The National Attorneys General Training & Research Institute
Criminal Law Newsletter November 2017
The following is a compendium of news reports over the past month that may be of interest to our AG offices who are involved with criminal law issues. Neither the National Association of Attorneys General nor the National Association of Attorneys General Training & Research Institute expresses a view as to the accuracy of news accounts, nor as to the positions expounded by the authors of the hyperlinked articles.
The President has signed into law the bill authorizing the National Computer Forensics Institute. The institute is a federally funded training center located in Hoover, AL, that educates state and local officials in probing digital evidence for electronic crime cases. While the Institute has existed for some time, the legislation codifies its training use into law.
The United States Supreme Court has published two opinions of interest.
In Kernan v. Cuero, No. 16-1468, decided November 6, 2017, in a unanimous per curiam opinion, the Court summarily reversed a Ninth Circuit decision that had granted habeas relief to a defendant on the ground that he was entitled to specific performance of a plea agreement that was superseded and withdrawn, in accordance with state law, before the entry of judgment. The Court held that even “assum[ing] purely for argument’s sake that the State violated the Constitution when it moved to amend the complaint” and thereby the plea agreement, it was “unable to find in Supreme Court precedent that ‘clearly established federal law’ demanding specific performance as a remedy.” Indeed, Mabry v. Johnson, 467 U.S. 504 (1984), stated that Santobello v. New York, 404 U.S. 257 (1971) — upon which the Ninth Circuit relied — “expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea.”
In Dunn v. Madison, No. 17-193, decided November 6, 2017, also through a unanimous per curiam opinion, the Court summarily reversed an Eleventh Circuit decision that had granted habeas relief to a defendant on the ground that he was incompetent to be executed because he could not recall his commission of the murder. The Court explained that, in Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007), it established that “the Eighth Amendment forbids execution of a prisoner who lacks ‘the mental capacity to understand that [he] is being executed as punishment for a crime.’” “Neither Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied to his case.”
In a letter to Congressional leadership, the National Association of Attorneys General has urged repeal of Public Law 114-145, the Ensuring Patient Access and Effective Drug Enforcement Act of 2016. NAAG action such as this requires bi-partisan support and at least 36 attorneys general to sign-on before it become official NAAG policy
The United States Department of Justice has announced that the Drug Enforcement Administration intends to add all illicit fentanyl analogues to the list of Schedule I substances through emergency scheduling procedures. Emergency scheduling allows the DEA to place a substance such as analogues which have no legitimate medical use, on a temporary basis, into the listing when necessary to avoid an imminent hazard to the public safety. A temporary scheduling order may be issued for one year with a possible extension of up to six months if formal scheduling procedures have been initiated.
The US Department of Justice’s Office of Community Oriented Policing Services (COPS Office) will be providing $98 Million to 179 law enforcement agencies across the country, allowing them to hire 802 additional full-time law enforcement community policing officers. A complete list of the award recipients can be found here.
Retailers are facing more than the average shoplifter when it comes to crime. Organized theft has become the leading cause of retail loss in stores. Crime rings target both high-end goods and common household items. Designer clothing leads the items stolen by frequency, followed by designer handbags, infant formula and laundry detergent.
On December 13-14, 2017, the United States Attorney’s Office for the Middle District of Georgia, the Environmental Crimes Section of the United States Department of Justice – Environment and Natural Resources Division, and the United States Department of Agriculture – Office of Inspector General – Investigations will be hosting a regional animal fighting training in Valdosta. Information concerning the 2017 Southeast Regional Animal Fighting Training may be obtained by contacting Pam Lightsey at 478.621.2603 or emailing firstname.lastname@example.org.
FBI crime statistics for 2016, released this month, purport to show a rise of hate crimes in the United States. Anti-Islamic crimes saw the largest percentage rise over 2105, while crimes against Jews saw the largest numerical rise among crimes against religious groups. Anti-black crimes are overwhelmingly the most commonly reported type of racially motivated crime. The FBI stats may be found here.
A report by the United States Sentencing Commission has found sentencing disparities in federal criminal matters. The report, released this month, found that black men receive longer sentences for the same federal crime as white men. In addition, judges were less likely to voluntarily revise sentences downward for black offenders than for white ones.Violence in an offender’s criminal history did not appear to account for any of the demographic differences in sentencing. All female offenders received shorter sentences than while males.
Mark Neil is the Editor of Criminal Law Newsletter and may be reached at 202-326-6019. The Criminal Law Newsletter is a publication of the National Association of Attorneys General (NAAG). Any use and/or copies of this newsletter in whole or in part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail email@example.com.