HOPE IN THE LOSS OF LIFE, LIBERTY, & PROPERTY
I apologize for permitting so much time to lapse since my last piece. As you know I am incarcerated. The prison has been running on lockdown and “modified lockdown” for many months now. That means cell confinement for most of the day–on many occasions all day–with restrictions on access to the law library, religious service, recreation, chow hall or any place beyond the cell-block. It means existing in constant uncertainty; never knowing when your cell door is going to be opened, and never knowing when you’ll be ordered back inside if ever it does. All operations are on a whim’s notice.
It’s taxing, non-provocative, and unjust to many who have done nothing wrong. After being forcibly confined to the same small space for so long it plays on the psyche, causing most to develop cabin fever-like symptoms. Or similar symptoms to razor wire sickness–first diagnosed by psychiatrist while examining Jewish prisoners in the German Nazi concentration camps during the second world war.
I have been discouraged from work, exercise, writing, reading and studying. My creativity and even my faith has been injured during these months of lockdown. On top of the usual challenges of fighting for freedom and sanity, it’s just added dejection. Once I spent 15 months straight in SHU. That’s 23 hrs a day cell time–24 hrs on weekends. (I had done no wrong. It was an administrative order till this day remains unexplained.) Yet, it was easier. I at least knew the routine patterns of each day and therefore knew how to prepare my mind and habits. But this…it has no pattern to adjust to.
Yesterday, though, some good news in law gave me some much needed reviving. There seems to be hope for those of us in the struggle. The US Supreme Court, in a 7-1 decision, (Justice Gorsuch did not weigh in.) ruled in Nelson V. Colorado, 137 S. Ct. 1249 (2017) that federal judges can no longer use uncharged crimes, acquitted charges, preponderance of evidence, relevant conduct, or anything other than what a defendant was charged and convicted of before a jury, to bolster a sentence.
This should mean new sentences in store for many who are serving enhanced time in prison for unproven conduct. Conduct that amounts to additional criminal charges, which should have been listed in the indictment if the government planned to punish the defendant for it. But instead, up until now, prosecutors had been relieved of their burden to prove to a jury that this conduct existed by relying on judges to consider them as mere sentencing factors–significant only for bolstering a defendant’s sentence behind the jury’s back, and without fore-notice to the accused, rather than including these claims with those he was tried on, and providing him the right to defend himself in front of the jury against [all] claims that affect his sentence if/when found guilty.
Uncharged conduct that is arbitrarily added by a judge after trial is over and the jury has been dismissed undermines the constitutional safeguards therein the 14th Amendment. Which includes: No person shall suffer the loss of life, liberty, or property without due process of law. And the 6th Amendment, which requires every element of the crime be found by a jury beyond a reasonable doubt–not a judge.
In the absence of criminal conduct being charged in an indictment, presented to a jury, and proven beyond a reasonable doubt, there is no conviction. And thus no penalty should arise. If so, there is a clear violation of due process. Which, finally, the High Court has overwhelmingly agreed [without exceptions] like their previous rulings on the issue.
Those of you who have read my previous pieces know that I am not serving life for drug conspiracy, but for a crime I was not charged nor convicted of. One that I emphatically continue to declare my innocence of. You also know this is not the first time the US Supreme Court has made such a ruling.
I’ve been arguing this issue since its 2000 ruling in Apprendi V. New Jersey. Its 2002 ruling in Ring V. Arizona. Its 2004 ruling in Blakely V. Washington. Its 2005 ruling in US V. Booker. Its 2010 ruling in US V. O’Brien. And since its 2013 ruling in Alleyne V. US. All of which, established in one form or another, the 6th & 14th Amendment violations represented in arbitrarily enhanced sentences.
But because none of these rulings had been made to apply retroactively to those of us who had exhausted our direct appeal remedy before their decision, we continue our incarceration despite it contravening new law. (I had not exhausted my direct appeal before the Apprendi ruling, which entitled me to the law. But the appellate court refused to hear my argument for two reasons that would later become bad law–leaving me stuck with an illegal sentence and procedurally barred from a second attempt at getting them to correct it in light of newly decided law. The first reason was, because the uncharged conduct used to enhance my sentence required a mandatory minimum life sentence, the appellate court said the Apprendi argument did not even matter. Reason two was, even if I could get around reason one, I lost my right to be heard on Apprendi because I did not “specifically” raise the claim at trial or sentencing. Meaning, since Apprendi was decided a few weeks after my trial and sentencing was over, I did not raise a claim that did not exist when I was supposed to have raised it.) Huh?? is right.
So what’s different about this most recent Nelson decision? Unlike the other rulings, it overturns US V.Watts,579 US 148 (1997) the standing authority relied upon by the government to support the imposition of arbitrarily enhanced sentences. Now I am far from an expert in law. I am actually amongst the many who are usually confused more than sure of anything. But it is my interpretation that when the Supreme Court makes a decision that overturns one of their previous decisions, it constitutes a new “substantive” rule of law. And when there is a new “substantive” rule of law, as quoted from law professors Carlos M. Vazquez and Stephen I. Vladeck when analyzing Montgomery V. Louisiana (2016) citing Teague V. Lane, prisoners (both state and federal) have a federal constitutional right retroactively to enforce new “substantive” rules of constitutional law–and they therefore have a constitutional right to collateral post conviction remedy in cases in which direct remedies are no longer available. Montgomery confirms that state and federal prisoners have a right to such collateral relief if their continued incarceration contravenes a new “substantive” rule of law.
Sounds like a happy ending? Maybe. Prayerfully my interpretation will hold true and things will turn out right this time. I’m hopeful. So much till it has cured me of my cabin fever and razor wire sickness. I am encouraged again over the long awaited moment that justice corrects itself and restores the loss of life, liberty, and property to the many it was taken from injudiciously.