20160527.Nesbeth.IMG_1020“Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”[1]

Senior United States District Judge Fredric Block, in an opinion issued on May 24, [2] ruled that the collateral consequences faced by a 20 year old woman convicted of smuggling 602 grams of cocaine into the United States from Jamaica, justified a one year term of probation, even though she faced a guideline sentence of 33-41 months of imprisonment.

Judge Block reviewed the history of collateral consequences, concluding that “[t]oday, the collateral consequences of a felony conviction form a new civil death[,]”[3] referring to the scholarly work of my colleagues, Gabriel Jack Chin and Margaret Love. He decried the racially disparate impact of these laws, citing Michelle Alexander’s book, The New Jim Crow (2010). He noted the existence of collateral consequence reform efforts including an ABA Criminal Justice Standard [4]and the Uniform Collateral Consequence of Conviction Act.[5] He pointed out the sweeping breadth of collateral consequences, noting that according to the National Inventory of the Collateral Consequences of Conviction, nationwide there are some 50,000 federal and state statutes and regulations that impose collateral consequences and that some 70 to 100 million Americans are subject to them.[6]

Judge Block reviewed the state of the law, noting that while there is a split in the circuits, the law in the Second Circuit allows a sentencing judge to consider“the impact and significance of the collateral consequences facing a convicted felon as bearing upon a just punishment.”[7]

Finally, Judge Block put the idea into practice: he reviewed, in some detail, the collateral consequences the defendant faces, their likely impact on her life, and concluded:

[T]he collateral consequences Ms. Nesbeth will suffer, and is likely to suffer – principally her likely inability to pursue a teaching career and her goal of becoming a principal, Conn. Gen. Stat. §§ 10-145b, 145i – has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing.[8]

Most District Court decisions have little, if any, significance beyond resolving the particular case before the judge. This decision is different. It’s a model for counsel and judges to bring collateral consequences to the center of the plea bargaining and sentencing process, where they belong.

The reality is that for most criminal defendants, particularly those convicted of lesser crimes, principally misdemeanors, the direct consequence of convictions, such as fines, probation and even short periods of imprisonment, are almost ephemeral when compared to the long term — largely permanent — collateral consequences of conviction.

It’s worth noting that Judge’s language consistently acknowledges a truth that the law, in crucial legal fiction, ignores: that collateral consequences are indeed “punishment.” Without that legal fiction — one that Jack Chin, among others, thinks should be attacked — collateral consequences imposed by legislation and regulation adopted after conviction would be unconstitutional as ex post facto laws.

Judge Block’s opinion is a herald of a quiet revolution in criminal litigation leading to a future in which the participants in the criminal system, judges, prosecutors, and defense lawyers, focus on collateral consequences in dealing with the punishment phase of criminal cases. Perhaps it’s even the harbinger of a fundamental reassessment of the whole idea that a massive set of civil disabilities should be added to the punishment of a criminal sentence:

While consideration of the collateral consequences a convicted felon must face should be part of a sentencing judge’s calculus in arriving at a just punishment, it does nothing, of course, to mitigate the fact that those consequences will still attach. It is for Congress and the states’ legislatures to determine whether the plethora of post- sentence punishments imposed upon felons is truly warranted, and to take a hard look at whether they do the country more harm than good.[9]

Rich

_______

[1] Adam Goodheart, Lincoln, Looking For His Legacy Today, National Geographic, (April 2015).

[2] United States v. Nesbeth, 15 –CR-18 (FB) (E. Dist. N.Y. May 24, 2016). Benjamin Weiser of The New York Times covered the story on Wednesday, U.S. Judge’s Striking Move in Felony Drug Case: Probation, Not Prison (May 25, 2016).

[3] Id. at 6.

[4] ABA STANDARDS FOR CRIMINAL JUSTICE, COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATIONS OF CONVICTED PERSONS.

[5] UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT (2010).

[6] Id. at 11, n.32, citing How to Get Around A Criminal Conviction, N.Y. TIMES, AT at 22(October 19, 2015).

[7] Id. at 19.

[8] Id. at 33.

[9] Id. at 40 -41.

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Deflategate is a Legal Vacuum

by Rich Cassidy on May 3, 2016

 By Jeffrey Beall (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsLast week the Second Circuit Court of Appeals[1] upheld the ruling of NFL Commissioner Roger Goodell to suspend Tom Brady for four games because of his alleged role in the Deflategate scandal. It is a decision that should have been no surprise to lawyers who understand the law of arbitration.

That is because — as a friend of mine who is a judge says – the root word of arbitration is arbitrary. Arbitration was designed for disputes just like this one: cases in which getting the dispute resolved is more important than getting the perfect result. The idea is that a trusted third party, usually one with a deep understanding of the context within which the dispute arose, will decide the issue in quick, inexpensive, and final proceeding.   For example, a very early royal ordinance establishing a form of arbitration, described it as follows:

We ordain and establish that some certain loyal and discreet man living in London shall be appointed a judge from among the merchants to recover their debts . . . and give them a quick measure of justice from day to day . . . under a charter granted to merchants to decide questions which arise among merchants and in accord with the law merchant.[2]

All the controversy suggesting that Commissioner Goodell made the wrong decision misses the point. Right or wrong, the Players’ Association and the owners bargained for just what they got: That the League Commissioner would resolve disputes of this nature based on his own judgment.

Sure, it seems unusual by the usual standards the legal process that Goodell commissioned the investigation, evaluated its results, ordered that Brady be disciplined and then decided the “appeal” from his own decision.

But that was the deal the collective bargaining agreement established and there is a long history of applying that deal to such disputes.

Brady is not satisfied. It appears that he plans to take the unusual step of seeking en banc review of the Second Circuit decision. That is a review of the 2-1 decision of the panel by all 13 of the active judges of the Second Circuit. In that Circuit, such a review is very rare. It’s so rare that one can’t even say what the odds of such a review actually changing the panel decision. There is almost no experience to measure it by.

The fact that Brady and the Players’ Association have hired one the most highly reputed appellate lawyers in the country, former Solicitor General Theodore “Ted” Olson — of Bush v. Gore and Hollingsworth v. Perry fame — is not likely to change things.

Nor is it likely that an application seeking to have the U.S. Supreme Court review the case would be successful.

The issues argued in the Circuit, which are the limits of what can be raised in en banc or Supreme Court review, don’t present any meaty legal questions that are likely to be taken seriously in either forum.

In the Circuit, Brady and the Patriots made three basic arguments: that the evidence did not support Goodell’s ruling, that Goodell should not have been both prosecutor and judge, and that the punishment was unprecedented when compared to prior cases.

There are open legal questions about the law of arbitration. These issues are not among them. The fact is that, in the words of Gertrude Stein, “there is just no there there.”[3]

Here is my prediction: The Circuit will deny en banc review, and Brady and the team won’t get Supreme Court review. And if somehow they do, they will lose.

If Brady gets en banc review or seeks Supreme Court review, to avoid having to serve his suspension at the start of the next season, Brady needs a stay pending further review. If he gets a stay, it could prove a mixed blessing.  An unfavorable decision could arrive at almost any time. Perhaps, at a very inconvenient time. If a stay is denied, the further review becomes a mere matter of money.

In the end, I think the case will serve as an object lesson for the public and for many lawyers. Arbitration awards are nearly immune to judicial review. Right or wrong, arbitration awards nearly always bring disputes to an end. That is the idea.

Rich

[1]National Football League Management Council v. National Football League Players Association, (Docket Nos. 15‐2801 (L), 15‐2805 (CON), April 25, 2016). Read the decision here.

[2] Prynnes, Animadversions (1669) 23, cited at Earl S. Wolaver, The Historical Background of Commercial Arbitration, Univ. Penn. L. Rev. 132, 136 (1934).

[3] Gertrude Stein, Everybody’s Autobiography (1937), ch. 4.

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Should Your Law Firm Have a Social Mission?

April 1, 2016

That question has been running through my mind anew since I happened to pick up the March issue of Inc. Magazine last weekend. The cover story, Why Shark Tank’s Kevin O’Leary Wants You to be Evil,” pits traditional entrepreneur O’Leary against Adam Lowery, who is described as co-founder and chief global sustainability officer of Method, […]

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Hon. John L. Pacht: John, Congratulations, Farewell and Good Luck!

March 12, 2016

“For everything, there is a season.” –Pete Seeger On Friday, one of our founders at Hoff Curtis, John L. Pacht, left us as Vermont Governor Peter Shumlin swore him in as a Superior Judge. Our Superior Court Judges are generalist trial court judges, but Governor Shumlin appointed John to fill a judgeship recently funded to help […]

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Truth is Stranger than Fiction

January 4, 2016

Review: John Surratt: The Lincoln Assassin Who Got Away (Seattle, WA: Bennett & Hastings Publishing 2015) 361 pages, $18.95 “Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities; Truth isn’t.” ―Mark Twain, Following the Equator: A Journey Around the World (Hartford, CT: American Publishing Company 1897). Certainly, the […]

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The Joys of “To Do” Lists — Wunderlist

December 14, 2015

Organization has never come easily to me. I am focused on the substance of my work and it’s hard to find time and energy for getting and staying well-organized. But not being well organized makes things harder and slower. Many years ago, I went to a time management seminar and learned a lesson that has served me […]

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“Young Mr. Lincoln:” No Jackleg Lawyer

November 9, 2015

“Youngmrlincoln“. Via Wikipedia. Last weekend, I watched a classic lawyer movie, Young Mr. Lincoln. The 1939 film, directed by John Ford, stars a young Henry Fonda as Abraham Lincoln deciding to pursue a career in the law, and trying his first murder case. Lincoln is portrayed as saving the lives of two clients-–a pair of […]

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Why I am a Literalist About the Law

October 23, 2015

Everyone is presumed to know the law. This is a useful — perhaps even an essential — legal fiction. Of course, it is also entirely false. The truth is, no one knows the law. The law is far too massive and far too complex to be held in the mind of any single individual. That […]

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Thank You, Dan Richardson and Thank You, Vermont Bar Association

September 28, 2015

I very much appreciate this award! Thank you,  VBA Immediate Past President Dan Richardson! And thank you, Vermont Bar Association! Rich

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What Does the Future Hold for the American Bar Association?

September 24, 2015

Transitions are occasions for reflection. I’ve been a member of the American Bar Association since I was admitted to the bar in 1979, and since 1999, I’ve served in its House of Delegates. This week, I resigned my seat in the House as the representative of the Vermont Bar Association to focus on my duties […]

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