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Interrogating Justice: The Subtle Radical Reforms of Attorney General Merrick Garland, by Fellow Traveler Fred Aaron

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Fred Aaron is a member of our White Collar Support Group that meets on Zoom on Monday evenings. 

Reprinted by permission from InterrogatingJustice.org, March 13, 2023

If we lived in a perfect world, Merrick Garland would be an Associate Justice of the Supreme Court. When Antonin Scalia passed away on Feb. 13, 2016, President Barack Obama exercised his powers under Article II, Section 2, of the Constitution to nominate Garland to fill the vacancy. However, Senate Majority Leader Mitch McConnell immediately declared the nomination null and void since this was a presidential election year. In conjuring a rule out of thin air, McConnell declared “the American people should have a say in the court’s discretion.”

This was so arbitrary and capricious that it made the infamous Tuck Rule in the 2002 AFC divisional playoff game look like a paragon of transparency. Moreover, McConnell ignored his own rule when President Donald Trump later nominated Amy Coney Barrett to fill the vacancy created when Ruth Bader Ginsburg died. This was truly one of the greatest examples of Congressional hypocrisy as Ginsburg died on Sept. 18, 2020, less than two months before the presidential election. This was much closer to the election than the Garland nomination. Yet, McConnell decided to ignore his own rule much like how the NFL ignored enforcing the Tuck Rule all the thousands of other times a quarterback had fumbled.

The December 16 Memoranda

However, fate sometimes plays an interesting role in life. President Joe Biden nominated Merrick Garland to become Attorney General after his inauguration. A slim majority in the Senate then approved Garland’s nomination. While McConnell may have blocked Garland from taking a seat on the Supreme Court, he may have inadvertently given Garland even more power as a result.

A strong argument can be made that Garland now has more power to shape criminal justice reform as the highest ranking law enforcement officer in the nation than he would have as one of nine Supreme Court justices. We are seeing this happen in real time. On Dec. 16, 2022, Garland issued a pair of memoranda to all federal prosecutors. These simple memoranda have radically reformed how all of the Assistant U.S. Attorneys are to handle criminal justice matters going forward. Let’s take a look at how the Dec. 16 memoranda will alter the criminal justice system, making it more equitable for federal defendants.

Image courtesy of Gage Skidmore via Wikimedia Commons.

Determining Whether to Bring Federal Criminal Charges

The first of the two memoranda covers a number of different topics, including charging, plea deals and sentencing. When it comes to charging a possible defendant, the first memorandum radically departs from Garland’s predecessors in the Trump administration, William Barr and Jeff Sessions. The Trump Attorneys General instructed federal prosecutors to “charge and pursue the most serious, readily provable offense.”

Garland instructs prosecutors that if there is no federal interest in the prosecution or there are non-federal alternatives, then charges should not be pursued. For example, if the alleged crime relates to only a state interest and is being pursued by a state’s attorney or a district attorney, then federal charges should not be pursued. This would end also end the practice of charge-stacking.

In addition, if there is an adequate non-criminal alternative to prosecution, then federal prosecution isn’t warrant. For example, if the SEC is pursuing a civil remedy that will adequately compensate the victims of a securities fraud, while creating diversion to any future violations by the alleged perpetrator. If this is actually followed by the DOJ, it could lead to an end of the piling on phenomena experienced by many federal defendants.

An End to Coercive Indictments

The next instruction may be one of the most radical yet. First, Garland admonishes federal prosecutors not to be influenced by a “person’s race, religion, gender, ethnicity, national origin, or sexual orientation; or political association, activities, or beliefs.” These are all protected classes of people by operation of constitutional law. In addition, prosecutors cannot be guided by personal feelings or their own self-interest. This would seem to be a reaction to complaints that there are too many federal prosecutors looking to make a name for themselves.

Garland also states that “[c]harges may not be filed, nor the option of filing charges raised, simply to exert leverage to induce a plea.” It is not clear if Garland is talking about people being threatened with prosecution themselves. In this practice, prosecutors threaten to pursue additional charges if an individual does not plead guilty. He also could be referring to the common practice of threatening indictments against friends and relatives to coerce a plea. Critics of the DOJ have long cited these practices as going against the interest of justice. Either way, these coercive practices are now effectively being ended by Garland’s work.

Proportionality in Choosing Charges and Sentences

Another major criticism of federal prosecutors has been that they charge defendants with the maximum level of crimes. This was certainly the case under Trump. Further, federal prosecutors have also almost always requested the maximum sentences. This means that they look for the top end of a sentencing guideline. In addition, they often request upward departures from the guidelines formula. The only time they request a downward departure is with a cooperating defendant. Otherwise, federal prosecutors have always looked to super-size the charges and the sentences. Garland’s first memorandum should end this practice.

Garland instructs federal prosecutors to take proportionality into consideration. In other words, the charges and the sentence should be proportional to the defendant’s conduct. This is something that the DOJ had been moving away from, especially with respect to charges that carry a mandatory-minimum sentence. This resulted in relatively low level participants in a crime or fraud getting hammered with long prison sentences. Now, prosecutors have been advised to move away from charging crimes with mandatory minimums. Garland has also instructed prosecutors to consider downward departures if the sentencing guidelines would impose a particularly harsh sentence.

Image courtesy of Senate Democrats via Wikimedia Commons.

An End to Coercive Plea Deals

According to the Pew Research Center, more than 90% of federal defendants plead guilty rather than go to trial. While 8% were fortunate to have their charges dismissed, the remaining 2% who decided to go to trial were convicted. Only 320 criminal defendants who went to trial in 2018 were acquitted. With those numbers, it is not surprising that so many defendants choose to plead guilty. Garland has made note of this and instructed federal prosecutors to not use the threat of additional charges to coerce a plea. Hopefully, this will lead to more defendants exercising their constitutional right to a trial as it should lessen the trial penalty. It should also allow defendants to have more leverage in negotiating a plea deal that is more proportional to the defendant’s actual conduct.

The Disparity in Sentencing for Crack and Powder Cocaine

The Anti-Drug Abuse Act of 1986 created a five-year mandatory minimum sentence for possession of five grams of crack cocaine. Meanwhile, an individual would have to possess 500 grams of powder cocaine in order to trigger the five-year mandatory minimum. The result has been a disproportionate number BIPOC people in federal prisons. Crack is more common in that population than powder cocaine, which is more common in white, affluent communities. Science does not support his distinction. Nevertheless Congress put them in place to address the hysteria surrounding crack. The Fair Sentencing Act of 2010 changed the proportion to 18:1, but this is still leading to a disparate impact on poor and minority populations.

While Congress has dithered over the EQUAL Act, which would eliminate the distinction and the mandatory minimum altogether, Garland has taken matters into his own hands. In his second memorandum, he instructs his federal prosecutors to steer clear of charges with mandatory minimums in drug cases. This also applies to plea deals and sentencing: “For example, a prosecutor could ask the grand jury to supersede the indictment with charges that do not carry mandatory minimum sentences; a defendant could plead guilty to a lesser included offense that does not carry the mandatory minimum; or a defendant could waive indictment and plead guilty an information that does not charge the quantity necessary to trigger the mandatory minimum.”

A Brighter Future Tempered by a Political Reality

Hopefully, the federal prosecutors across the country will take note of Merrick Garland’s two memoranda. If so, we could see a number of positive developments. First, we will probably see a reduction in the racial and economic disparity seen in federal drug prosecutions and incarcerations. Second, we could see an end to the practice of threatening charges in order to coerce plea deals. Finally, we may see a federal criminal justice system that seems less arbitrary and capricious.

This hope for a brighter future does have a limitation. There is the chance that a number of AUSAs around the nation may choose to ignore the guidelines set forth by Garland. Bureaucratic pushback is always an issue with the federal government. This may be the case in so-called “red” states.

In addition, the next Attorney General could supersede the reforms contained in Garland’s memoranda. Just as Garland ended a number of practices adopted under Barr, so could a Republican Attorney General go back on the reforms enacted by Garland. Still, these radical reforms created by Garland are a step in the right direction.

White Collar Support Group 350th Meeting Reflection: “Paying it Forward While Paying it Back”, by Fellow Traveler Fred Aaron

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Fred Aaron is a member of our White Collar Support Group that meets on Zoom on Monday evenings. On March 6, 2023, we will hold our 350th meeting – 7 years of community! In honor of this milestone, we’ve asked our group members, guests and supporters to contribute written reflections for publication on our websites, emails, newsletters and social media. If you would like to submit your contribution, please contact us at [email protected]. Thank you!

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The woman handed my wife her passport, then took mine and walked away. Anita and I looked at each other. Such is the life of someone who has been convicted of a felony. You always expect a catch. We saw the woman walk over to one of the uniformed men on the side. They were talking animatedly for a few minutes, glancing down a few times at my passport. Then the woman turned and started walking back with an enigmatic smile on her face. She handed back my passport, and stated, “Bruchim Habaim. Enjoy your trip to Israel.”

If you’ve traveled on El Al to Israel, then you know this routine. As the national airline of Israel, El Al has its own security procedures. In addition to onboard anti-missile defenses, armed air marshals on flights, and Glatt Kosher food, El Al also has a process of interrogating prospective travelers to determine their reasons for traveling to the Jewish State, their eligibility to enter the country upon arrival, and whether they fit the profile of someone who can cause a safety problem on the flight.

This was not only my first trip to Israel; it was also my first trip abroad since completing my term of Supervised Release and retrieving my passport from the lockbox at the EDNY Pre-Trial office at the D’Amato Courthouse in Central Islip. The good news was that I pretty much knew that the passport control process when I arrived at Tel Aviv 12 hours later would go smoothly, which in fact it did.

As you can probably tell, I am further along in the justice-impacted process than many other Fellow Travelers. I completed my one-year term of Supervised Release in 2019. This followed 38 days of home confinement, 3 days at the Brooklyn Halfway House, 328 days at FCI Otisville Camp, and 5 years and 2 months of pretrial process from my arrest at home on April 5, 2012 until I self-surrendered at Otisville on May 31, 2017.

An odd fact is that these dates also coincided with major Jewish holidays, the arrest on the date of the Fast of the First Born before Passover and the self-surrender on the first day of Shavuot. This is why I was greeted at Otisville by a Chassidic Jew bearing a slice of cheesecake. You can’t make some of this stuff up!

Some folks ask me why I still participate in the White Collar Support Group even though I’ve been a “free” man for almost 4 years now. There are three reasons for this. First, I am still struggling with my own demons from that time. You can’t have gone through what each of us has dealt with without having some damage inflicted upon yourself and your psyche. Mine usually visit late at night in dreams. Coming to the meetings is incredible therapy.

The second reason is about paying it forward. There are those who helped me along the way. Some of them were at Otisville, others at the Brooklyn Halfway House, and still more in the Group. Now, there are more new people joining us, newly minted justice-impacted people. I owe it to the people who helped me along the way to help those who are now joining us, who are early on in this process. I hope that my words can give some solace or provide some guidance as each member confronts his, her or their own personal battle with the criminal justice system.

Finally, I have hopes that our meetings will lead to a movement. Justice-impacted people are the only identifiable group that it is both socially and legally acceptable to discriminate against. We are the butt of jokes. We are considered less than people, and treated like we bear the Scarlet Letter. That will only change by getting organized and taking the necessary steps to change the laws and change public perceptions. This is part of the work that I am doing at Interrogating Justice.

Congratulations to Jeff, Bill and the WCSG on the upcoming 350th Meeting. This is a testament to the important work you are doing. You are not just guiding the Fellow Travelers facing incarceration, currently incarcerated, and re-integrating into society. You are also creating the community we need if we are going to effect social change. Thank you.

White Collar Support Group Blog – Fellow Traveler Fred Aaron, Writing for Interrogating Justice

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Fred Aaron is a member of our White Collar Support Group that meets on Zoom on Monday evenings.

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Huge thanks to our friends at Interrogating Justice for permission to reprint and link.

The Unexpected Impact of Dobbs on Criminal Justice: Part I, by Fred Aaron

A legal precedent is something that has the force of settled law. It is a court decision that has gained such wide-ranging acceptance that the legal community views it as foundational. That is why it was a major shock when the Supreme Court in Dobbs v Jackson Women’s Health Organization not only deemed the Mississippi law limiting women’s access to abortion constitutional but also overturned the 50-year precedent established in Roe v Wade, allowing states to now outlaw abortion completely in the process.

In fact, 14 states have laws banning or restricting abortions that immediately came into effect as soon as Roe v Wade was overturned. These so-called trigger provisions stripped women of their abortion rights in the blink of an eye. While the impact on women’s healthcare from the Dobbs ruling has been well known, what has not been reported is the far-reaching implications of Dobbs for justice-impacted people and the effect of Dobbs on the criminal justice system.

What is Precedent?

Now that the Supreme Court has overturned Roe v Wade by the slimmest of margins (5-4 with Chief Justice John Roberts concurring only in allowing the Mississippi law to stand but dissenting on the issue of overturning Roe), what is the future of other legal precedents? Keep in mind that four of the five justices in question stated under oath during their Senate confirmation hearings that Roe v Wade remained settled law, while noting the doctrine of stare decisis that gives significant weight to prior Supreme Court decisions.

For example, Justice Samuel Alito, who wrote the opinion in Dobbs, stated during his confirmation that “Roe v Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time.” Justice Alito wasn’t alone in these sentiments.

Similarly, Justice Neil Gorsuch made the strong point that “Roe v Wade, decided in 1973 is a precedent of the United States Supreme Court. It has been reaffirmed. A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”

Justice Brett Kavanaugh made a similar comment, describing Roe v Wade as “settled as a precedent of the Supreme Court, entitled to respect under principles of stare decisis.”

Justice Amy Coney Barrett made analogous comments as well, while noting that Roe is not a super-precedent like Marbury v Madison, which dates from the earliest days of the U.S.

Four of the five justices who voted to overturn Roe v. Wade called the case “important precedent,” “precedent” that has been “reaffirmed,” “settled as precedent” and “entitled to respect under principles of stare decisis.”

Read the full article: https://interrogatingjustice.org/ending-mass-incarceration/the-unexpected-impact-of-dobbs-on-criminal-justice-part-i/

The Unexpected Impact of Dobbs On Criminal Justice: Part II, by Fred Aaron

My wife and I welcomed our first child into the world 19 years ago. It was a beautiful, sunny Friday afternoon in New York City, and my wife and son spent their first night together in a room with another first-time mother and her child. In fact, all the new mothers at New York Hospital were sharing rooms that September weekend, except for two.

The first was a wealthy woman who was in a huge, private suite at the end of the hall bedecked with enough flowers to send everyone to the allergy ward. The other mother in a private room really wasn’t alone. A member of the NYPD stood guard outside her room, with another police officer stationed inside. The new mother had her right wrist handcuffed to her bed and had to request the police officer to release her if she needed to use the bathroom. She was incarcerated at one of the many detention centers scattered around the five boroughs of New York.

The reality of that woman is lived by every pregnant person currently incarcerated in this country. And the ruling in Dobbs v Jackson Women’s Health Organization makes that already-bad situation much worse. Healthcare for incarcerated people is already something that is less than optimal. Dobbs promises to make neonatal care even worse, while limiting the right to terminate any unwanted or risky pregnancy.

Pregnancy has always been an issue inside of jails and prisons.

Prisons are and always have been segregated based on gender. Officials house biological women in different facilities from biological men, with different states and the federal government treating transgender, non-binary and intersex individuals differently depending on where they’re at.

For example, The Transgender Respect, Agency, and Dignity Act (SB 132) requires that the California Department of Corrections and Rehabilitation house transgender, non-binary and intersex individuals according to their gender identity. CDCR has identified 1,616 individuals who fit this profile as currently incarcerated in California. This is why many people would assume that pregnancy is not an issue with incarcerated people.

The reality is that an average of 58,000 pregnant individuals are admitted into jails, prisons and detention centers every year, according to a study by the Prison Policy Initiative. These individuals require specialized healthcare that is often lacking inside of correctional institutions. Pregnant inmates are more likely to miscarry, with the same study finding that miscarriage rates are 19% to 22% depending on the state, far exceeding the national average.

Read the full article: https://interrogatingjustice.org/uncategorized/fairness-in-sentencing/the-unexpected-impact-of-dobbs-on-criminal-justice-part-ii/

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Fred Aaron is the Grant Writer for Interrogating Justice, as well as a contributing writer for Interrogating Justice and How to Justice. Becoming a justice-impacted person wasn’t on Fred’s bucket list, but a series of bad decisions and errors in judgment led him to a 14-month bid at FCI Otisville. Prior to that, Fred had practiced law in New York State for over 25 years, including conducting a number of federal and state trials, and assisting nonprofits obtain IRS certification. Fred’s experience with the criminal justice system has given him insights into the need for reform and better opportunities for justice-impacted people. While at Otisville, he completed half of his course work for an MBA in Leadership from Adams State University, which he completed upon release. This gave him firsthand experience with the barriers and hurdles inmates must overcome in order to exercise their right to college and post-graduate classes. Before coming to Interrogating Justice, he worked as a management consultant for a real estate development company and content director for an on-line life simulation game. He also writes freelance articles for the automotive industry. A native New Yorker, Fred currently lives on Long Island with his wife and college aged son and daughter. He holds a Juris Doctor from NYU Law School where he served as the Executive Editor of the NYU Review of Law & Social Change. Fred also has a BA with Honors in Politics from Brandeis University, where he was one of the leaders of WBRS-FM, the college radio station. In his free time, Fred is a social media enthusiast, pop culture junkie, diehard Mets and Rangers fan, and lifelong amateur guitarist. Fred can be reached at [email protected].