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12/18/2017

Plea Bargaining and Its Effect on The Sixth Amendment

Earlier blog posts on criminal justice and policing reform focused on overcriminalization, mandatory minimums, and other perverse incentives within our justice system. This post will focus on the Sixth Amendment and Plea Bargaining. For the purposes of this post, “plea bargaining” refers to “agreements between defendants and prosecutors where defendants agree to plead guilty to some or all the charges against them in exchange for concessions from the prosecutors.”[1]  Because of the extensive use of plea bargaining, the Sixth Amendment right to public trial is fading.

Over 200 years ago, the United States Constitution became the supreme law of the land with the later accompaniment of the Bill of Rights. Included in the Bill of Rights is the Sixth Amendment, which states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…; and to have the Assistance of Counsel for his defence [sic].”[2]A criminal defendant’s right to a jury trial exists to prevent the oppression from the government.[3] Further, “providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”[4]

As mentioned in an earlier post, we have started to see a rise in the use of mandatory minimums. Because of this, there has been a shift from using the trial process, to using a plea bargain.[5] In fact, today only 3% of federal cases are resolved by way of the Sixth Amendment.[6] According to Jenia I. Turner, PLEA BARGAINING, “plea bargains increasingly require defendants to waive important procedural rights that are designed to ensure fair and accurate outcomes.”[7] The right to remain silent, confront witnesses, have a public trial or jury trial are all inherently waived by a guilty plea.[8] Thus roughly 97% of federal cases are resolved without these procedural protections.

In many jurisdictions, judges are prohibited from participating in or commenting on the plea negotiations.[9] Most sentencing power now lies with the prosecutors, who have minimal boundaries. In fact, there is only one restriction placed on prosecutors: they cannot use illegal threats to secure a plea.[10] For example: “If a prosecutor says, ‘I’ll shoot you if you don’t plead guilty, the plea is invalid.”[11] Alternatively, if a prosecutor threatens to charge a defendant with a crime punishable by death at trial, and this threat causes the defendant to accept a plea agreement, this method is lawful.[12] Further, with the presence of probable cause, prosecutors can threaten to bring charges against the defendant’s family[13] Today, individuals who elect to use their Sixth Amendment right, essentially face harsher sentences than those who accept a plea bargain.[14] With mandatory minimums and other sentencing enhancements, prosecutors can often dictate the sentence that will be imposed.[15] According to Bill Cervone, the State Attorney in Gainesville, FL and Chief Prosecutor in Florida’s Eighth Judicial Circuit, “legally, you cannot impose a longer sentence on someone because they exercised their right to trial…factually, there are always ways to do it.”[16]

Unfortunately, as the system currently exists, there are minimal safeguards for those who pick going to trial over accepting a plea bargain. Furthermore, when defendants do accept a plea bargain, judges have limited ability to ensure that their decisions are made knowingly, voluntarily, and intelligently. As discussed in earlier posts, the Sentencing Reform and Corrections Act (“SRCA”), if signed into law, would reduce penalties for non-violent repeat offenders and restore judicial discretion in cases of low-level offenders below the mandatory minimum. These changes are important because, as the use of mandatory minimums decreases, there could be an associated decrease in the use of plea bargaining. While SRCA only addresses a portion of the much-needed criminal justice reform, passing it would be a great first step.

Katie Parr is a law clerk at Cause of Action Institute

[1] Legal Information Institute, Plea Bargain, https://www.law.cornell.edu/wex/plea_bargain

[2] U.S. const. amend. VI.

[3] See Duncan v. Louisiana, 391 U.S. 145, 156.

[4] Id. at 155.

[5] 3 Jenia I. Turner, Reforming Criminal Justice, Pretrial and Trial Processes, Plea Bargaining, 2017, at 87.

[6] Dylan Walsh, Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, The Atlantic (May 2, 2017), https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/

[7] 3 Jenia I. Turner, Reforming Criminal Justice, Pretrial and Trial Processes, Plea Bargaining, 2017, at 87.

[8] Id.

[9] Turner, supra note 5, at 87.

[10] Walsh, supra note 3, at 1.

[11] Id.

[12] Id.

[13] Id.

[14] Richard A. Oppel Jr., Sentencing Shift Gives New Leverage to Prosecutors, The New York Times (Sept. 25, 2011), http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html

[15] Id.

[16] Id.

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12/11/2017

EB-5 “Cash-for-Visa” Investors Sue Casino Project Linked to Former Senator Harry Reid

According to the Los Angeles Times, “[s]ixty Chinese investors,” who participated in the EB-5 Immigrant Investor Program, have sued the developers and managers behind the SLS Las Vegas Hotel & Casino for failure to deliver on “promised green cards.”  According to the investors’ lawsuit, the hotel redevelopment project has “not turned a profit from day one and is currently on the verge of bankruptcy.”  “To make matter[s] worse,” the lawsuit continues, “the SLS Hotel[’s] revenue was less than 50% of what was projected so the project has not created sufficient jobs to allow all investors . . . to get green cards.”

The exaggeration of job-creation estimates and misleading advertising to foreign nationals is hardly unique to the SLS Casino.  News of the lawsuit follows the opening of two other prominent EB-5 cases.  Last week, the Securities & Exchange Commission filed a fraud lawsuit against an immigration lawyer and his firm for failing to disclose to clients that the firm was receiving substantial commissions on EB-5 transactions—“at least $1.6 million . . . from no less than six regional centers[.]”  Also, in late November, The Washington Times reported that a group of thirty-two Chinese investors had filed suit against outgoing-Virginia Governor Terry McAuliffe, and his former business partners behind GreenTech Automotive, for perpetrating a “$120 million scam.”  Just like the SLS Casino, GreenTech failed to create promised jobs, leaving immigrant investors to face revocation of their visas and possible deportation.

Entirely absent from the Los Angeles Times’s report, however, is the crony connection between the casino project and former U.S. Senator Harry Reid.  In December 2013, CoA Institute filed a request for investigation with the Senate Select Committee on Ethics after learning that Reid contacted officials at the U.S. Citizenship and Immigration Services—including then-Director Alejandro Mayorkas—in an attempt to influence and expedite the approval of EB-5 visa applications that had been flagged for “suspicious financial activity.”  The Senate Ethics Committee ignored CoA Institute’s request, claiming that it never received a copy despite evidence to the contrary.  And the motivation for Reid’s intervention?  His son, Rory Reid, and Rory’s law firm, Lionel, Sawyer & Collins P.C., were legal counsel to the SLS Casino, which itself was a major contributor to the Democratic Party and its candidates.

CoA Institute’s concerns about the SLS Casino and Senator Reid’s inappropriate intervention were confirmed in March 2015 when the Department of Homeland Security Inspector General released a report detailing the discomfort of career staff with the favoritism toward Senator Reid.  In response, a defiant Reid dismissed agency whistleblowers who had a problem with his lobbying as a “bunch of whiners.”  “If I had to do it over again, I would . . . [and] I would probably be stronger than I was,” he claimed.

Such rampant abuse and blatant politicization in the administration of the EB-5 program is one reason why CoA Institute has called for the end of the “cash-for-visa” regime all together.  Too many politicians have hijacked the system to enrich themselves and others close to them.  Such preferential treatment skews the marketplace and unfairly results in American taxpayers underwriting speculative business ventures that only profit so long as they have advantageous political connections.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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12/7/2017

Inside NOAA’s Secret Staff Newsletter

Imagine being a New England fisherman.  You’re subject to complex and burdensome regulation, and the federal government isn’t exactly helping to keep your way of life afloat.  In fact, its officials have worked increasingly to limit your ability to catch fish and to impose onerous costs on your continued livelihood.  Take, for example, the legally dubious requirement that groundfish sector members pay up to $700 per day to have “at-sea monitors” ride their boats and watch them fish—a scheme that could put 60% of small-scale fishermen out of business.  Consider also the efforts underway to expand industry-funded monitoring to all other regional fisheries.

If oppressive regulation weren’t enough, now picture these same officials publishing a secret internal newsletter that describes their dealings with you and your fellow fishermen in less-than-flattering terms.  Sadly, this isn’t a hypothetical situation.  According to records obtained by Cause of Action Institute (“CoA Institute”) from whistleblowers and under the Freedom of Information Act (“FOIA”), National Oceanic and Atmospheric Administration (“NOAA”) employees in the Greater Atlantic Regional Fisheries Office have long circulated a paper that often contains their candid feelings towards the fishermen with whom they are supposed to collaborate.

In one article, dated June 29, 2010, Port Agent Victor Vecchio, who works in the “Stakeholder Engagement Division,” described fishermen at a “groundfish outreach meeting” as spreading “various conspiracy theories,” at least until they “ran out of steam (or vodka . . . or whatever).”

Figure 1: Vic Vecchio, “Groundfish Outreach Meeting–Montauk, NY 6/29/2010,” Fathoms (July 2, 2010)

In response to an October 17, 2017 FOIA request, the National Oceanic and Atmospheric Administration released a complete copy of its April 1-15, 2017 issue of Fathoms, which was heavily redacted to “protect” confidential commercial information.  The range of topics covered in the paper include news about enforcement actions, in-season events (such as the opening of the recreational fishery), the impact of weather patterns on fishing activity, and even scientific developments.  Much of this appears benign and, indeed, informative.  But, as expected, the issue also discusses the industry’s frustration with planned regulatory actions.  The entire content of that article was conspicuously redacted.

In addition to filling a follow-up request for all issues of Fathoms from December 2015 to the present, CoA Institute has filed an administrative appeal challenging NOAA’s heavy-handed redactions.  Exemption 4, which protects confidential commercial information, does not typically apply to government-generated information.  More importantly, the sort of information contained in Fathoms could hardly be described as “confidential” because it would neither impair NOAA’s ability to obtain information from fishermen in the future nor cause a competitive disadvantage to any part of the fishing industry.

It seems instead that the National Oceanic and Atmospheric Administration is hiding behind an exemption designed to protect businesses in order to actually keep secret its criticism of businesses.  CoA Institute’s staff attorneys have spoken to a number of fishermen who are completely unaware of the existence of Fathoms.  Given the derision they likely receive in its pages, they are unlikely to be too pleased by efforts from the National Oceanic and Atmospheric Administration to block disclosure.

NOAA’s shenanigans don’t end there.  Another record disclosed to CoA Institute suggests that there’s a second internal digest—Dock Buzz—that could similarly provide insight into the government’s relationship with the New England fishing industry.  CoA Institute also continues to investigate NOAA’s likely violation of federal records management laws in failing to preserve employee Google Chat/Google Hangout records.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

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12/7/2017

The Unintended Consequences of Mandatory Minimums

This blog post will re-examine the Sentencing Reform and Corrections Act (SRCA) and focus on mandatory minimums. For the purposes of this blog post, “mandatory minimums” refers to “when a person convicted of a crime must be imprisoned for a minimum term, as opposed to leaving the length of punishment up to judges.”[1] “Mandatory minimum sentencing forces judges to deliver fixed sentences to individuals convicted of a crime, regardless of culpability or other mitigating factors.”[2]

Although originally intended for violent offenders, mandatory minimums now impact non-violent offenders as well.[3] Mandatory minimums are often excessive and unjust, but this is not new.  In 1994, Congress created a “safety valve” for those offenders “who most warrant proportionally lower sentences” and “are least culpable”.[4] The safety valve allows federal judges to go below an otherwise applicable mandatory minimum sentence in low-level drug cases (“essentially non-violent, first time offenders.”)[5] If signed into law, the SRCA will go beyond the 1994 safety valve and reduce penalties for those who are non-violent repeat offenders. Further, under SRCA, federal judges will also gain discretion in the cases of low-level offenders below the 10-year mandatory minimum, and in sentencing those individuals who possess a firearm illegally, provided that the firearm was not brandished or discharged in relation to a crime of violence or drug trafficking.[6]

Earlier this year, Attorney General Jeff Sessions, released a memorandum on sentencing guidelines that is inconsistent with the goals of the 1994 safety valve and the proposed SRCA. These sentencing guidelines instruct federal prosecutors to “charge and pursue the most serious readily provable offense”—claiming that this method “affirms…responsibility to enforce the law, is moral and just, and produces consistency.”[7] In the memorandum, Sessions goes on to say, “the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences”[8]

Despite the influence of the Sessions memo, some of the federal judges (who enforce these mandatory minimums) are speaking out about the grave injustice mandatory minimums are creating. In an interview with Rachel Martin of NPR, Federal Judge Mark Bennett addressed the “consistency claim” suggested by Sessions’ memo by saying “mandatory minimums support unwarranted uniformity by treating everyone alike even though their situations are dramatically different.”[9] In the same interview, Bennett said “mandatory minimums are so incredibly harsh and they’re triggered by such low levels of drugs that they snare at the non-violent, low-level addicts…”[10] According to Judge Bennett, about 80% of the cases involving mandatory minimums are unfair.[11]

One case where Judge Bennett felt the mandatory minimum was too harsh involved 28-year-old Mark Paul Weller. In 2015, Judge Bennett issued a ten-year sentence in response to Mr. Weller’s guilty plea to two counts of distributing methamphetamine (“meth”) in his home town.[12] While Weller did have a brief criminal history, he had made significant efforts to improve his life.[13] Unfortunately, with an unexpected, emotional life event, he turned to drugs and alcohol.[14] This downward spiral led Weller to eventually sell meth.[15] Over the course of eight months, Weller had sold 2.5 kilograms of meth across state lines.[16] Weller had traded meth for his sister’s rent, a used car, gas money, and even an unregistered SKS rifle.[17] The unregistered rifle was still in the car when he was pulled over with 223 grams of meth.[18]

“Weller was charged with conspiracy to possess with intent to distribute and to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and distributing 50 grams or more of a methamphetamine mixture which contained 5 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).”[19]

Because of Weller’s guilty plea to these charges, his mandatory minimum established by Congress was 10 years. Sadly, his entire sentence involved only the calculation of the following factors: victim impact, criminal history, cost of imprisonment, and the guideline sentence. The answers to this calculation were as follows:  no identifiable victim, minimal criminal history, $2,440.97 per month of imprisonment, and a suggested sentence of 151-188 months.

After sentencing Weller to 120 months, Bennett considered the result of this punishment: “one more nonviolent offender packed into an overcrowded prison; another $300,000 in government money spent.” “I would have given him a year in rehab if I could…How does 10 years make anything better? What good are we doing?” Judge Bennett noted, there were many mitigating factors in Mr. Weller’s case, like neglect and abuse by his mother, addiction, and remorse. Yet, even after consideration of those mitigating factors, he was forced to give Mr. Weller the 10-year sentence. Judge Bennett had absolutely no power to shorten or change the sentence type, i.e.: rehab instead of prison.[20], [21]

If passed, SRCA would scale back police and prosecutor power by restoring the use of judicial discretion.

Katie Parr is a law clerk at Cause of Action Institute.

 

[1] U.S. Legal, https://definitions.uslegal.com/m/mandatory-minimum-sentencing/

[2] See Id.

[3] See 4, Erik Luna, Reforming Criminal Justice, Punishment, Incarceration and Release, Mandatory Minimums, 2017, at 126.

[4] Id. at 122.

[5] Id.

[6] Sentencing Reform and Corrections Act of 2017, S.1917, 115th Cong. (1st Sess. 2017)

[7]  Memorandum from Jefferson B. Sessions, Att’y Gem., U.S. Dep’t of Justice, to All Federal Prosecutors, Department Charging and Sentencing Policy 1 (May 10, 2017).

[8] Id.

[9] A Federal Judge Says Mandatory Minimums Don’t Fit The Crime, Rachel Martin, NPR (June 1, 2017), https://www.npr.org/2017/06/01/531004316/a-federal-judge-says-mandatory-minimum-sentences-often-dont-fit-the-crime

[10] Id.

[11] Mallory Simon, Sara Sidner, The judge who says he’s part of the gravest injustice in America, CNN, updated: (June 3, 2017).

[12] Against His Better Judgment, Eli Saslow, The Washington Post (June 6, 2017) http://www.washingtonpost.com/sf/national/2015/06/06/against-his-better-judgment/?utm_term=.0adf2f2f412d

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Weller v. United States of America, No. CR-14-4059-1-MWB, 2015 U.S. Dist.

[20] See Luna supra, note 12 at 2.

[21] In addition to unfair sentencing, mandatory minimums may also help to maintain job security for prison guards. Some prison guard unions have sponsored and lobbied for harsher sentencing laws. supra note 3 at 131, at 1.

 

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12/6/2017

SCOTUS Oral Arguments Rundown: Marinello v. United States

Today the Supreme Court heard argument in Marinello v. United States No. 16-1144.  As we’ve noted before here and at the Federalist Society blog this case considers what level of knowledge a tax payer has to have to be subject to the omnibus felony penalties of 26 U.S.C. § 7212(a) .  Petitioner (Marinello) was represented by Matthew S. Hellman, Esq. and the government by Robert Parker.  From my perch, the Court showed enormous skepticism towards the Government’s position that virtually any act or omission, no matter how slight, could subject one to felony conviction, even though the particular tax code penalties for those actions are misdemeanors.  Justice Sottomayor, an active questioner in this case, seemed open to the view that the Government’s case was overcriminalizing acts that Congress had set out lesser penalties for but she seemed equally hesitant to adopt Petitioner’s solution-there can be no “corrupt” obstruction without knowledge by the Defendant that there is an IRS investigation.  She and Justice Gorsuch teamed up to offer Petitioner another way out, that there must be some affirmative interaction with the IRS.  Mr. Hellman appeared to resist this at first but, upon reflection, and most clearly in rebuttal, stated such a ruling would be acceptable (while continuing to press Petitioner’s view).

The Justices, including Justice Kagan, seemed troubled by the Petitioner’s proposed “fix” of the Government’s overreach on the statute because they could not square it with the text of Section 7212(a).  Even so, Justice Kagan, unprompted, called the statute “ungodly borad.”  Justices Breyer, Alito and Roberts, pressed the Government on the danger of common behaviors, such as using cash, that could become felonies under the Government’s construction.  Justice Breyer was concerned that paying a gardener or snow shoveler in cash could be felonious.  Justice Alito posited that a lower price for services if cash was paid is “known” to be for the purposes of not reporting income, and Justice Kagan agreed.  (This universal interpretation among the Justices is belied by what a small business owner once told me “Cash don’t bounce.”).  Justice Gorsuch took issue with the IRS position that it is a “brooding omnipresence” always collecting taxes and so a taxpayer should know throwing out receipts or keeping sloppy records will, as Justice Alito noted “impede” the IRS in administering the tax code.

Mr. Parker for the Government attempted to convince the Justices that the IRS and the Government were circumspect in the use of the omnibus provision.  Justice Kagan pounced.  Attorney General Sessions has famously issued a directive that the Justice Department charge the highest crime, with the most penalties possible in every case.  Mr. Parker’s attempt to lean on prosecutorial discretion was undermined as he had to admit the Justice Department policy to both Justices Kagan and Roberts who were concerned about it and obviously eager to make sure that policy was in the record and admitted by the Government.  Justice Ginsberg, whose late husband, Martin was a tax Professor at Georgetown, worried that any code violation could be charged as being done corruptly and thus subject to the extra three-year penalty and felony conviction.  Justices Gorsuch posited that the statutory language seemed to point to having to “corruptly” impede something other than just make the IRS’s job harder somewhere someday.  Justice Breyer insisted the Government agree with his definition of the mens rea requirement, which Mr. Parker eventually gamely did.

Upon rebuttal Petitioner made clear his position that any cabining of the statute the Court arrived at that recognized Mr. Marinello’s actions did not fall within the statute would be acceptable to Petitioner.  He and Justice Gorsuch agreed that “a win’s a win.”  Having picked up the signal from the Chief and Justice Kagan, Mr. Hellman finished noting that whether not giving everything to your accountant, using cash or keeping meticulous records would be criminalized rested on prosecutorial discretion that was obviated by the Justice Department’s “charge the highest crime” mandate.

At least from oral argument it appears the Government’s overbroad interpretation of the statute and its play for unrestrained prosecutorial power regarding it, is likely to doom its case despite a well-argued defense of that policy.  It also appears that the bright line rule that Marinello sought (and that we also pressed in our amicus) does not have the full support of the Court.  Nonetheless, today in this case it was a good day to be the Petitioner.

To learn more about this case, watch the short SCOTUSbrief video below, via The Federalist Society

John J. Vecchione is president and CEO at Cause of Action Institute, amicus

 

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11/29/2017

Inaccessible Criminal Codes and Their Domino Effects

On October 4, 2017, the Sentencing Reform and Corrections Act of 2017 (“SRCA”) was reintroduced in the Senate with bipartisan support. A version of the bill was first introduced in the Senate in October of 2015, but never received a vote. If signed into law, SRCA would reduce and restrict enhanced penalties for non-violent repeat drug offenders and eliminate the so-called “three-strike” mandatory life provision. SRCA also would apply to pending cases, “where the offense was committed before the date of enactment of this Act,” if a sentence has not been imposed as of the date of enactment,[1] and, would apply to past cases where, before the date of enactment, the defendant “was convicted of an offense for which the penalty is amended…and was sentenced to a term of imprisonment for the offense.”[2] Imprisonment terms may be reduced only if, “the defendant has not been convicted of any serious violent felony, and the sentencing court, after considering the nature and seriousness of the danger to any person, the community, or any crime victims, and the post sentencing conduct of the defendant, finds a reduction is consistent with SRCA and its amendments.”[3] This bill would also provide judicial discretion in the sentencing of certain low-level offenders below the 10-year mandatory minimum.[4]

The Sentencing Reform and Corrections Act is just the beginning of a much-needed conversation regarding reform of the criminal justice system. This post, the first in a series of posts on criminal justice reform, will focus on overcriminalization. For the purposes of this blog post, “overcriminalization,” means “the act of imposing unbalanced penalties with no relation to the gravity of the offense committed or the culpability of the wrong doer. It is the imposition of excessive punishment or sentences without adequate justification.”[5]

Over the past forty years, America has seen a dramatic increase in duplicative federal criminal laws.[6] While many have sought to enumerate federal crimes, the exact count remains unknown.[7] One estimate suggests that there are more than 4,000 federal criminal statutes.[8] Many of these statutes, include mandatory minimums.[9] With the use of mandatory minimums on the rise, the federal prison population has increased tenfold and the average federal sentence more than doubled since 1980.[10] The effects of overcriminalization do not end with the criminal code and excessive mandatory minimums; as many as 300,000 regulatory offenses now have criminal penalties that include prison time.[11]

If SRCA is signed into law, then the Attorney General will be required to submit a comprehensive list of “all criminal statutory offenses” to Congress, within one year.[12] Such a list will be the first of many tools available to begin reining in the ever-expanding criminal code and regulatory offenses.

Overcriminalization does not just affect those who end up behind bars, but also those who are unreasonably prosecuted. A few examples:

  • Bobby Unser, retired racecar driver was prosecuted by federal authorities for driving his snowmobile on protected federal land. Unser and a friend got lost during a snowstorm and were seeking shelter or assistance.[13]
  • In a Ft. Lauderdale park, members of a Christian outreach group were arrested and prosecuted for feeding the homeless. Local rules restricted food sharing.[14]
  • Christian Stanfield, who suffers from ADHD and was a victim of extreme bullying at South Fayette High School, PA, was charged with disorderly conduct under a wiretapping statute, because he recorded the abuse and went to school officials. Charges were eventually dropped.[15]

As these examples show, current application of criminal statutes reaches even the most innocent and sympathetic of “offenders.” Surely the statutes that produced these prosecutions were not intended to criminalize self-protection or charitable acts, and yet they did.[16],[17]

Overcriminalization needs to be stopped and reversed. Legislation like the Sentencing Reform and Corrections Act is a good first step.

Katie Parr is law clerk at Cause of Action Institute.

[1] Sentencing Reform and Corrections Act of 2017, S.1917, 115th Cong. (1st Sess. 2017)

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Legal, https://definitions.uslegal.com/o/over-criminalization/

[6] Cato Institute, Cato Handbook for Policymakers, Chapter 17, Overcriminalization, 8th ed. 2017.

[7] See Ilya Shapiro, Not Everything Can Be a Federal Crime, Cato Institute (March 8, 2012), https://www.cato.org/blog/not-everything-can-be-federal-crime

[8] Overcriminalization, Right on Crime, http://rightoncrime.com/category/priority-issues/overcriminalization/

[9] FAMM, What are Mandatory Minimums?, http://famm.org/wp-content/uploads/2013/08/Chart-All-Fed-MMs-NW.pdf

[10] See 4, Erik Luna, Reforming Criminal Justice, Punishment, Incarceration and Release, Mandatory Minimums, 2017, at 137.

[11] Supra note 6 at 1.

[12] Supra note 1, at 1.

[13] Cato, supra note 4 at 1.

[14] Id.

[15] Sasha Goldstein, Criminal charge dropped against Pennsylvania bullying victim with learning disability who recorded his abusers, New York Daily News (April 14, 2014), http://www.nydailynews.com/news/national/charge-dropped-penn-bullying-victim-recorded-abusers-article-1.1760448

[16] Luna, supra note 5 at 133.

[17] With overcriminalization on the rise, the potential for undercriminalization may also rise. As Douglas Husak put it, “some conduct that should not incur penal liability will be subject to it, and some conduct that should incur penal liability will not be subject to it.” 1, Douglas Husak, Reforming Criminal Justice, Introduction and Criminalization, Overcriminalization, 2017, at 28.

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11/27/2017

Investigation Update: EPA Employees’ Use of an Encrypted Messaging App to Thwart Transparency and Fight the White House

Shortly after President Trump took office, Politico reported that a small group of career employees at the Environmental Protection Agency (“EPA”)—“numbering less than a dozen”—were using an encrypted messaging application, called “Signal,” to discuss ways in which to prevent incoming political appointees from implementing the Trump Administration’s policy agenda, which may violate the Federal Records Act.  These employees sought to form a sort of “opposition network” to combat any shift in the EPA’s mission and to preserve the “integrity” of “objfedective” scientific data collected for years by the agency.

The use of Signal at the EPA mirrored reports about the use of electronic messaging platforms at other agencies, including the State Department and the Department of Labor.  But the EPA seemed to present a particularly potent site for the fermentation of political opposition among the civil service bureaucracy.  As reported by Reuters, for example, “[o]ver 400 former EPA staff members” wrote an open letter to the U.S. Senate, asking that former Oklahoma Attorney General Scott Pruitt’s nomination as Administrator be rejected, and employees in the EPA’s Chicago regional office held a joint protest against Pruitt with the Sierra Club.  Such resistance, as our investigative findings suggested, has yet to dissipate.

* * *

Cause of Action Institute (“CoA Institute”) opened its investigation into the use of Signal following Politico’s report.  We were concerned that Signal might have been used to conceal internal agency communications from oversight and that the EPA had failed to meet its legal obligations under the Freedom of Information Act (“FOIA”) and the Federal Records Act to preserve records of official government business created or obtained on Signal.  The EPA’s less-than-sterling reputation for managing electronic records likely inspired the House of Representatives to seek similar clarification from the EPA Inspector General on the Signal scandal.

In our view, to the extent intra-agency Signal correspondence pertained to employees’ plans, in their official capacities, to fight the White House on policy issues, those records were governed by the FOIA and the Federal Records Act, even if created or received on private devices.  Applicable guidance from the National Archives and Records Administration (“NARA”) on electronic records states as much.  Although some have argued that Signal could have been used in the employees’ personal capacity or “off the record,” such claims rest on “murky legal ground.”  At least to the extent employees used Signal on EPA devices, there should have been some mechanism in place to preserve messages until agency authorities could determine whether federal records laws applied.  Such a mechanism was particularly important given the difficulty of recovering encrypted messages after deletion.

* * *

To date, CoA Institute’s investigation has unearthed previously undisclosed information about the Signal scandal and the EPA’s efforts to address allegations of legal wrongdoing.  In response to our first FOIA lawsuit, the EPA acknowledged that there was an “open law enforcement” investigation and, therefore, many of the records at issue would be withheld in full.  The EPA eventually changed its position on this matter and released a number of partially-redacted records.  Those records corroborate the alarming facts reported in the media and reveal much more.

For example, the EPA Office of Inspector General apparently opened its official investigation into the use of Signal only after reading the Washington Times report on CoA Institute’s FOIA efforts.  As Assistant Inspector General Patrick Sullivan noted:

Figure 1: February 3, 2017 E-mail from Patrick Sullivan to Arthur Elkins et al.

An unidentified special agent then explained how an official “hotline complaint” would be initiated, but only after consulting with IT staff.

Figure 2: February 3, 2017 E-mail from Unidentified Special Agent

The EPA’s administrative offices appear to have been alerted to the Signal scandal before the Inspector General, and only because of the efforts of President Trump’s political appointees.  David Schnare almost immediately highlighted the need for a high-level response.

Figure 3: February 2, 2017 E-mail from David Schnare

Mr. Schnare subsequently resigned from the EPA in March 2017, citing difficulties with “antagonistic” career staff opposed to President Trump’s policy agenda.

The next day, again in response to the Washington Times, another Trump-appointed advisor, former State Senator Donald Benton, described the media reports as “disturbing if true,” and wondered whether the EPA could detect whether Signal had been improperly downloaded on any devices. (Senator Benton also left the EPA following alleged clashes with Administrator Pruitt.)

Figure 4: February 3, 2017 E-mail from Donald Benton

Steven Fine, the EPA’s Acting Assistant Administrator of the Office of Environmental Information and Acting Chief Information Officer, assured Senator Benton that the agency could not detect “app downloads,” but could, in fact, scan devices for already-installed programs.

Figure 5: February 3, 2017 E-mail from Steven Fine

The EPA’s ability to “scan” for the installation of Signal was also revealed during summary judgment briefing against Judicial Watch in unrelated FOIA litigation.  A declarant for the EPA described a software tool known as “Mobile Device Management” or “MDM,” which can compile a master report that identifies the applications running on most EPA-furnished equipment.  Indeed, Mr. Fine likely wrote to Senator Benton with knowledge of the Inspector General’s pending request for “assistance in identifying whether certain mobile apps, including Signal, had been downloaded” to EPA devices.

Figure 6: February 3, 2017 E-mail from Patrick Sullivan

* * *

Figure 7: February 3, 2017 E-mail from Rena Key

Interestingly, an unidentified special agent in the Office of the Inspector General recognized the limitations in retrieving Signal messages, regardless of the agency’s ability to use MDM to identify the relevant devices on which the application was installed.

Figure 8: February 3, 2017 E-mail from Unidentified Special Agent

An EPA contractor eventually generated the requested report in the MDM devices and transmitted it to the Office of Environmental Information.  CoA Institute has a pending FOIA request for a copy of the MDM report.

Records released to CoA Institute also raise or confirm other concerning facts:

  • Based on a list of approved “Terms of Service” agreements, EPA employees never were, and still are not, authorized to download and use Signal. Although various social medial tools are approved for use, Signal is not one of them.
  • Internal agency guidance leaves individual employees with total discretion in determining whether text or instant messages need to be forwarded to an official e-mail address and agency recordkeeping system. Although the guidance highlights the differences between “substantive (or non-transitory)” records and those that need not be retained, there is no clear system of oversight to prevent the unauthorized deletion of electronic records.
  • On February 22, 2017, NARA wrote to the EPA to request an update on the records management issues involved in the Signal scandal. The EPA responded a month later, explaining that its investigation was still ongoing and a final report would be forthcoming.  The agency referred to its existing list of approved “Terms of Service” agreements, as well as its efforts to remind employees of their individual responsibility to preserve certain records.  No specific mention was made of the use of Signal.

As additional information becomes available, we will provide further analysis on the EPA’s investigation into the unauthorized use of Signal.

Selected records from CoA Institute’s FOIA production, excepts of which have been used above, can be accessed here.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

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