    As some on the Imbler Court worried, courts have applied absolute immunity broadly, even foreclosing civil suits in cases where prosecutors intentionally violate their constitutional obligation to turn over exculpatory evidence to defendants as required by Brady v. Maryland.

    SCOTUS’s Imbler decision has been critiqued over the years. The opinion turned on two key considerations: (1) the Court’s view of immunities “historically accorded the relevant official at common law;” and (2) “considerations of public policy” underlying that historical rule. The Court’s view about the historical role of absolute immunity for prosecutors has largely been debunked by scholars and by none other than Justice Scalia who, in a concurring opinion joined by Justice Thomas, once observed that “[t]here was, of course, no such thing as absolute prosecutorial immunity when §1983 was enacted.”