October 16

No More Mandatory Minimum Trial Penalty

Attorney General Eric Holder, in a Memo to federal prosecutors dated September 24, 2014, prohibits using the threat of enhanced mandatory minimum sentences (21 U.S.C. § 851) to force criminal defendants to plead guilty.

For example, a defendant charged with conspiracy to distribute 5kg. or more of cocaine would be subject to a mandatory minimum sentence of 10 years. But if the defendant had one prior controlled substance conviction, the prosecutor could threaten to file a “§ 851 notice” doubling the mandatory minimum sentence to 20 years, if the defendant did not plead guilty. This is the so-called “trial penalty” used by federal prosecutors to pressure defendants to plead guilty and to give up their constitutional right to a trial by jury.

July 16

New Dept. of Justice Clemency Initiative for Federal Inmates

The criteria the Dept. of Justice will consider when reviewing clemency applications from federal inmates are as follows:

  • They are currently servcing a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • They have served at least 10 years of their prison sentence;
  • They do not have a significant criminal history;
  • They have demonstrated good conduct in prison; and
  • They have no history of violence prior to or during their current term of imprisonment.

See the press release for more information.

The National Association of Criminal Defense Lawyers Clemency Project 2014 is underway, collaborating to recruit and train attorneys on how to screen for prisoners who meet the criteria laid out by the deputy attorney general.

Inmates seeking representation by pro bono attorneys provided by Clemency Project 2014 attorneys should complete the online Trulinks survey provided by the Bureau of Prisons or the paper survey that will be made available by case managers and be sure to check the box indicating that they wish to have.

July 3

Search Warrant Required to Search Mobile Phones

The U.S. Supreme Court, in Riley v. California, ruled that the police must first obtain a warrant before searching a mobile phone seized during the arrest of a suspect. The court left open the possibility that the police might lawfully examine the data on a phone in an emergency situation on a case-by-case basis (exigent circumstances exception to the warrant requirement). The decision left unresolved the legality of the police use of technology such as “Stringray,” that allows the police to intercept cell phone signals by masquerading as a cell phone tower — an International Mobile Subscriber Identity locator, or “IMSI catcher.” A Wall Street Journal article has an explanation of the device.

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