Obama Can Alter the Landscape of Criminal Law


With four more years in office, President Barack Obama likely will have the opportunity to appoint at least one new Justice to the Supreme Court, and numerous appellate and trial judges. Currently, there are approximately 82 vacancies in the Circuit and District courts across the country and only 34 nominations pending.

Perhaps a President's longest lasting and most profound legacy is found in the lifetime appointed judges. The judiciary regularly rules on issues from routine evidentiary issues to the proper application of the death penalty.

In the last few years, the Supreme Court handed down rulings reinforcing the confrontation clause by prohibiting the introduction of testimonial evidence through reports, and declaring that criminal defense lawyers must properly advise their clients of the immigration consequences of guilty pleas.

Recently, the Supreme Court applied constitutional effective assistance of counsel standards to the plea bargaining process. It may take years before we see the full impact of the Obama's judicial appointments on the criminal justice system, but see it we will.

In the next 4 years the Court will likely have to resolve the rising conflict between need for finality of criminal convictions and claims of actual innocence made by inmates who have been in prison for many years. Currently, Habeas Petitions need to be filed within one year of the conviction being deemed final. The exception for actual innocence is something the Court has only recently begun to address. One such case from Michigan, Perkins v. McQuiggin 670 F.3rd 665(6th cir. 2011), is heading to the Court now.

Observers are also interested to see if the trend to roll back the exclusionary rule will continue as the Court continues to hear cases where evidence was obtained in violation of the Fourth and Fifth Amendments to the US Constitution.

Obama's Department of Justice (DOJ) will also be able to direct its considerable resources to priorities set by the administration for the next four years. His reelection affords him some political capital, a portion of which he can use to push his criminal justice agenda.

Although the Justice Department has the responsibility to enforce the entire federal penal code, each administration's emphasis is different. In fact no justice department could investigate with equal vigor all the possible federal crimes. The sheer number of federal crimes has climbed sharply in the last 20 years.

One study reported that the number of federal crimes reached 4,450, a 50 percent rise from the 3000 that existed in the 1980s.

Every administration has an area of crime that it focuses on. Recall the “war on drugs” which resulted in the investigation and prosecution of thousands of individuals for narcotic related offenses, or the banking scandal of the 1980s, which resulted in the prosecution of hundreds of bank officers in the Southwest.

President Bush's DOJ understandably emphasized terror-related prosecutions. Recently, we have observed task forces set up to prosecute mortgage fraud.

We will see where President Obama's DOJ heads in the next four years.

With the “Affordable Health Care Act” coming on line, the DOJ may very well emphasize health care fraud—an area that is already growing. The regulations implementing the act are still being promulgated and will no doubt have their own enforcement mechanisms. Given the Administration's emphasis on this single piece of legislation, one would expect it to allocate considerable resources to enforce it and punish those who violate its provisions.

Several states have passed laws legalizing marijuana for medical use and two approved its recreational use. Oddly, those state laws conflict with federal law criminalizing marijuana possession. Ultimately, there may be reconciliation between the states and congress on whether to decriminalize or even legalize marijuana.

But until then it will be up to the DOJ to either allow the states to set their own course or trump these local laws by enforcing the federal prohibitions.

Of course, the President can lead the way in sentence reform. The United States has the highest per capita incarceration rate in the world, topping out at 750 inmates per 100,000 of population. That is higher that Russia and China.

Although the U.S. is only about 5 percent of the world's population we house nearly 25 percent of the world's prison population. The administration will have an opportunity to reform the sentencing laws in federal system.

Some, including members of the judiciary, suggest, that the mandatory minimum sentences force judges to incarcerate more people and for longer periods than is necessary. The sentencing guidelines for fraud have been criticized as being tied too restrictively to the “loss” figures resulting in guideline recommended sentences well in excess of what many think appropriate.

It will be interesting to see where the Obama Justice Department allocates its priorities and resources. If they address the major agenda issues outlined above, it will alter the landscape of federal criminal law for years after this president leaves office.

Bruce Barket, a former New York prosecutor, is a managing partner at Barket, Marion, Epstein & Kearon LLP, where he oversees the Trial Practice Group and the Post Judgment Wrongful Conviction group. He was on a team of lawyers who won the exoneration of Martin Tankleff, a Long Island resident who was wrongly convicted of killing his parents and spent 17 years in prison. Mr. Barket is a past president of the Nassau Criminal Courts Bar Association and a board member of the New York State Association of Criminal Defense Lawyers. He welcomes comments from readers.

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