Texas Criminal Lawyer Blog

The federal courts face a crisis that has received very little attention in the mainstream press: a shortage of judges.

Unlike most state court judges, federal court judges must be nominated by the president "with the advice and consent of the Senate." The Senate holds hearings and if it finds the nominee satisfactory, a majority of members will vote to make him or her a federal judge. Once a person becomes a federal judge, he or she has the job for life, unless he or she retires, resigns, or commits "treason, bribery, or other high crimes and misdemeanors" that result in impeachment and conviction. Over the past 22 years, just two federal judges have been impeached and convicted. So unless that judge chooses to retire, he or she will likely die in office.

That seems to imply that federal courts have few vacancies to be filled. Compared to the judges' overall numbers, that may be the case; however, there are enough vacant slots to be causing some serious delays in our justice system. Currently, President Obama has 90 vacant slots to be filled, far more than under President Bush. Some of these slots have been open for three years. The crisis has been so bad that even Chief Justice John Roberts commented upon it at the end of last year, stating that it "has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened by extraordinary caseloads." Indeed, the effects are being felt across the country. In Arizona, the lack of judges to hear criminal cases led the Chief District Judge to declare an emergency and extend the time limit for bringing a criminal suspect to trial -- from within 70 days of the indictment to 180 days. And here in Texas, there are two vacancies and three "semi-retired" judges in the Western District (which includes El Paso, Pecos, Midland, Waco, and Alpine) and four vacancies and seven "semi-retired" judges in the Southern District. Their district courts are overwhelmed by immigration cases and feeling the effects of the shortage.

What are the reasons behind so many vacancies? Most lies in partisan politics. Partisan politics has always existed in the selection of judges, as both national parties seek to place their ideological stamp on the judges who will hear cases that could affect the nation. Unless the Supreme Court agrees to hear a case, federal judges have the last word in how federal law is interpreted. However, the partisan problem seems especially acute now. Qualified judges are not even permitted an up-and-down vote in the Senate. Obama nominees take more than 200 days to be confirmed, compared to 114 days under President Reagan. The Senate's role is to give advice and consent, not to refuse to let the nominee be considered at all.

This problem reaches down to the lowest levels. A federal criminal defense attorney wants his clients to have their day in court as quickly as possible. He does not want his client to face an unnecessary delay before finding out if he will be convicted of drug possession or a white collar crime. The client also deserves to have a judge who is fully knowledgeable of the case -- which may be more difficult if the judge is overburdened and overwhelmed by other cases.

In Brown v. Plata,(563 U.S. _____,09-1233(5/23/11) The United States Supreme Court has recently ruled on a case originating from a class-action lawsuit filed in 2001 on behalf of several California prisoners alleging that crowded conditions in California prisons violated the ban on cruel and unusual punishment as provided by Eighth Amendment of the U.S. Constitution.

After a long trial on the merits of the case, a three judge panel of Federal Judges found that serious overcrowding was the primary cause and as such violated the eighth amendment. The judges then ordered 46,000 inmates turned loose.

Needless to say, this caused the state of California enough concern to take the case to the U.S. Supreme Court. The Supremes recently ruled in a 5-4 decision that a population limit in California prisons could be applied by Federal Judges to remedy the violation of prisoner's rights, and that the lower court was correct in releasing the inmates.

In effect,said Justice Scalia in a blistering dissent, Federal Judges are now running state prison systems, contrary to the Constitution. Scalia described the court's majority opinion as " the most radical injunction issued by a court in our Nation's history: an order requiring California to release the staggering number of 46,000 convicted criminals."

What happens after this should be interesting. First, it is my experience that, ironically, most of the places currently housing federal prisoners awaiting trial are pretty miserable places. Many are "private jails" run by corporations for profit--they lack competent staff, are crowded, are lax in security, and are generally far short of a model for anyone, much less for those awaiting trial before the same judges who are now running California prisons.

Secondly, Congress as an institution does not like Federal judges. The Federal Sentencing Guidelines are part of the legislative body's reaction to Federal Judge John Sirica's muscle in the Watergate days of the Seventies which resulted in the resignation of President Nixon. Congress continues to pass mandatory minimum sentences to further limit discretion on the part of sentencing judges in their application of the Guidelines. In short, judicial discretion is a nasty phrase in the Congressional dictionary. The two bodies are natural enemies, despite the fact that judges are political appointees.

Congress is certainly not going to sit still for this latest example of judicial stick-wielding, and I am certain that the reaction will be more legislation restricting judicial discretion.

In addition to state "three-strikes" laws, there is a federal counterpart called the Armed Career Criminal Act of 1984. It is meant to provide sentence enhancements for those with prior convictions involving firearms. If you get three such convictions, the ACCA kicks in. The ACCA provides for a 15-year minimum sentence on top of the sentence for the crime itself if you have three prior convictions for a "violent felony" or "serious drug offense," each of which carries a 10-year maximum sentence.

Recently, in McNeill v. United States, the Supreme Court examined the question of whether the ACCA applied even to crimes where the state legislatures later reduced the sentence. McNeill had been convicted of drug trafficking in North Carolina six different times between 1991 and 1994. At the time of conviction, each crime had a maximum sentence of 10 years. In 1994, North Carolina reduced the sentence for selling cocaine to 38 months and the sentence for possessing cocaine with the intent to sell to 30 months. McNeill argued that since the state reduced the maximum amount of time from 10 years, the ACCA no longer applied. In a unanimous decision, the Supreme Court disagreed, holding that the ACCA did apply.

The Court looked at the plain language of the Act and determined that what mattered was the offense at the time of conviction, not at the time of federal sentencing. If when McNeill was convicted, the penalty was 10 years, then he could not avoid the ACCA just because the state legislature later reduced the penalty.

It is hard to disagree with the Court's logic, which is that if they adopted McNeill's argument, some with prior convictions could watch them disappear entirely if the state legislature chose to reduce penalties for the crime. There needs to be some consistency in sentencing, or else law enforcement and the convicted alike will never feel sure of where they stand. Even so, this situation reminds me a little too much of the Federal Sentencing Guidelines. You have a crime (usually involving drug possession) that may not be terribly harmful in the grand scheme of things. Yet the penalty is harsh and unyielding. You may ask whether possessing cocaine (even with the intent to sell) is really on the same level as a violent felony. No matter; for the purpose of sentencing, they are one and the same. At least the North Carolina legislature realized that cocaine possession did not merit such a harsh punishment and reduced it accordingly. Unfortunately, it did so too late for McNeill.

Sentencing needs to be consistent, and to carry weight. However, it is unfortunate that in the case of drug possession especially, there is so little room for sensible reconsideration of the penalties. Many have begun to rethink the war on drugs and the laws that have resulted from them. It could be decades, though, before we start to see widespread changes in, or even revocation of, drug laws across the country. Until then, those facing a drug conviction can only hope that a strong federal criminal defense attorney can reduce their charges before they face a sentence subject to the ACCA.

The criminal justice system is rife with inequalities, and juveniles are one of the groups hit hardest.

In theory, juveniles have almost the same constitutional protections as their adult counterparts. No matter how reprehensible the crime, the teenager is entitled to be defended in court by a criminal defense attorney. To search a teen, law enforcement officials must have probable cause (the exception being a search on school grounds by a school official). Juveniles must have notice of the charges they are facing. They also have a right to representation in court proceedings, and to have an attorney appointed if they can't afford to hire one. At the same time, the widespread view is that many juveniles who commit crimes deserve a second chance. Therefore, juveniles convicted of their crimes at a hearing usually go to a youth detention center instead of a regular prison in order to be rehabilitated. Last year, the Supreme Court ruled that juveniles could not be forced to serve life sentences without parole for crimes other than murder.

In practice, however, constitutional and other protections are often overlooked. Juveniles lack even adequate counsel, let alone an experienced criminal defense attorney who knows how to defer prosecutions or navigate the minefield of discovery, notice requirements, and motions to suppress. Furthermore, social outrage over certain crimes has led many states to make it easier for juveniles to be tried as adults. Teens are forced to serve lengthy sentences in adult prisons, despite the large gap in perspective and reason that too often exists between teens and full-fledged adults. In adult prisons, juveniles are more likely to be abused than adults, and have fewer opportunities for rehabilitation and education. Juveniles who serve less than a life sentence in adult prisons are more likely to return to crime than if they had served in a juvenile facility.

The harsh mentality toward juveniles can lead to some cruelly absurd results. For example, the age of consent in Texas is 17 years old. Anyone less than 17 years old is a considered to be a child. That means in theory, a teenager could be found guilty of sexual assault (a second-degree felony) if he or she had sex with someone younger than 17. While in certain situations, punishment for sex with a child may be justified, a 17-year old male in Texas could be sentenced for having consensual sex with a 13-year old whom he thought was really 14. There may be no indication of coercion or trickery, but the 17-year old is punished just the same -- despite the fact that his "crime" is far different from that of a 30-year old having sex with a 13-year old girl. The 17-year old is forced into a system that mistreats him, and faces the loss freedom for a significant amount of time. This could have a lasting impact on him, creating a criminal where one might not have existed otherwise.

That is not to say that juveniles who commit crimes should be let off the hook. All crimes should be dealt with seriously, especially violent crimes. Still, with teenagers, you always need to consider whether the crime merits a lengthy sentence in adult prison or juvenile facility. Was the crime caused by carelessness or short-sightedness that is so often found in that age group? Is there no reason to believe the teen can turn his or her life around? Many people erroneously assume that the mold has been set, that a "bad" teen will be an adult criminal. But if the teen's situation is treated with sensitivity, instead of being dismissed, the criminal justice system may be able to prevent this from happening.

In the recent case of Kentucky v. King, the Supreme Court ruled that police can create an emergency that allows them to enter someone's home without a warrant.

Normally, the home has the highest level of protection available. Police cannot just enter and search because the Fourth Amendment guarantees "the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." To enter and search a home, police must have a warrant, which is based upon probable cause. Probable cause requires more than just a hunch that the homeowner is, for example, selling drugs. Police must have a reasonable belief, supported by circumstantial evidence, that the homeowner committed a crime. They must then submit an affidavit stating the basis for their belief to a magistrate. If the magistrate accepts the reasoning, he or she will issue a search warrant that clearly states the scope of the search. Police cannot search the upstairs of a house when the warrant limits the scope to downstairs.

One exception to the scenario above is known as "exigent circumstances." Under exigent circumstances doctrine, police do not need to obtain a warrant to enter a home as long as they have probable cause. Sometimes an emergency situation exists, requiring the police to enter immediately. The suspect might be on the verge of destroying the evidence, harming someone else, or escaping. Over the years, there has been some conflict over what is urgent enough to be "exigent circumstances." Now the U.S. Supreme Court has held that police-created emergency situations fall under the exigent circumstances heading.

In Kentucky v. King, Lexington police officers followed a suspected drug dealer into an apartment building. Though they didn't know which apartment the suspect had gone into, they smelled marijuana coming from one. After they knocked on the door and announced themselves, they heard shuffling noises. They opened the door and found the suspect with drugs and drug paraphernalia.

All of the justices joined the majority opinion except for Justice Ginsberg. They held that exigent circumstances applied even in police-created emergency situations because a police search needed only to be reasonable and based on probable cause. While a warrantless search was presumptively unreasonable, the presumption could be overcome when the "exigencies" of the situation made the needs of law enforcement compelling enough. The Court rejected the lower courts' "police-created exigency" doctrines, which were created as an exception to the usual "exigent circumstances" rule. These doctrines placed too great a burden on police officers to behave in a certain way that would not create an unnecessary crisis. The Court found that the police did not act in bad faith and had the necessary probable cause before entering.