U.S. SUPRB~ COURTNO DOUBLB JEOPARDY OR EX POST PACTO PROBLEM WITH SEX OPPBNDBRCIVIL COMMITMBhT SELlNG, SlIl'ERUvTEW~ SPECL4L COntnuTmCEm v. YOUNG, No. 99-1185, Cert. to gLh Circuit (192 E.3d 870); Reversed&Remanded, 01/17/01; Opinion: O'Connor, joined by Rehnq~list, Scalia, Kemledy,Soutel; Ginsburg, & Breyer; concurring Opinion: Smlia, joined by Soatcr; ConcurvingOpinion: Thon~as; Dissenting Opinion: Stevens.Young was confined to a conunitnlent center under Washington State'sConmunity Protection Act of 1990 (Act), which authorizes the civil commitment of"sexually violent predaton,"persons who suffe~~fivm a mental abno~mality or personalitydisorder tl~at makes them &ly to engage in predato~y acts of sexual violence.YOIIII~ won relief in district court, wlucl~ held the Act was unconstitutional. Duringpendencyof appd Supreme Coo11 upheld constih~tionality of Kaosas' Sexually ViolentPredator Act in Kmm u. H~ndJck, 521 US 346, holding tl~at a similar commitn~entscheme, on its face, met substantive due process requirements, was non punitive, andt1111s did not violate the Double Jeopardy and Ex Post Pacto Clauses. District courtdeaied relief, but Ninth Circuit ren~anded for reconsideration in light of Hondfck.<strong>The</strong> "lincl~pin" of Young's claims, the court reasoned, was whether the Act was punitive"as applied to Young.DECISIONSREPORTSDR for 11fmcb 2001Held: AII Act, found to be civil, carnot be deemed punitive "asapplied" to a single individual in violation of the Do~~ble Teopardv and ExPost Pacto Clauses and provide muse for release. Respondent mot obt&release throngh an "as-applied challenge to tile Act on double jeopardy and ex postfacto grounds. In Herulvck, Court e~pressly &sapproved of evaluating a1 Act's civilnature by reference to its effect on a shgle iindividoal, holding instead ti~at COIIIIS mostfoc~~s on a vadety of factors considered in relation to the stahlte on its face, and tl~atthe clearest proof is required to ovenide legislative intent and conclude tl~at an Actdenomhated cid is punitive in purpose or effect. Court eval~~ates respondent's allegalionslutder the assumption that tl~e Act is civil, as Washh~gton Supreme Court held andNmtil Cimit achowledged An as-applied anatpis is unworkable bemuse it \muIdnew condusi\ely resolw whether a particular scheme is punilive and would therebyprevent a final detelndnation of the scheme's wdidity under the Double Jeopardy andEx Post Facto Clauses. A confinement sclteme's civil nature mnot be altered basedmerely on vagalies in the authorlzing statute's in~plementation. <strong>The</strong> Ninth Cu'cuit's "asappliedmalysis does not comport Mth precedents i11 which this Court evduated thevalidity of confi~~eme~~t scliemes. Court goes on to discuss possible remedies, statingthose m be obtained in state coul?, where persons co~ltlned have certain lights understate law. Cou~l also notes that ao action under 42 U.S.C. $ 1983 is pending against theCenter and [hat tl~e Center opelates under an injunction requiring it to take steps toinlprove canfinement conditioes. Fin'inally, C~IIIZ points out that it has not squarelyaddressed the relevance of co~lGnement conditions to a first instance determit~atiou,and that question need not be resolved here.BOP'S REGULATION DENYING BAIUY RELKASE FOR PRIOR INVOLWMENI'WTH FIREARMS HELD PBRMISSIBLB: LOPE u. DAYIS, WARDEN, et st., No.99-7504, Cert to 8th~ircuit (186E3d 1092), AfEmed, 1/10/01; Opiuion: Ghsherg;Dissent: StevensUnder 18 U.S.C 8 3621(e)(2)(B), "[llhe period a [fedelall prisoner convictedof a nonviolent offense rcmnins in ci~stody after soccessh~lly completing a [substanceabuse] treatment p~ogranl may be reduced by the Burau of Prisons" (BOP).<strong>The</strong> BOP tilerefore ranked ineligible for early release all inmates incarcerated for"crime[s] of violence." Initially, the BOP defined the tern1 "crin~es of violence" toinclude, mong other offenses, a drug t~&lcking conviclion under 21 U.S.C. 8 841 ifthe offender received a two-level sentence enhancement under United States
Sentencing Commission, Guidelines Manual (USSG) gZDl.l(b)(l), forpossessing a dangerous weapon in connection with the drug offense.Courts of Appeals we divided over validity of cl-g drug offensesinvolvhg firearms possession as crimes of violence, and cert was gmtedto resolve this question, Lopez, convicted of possession withintent to distributemed~anlphetamine, possessed a firea~m in connection with hisoffense, and was enl~anced by two levels under USSG §2Dl.l(b)(l).W13e incarcented, lopa requested substance abuse treatment, andalti~ough found qudified for the tmtment prognm, he wm ineligible,under 28 CPR 9 550,58(a)(l)(vi), for early release. Eighth Circsit heldBop's decision to deny early release to drug halfickers who canyfirearm represents a manifestly permissible statutoiy constn~ction andan appropriate exercise of discretion.Held: <strong>The</strong> regulation at issne is a permissible exerciseof the BOP'S discretion under s36211eWNB). Section3621(e)(2)(B) gives the BOP discretion to glaot or deny a sentencerednction, but leaves open the manner in whihicl~ the discretion is to beexercued. If an inmate meets the two statutory prerequisites for sentencereduction - conviction of a nonviolence offense and succesh~l conlplelion of dnlg treatnlent - lhen $362l(e)(Z)(B) instructs that BOP"may," not that it must, gimt early release. BOP may categoricallyexclude prisoners front early release elipjbilitv - . bed on their oreconvictionconduct. Court rejects Lopez's argument that BOP may take intoaccount only postconviction conduct. BOP need not blind itself to preconvictionconduct that the agency reasonably views as jeopardizing lifeand limb. By denying eligibility to violent offenders, the statute manifestscongressional concern for peeconviction behavior and for the very condnctleading to conviction. BOP may leasonably attend to these factors aswell. <strong>The</strong> stainte's restriction of early release eligibility to nonviolentoffenders does not cut short the considerations that may guide the BOP inimplementing v53621(e)(2)(B). Wnaiiy, the regulation excluding Lopezis permissible. BOP ~msonably concl~~ded that inmate's prior involvementwith firexms in connection with the commission of a felony suggestshis readiness to resort to life-end;u~gel.ing violence and thereforeappropriately determines the early release decision.COUNSEL'S FAILURE TO OBJECT TO BRRONEOUS SENfBNCEHELD INEPPBCTIVB WITHOUT PORTHBR FINDING OF "SIGNIFI-CANCE CLOWN v. UNITBD SZWE!?, No. 99-8576, Cert. to 7lh Circuit(182 E3d 921), Reversed & Remanded, Y9101: Opiilion: Kemedy(uoanimous)Glo er's federal labor mcketeering, money laondering, and taxevasion convictions wele to be grouped under United Shtes SentencingGuideUnes s3D1.2, which allows the grouping of counts invohing substantiallythe same ham, but Gosernnlent objected to grouping the moneylaundering coonts with the others, wd the hid court agreed. Glover'soffense level was thus increased by two le\ds, resulting in an inc~easedsentence of between 6 and 21 months. Counsel did not complain eitlwat trial or on appeal. Glover then IUed a pro se motion to correct his sentence,arguing that counsel's failure to pursue the issue was ineffectiveassistance, withoutwhicl~ Ids offense level would have been lower. Districtconrt denied the motion, detemg that under Cj~cnit precedent a 6 to21 month sentencing increase was not significant enough to ano~u~t toprejudice, m~d Seventh Circuit amd,relyirg on the Government's theolythateven if counsel had bee11 ineffcctiw, the resulting mcreaseiu snltencewould not consiitute prejudice.Held: <strong>The</strong> Seventh Circuit erred in en-dng onto the _arqiudicebranch of the Strickland test the requirement that mv increasein sentence must meet a standard of sienifimnce. Government nolonger asserts that a 6 to 21 month prison termincrease is not prejudiceunder Strickland. <strong>The</strong> Seventh Chcnit relied onlockharl u. FreIwU, 506U S 364,369, which holds that in some circumstances amere differencein outcome will not sufice to establish prejndice. However, in IYilliamsu. Tqtor, 529 US. 362,393, Court explain4 thelockhmf holding doesnot supplant theStrickbndanalysis. Seventh Circnit was incomct to relyon hckharl to deny relief to persons who might show deficient pellormanccin counsel's faihire to object to an error of law alteciing the sentencingcalc~llation because the sentence increase does not meet somebaseline prejudice stanhrd. Smeuth Circ~Ws nlle is not consideredin event, because there is no obvious dividing Une by which to nleasurehow much longer a sentence must be for fhe increase to constitutesubstantial prejudice. Nthougl~ the amount by which a defendant's sentenceis increased by a particular decision may be a factor in determiningwhether counsel's performance in failing to atgue the point constih~tesineffective assistance, under a determinate system of constraineddiscretion such as the Sentencing Guidelines it cannot serve as a bar to ashowing of prejudice Here the Court conside~s the sentencing calculationitself, which resulted from a ruling that had it been error, would havebeen correctable on appeal. <strong>The</strong> question of deficient performaace is notbefore the Court, but it is clear that p~ejudice flowed from the assertederror in sentencing. Court also refuses to address Gove~uinent's variousargumentsfor &nling the Seventh Circuit's judgment, as those were neitheridsed nor resolved below.NO RBTROACTMTY PROBLEM WXEN STATE COURT DECISIONDID NOT INVOLVE A NEW RULB: PIORE v. VHIlZ, WARDEN, etd., Cert. to 3~~ Circuit (149 E3d 221), Reversed, 1/9/01; Opinion: PerCuliamPiore was convicted in Pennsylvania state tout of opemting ahazardous waste facility udthont a permit. State conceded tlmt Piore didhave a permit, bnt mgned that he had comn~itted a crime beca~tse he haddeviated so dramatically from its terms State S~~preme Court reh~sed togrant revierv, but did review his co-defendant's (Scarpone) case, andreversed that conviction, wllicl~ was the same offense, ca~umitted at thesan~e me. <strong>The</strong>re, the state court held one who deviated from his permit'sterms was not a pelson without apernut, hence, a person who deviatedfrom his pe~mit's terms did not violate the statute Cot1monweaEf6v. Scarpone, 535 Pa. 273,279,634A. 2d 1109, 1112 (1993) (describingState's. ulterp~~tation as "a bald fiction we cannot endorse").Notwithstanding this rag, Piore's state w~it was rejected, but a federalcoua plted relief. <strong>The</strong> 3rd Ciicuit reversed, howemr, holding thatbecause the nile annomcedin Scarpooe was a "neW ~uleit could not beapplied retroactively to gmnt relief on federal habeas. <strong>The</strong> SupremeCourt granted cert. to determine whetha the 3rd Circuit ndhg was correct,and certfied the following question to the Pennsylvania Supren~eCourt; "Does the intaptation of Pa Stat. Ann., Tit. 35, $6018.401(a)(Pordon 1993), set forth in Cmnnwt~iuealfh a Swr~pone, 535 Pa. 273,279,634 A. 2d 1109, 1112 (1993), state the correct interpretation of thelaw of Pe~msyl~mia at the date Fiore's cmlviction became final?" (Seeopinion renianding to Slate Supreme Cou~t, 528 U S 23 (1998) for moreinforlnahon ~egarding the certified question.)hARCH 2001 1 IHYYW.TCDLI\.COM I VOlCI FOR THE DEFENSE 1 3 1 1
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