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April 11, 2005

The human face of retroactivity

I receive an enormous amount of e-mail and snail mail from prisoners and defendants and their families.  I typically cannot find time to read most of this correspondence, let alone respond thoughtfully.  But this mail serves as a constant and valuable reminder of the human face of all the issues covered on this blog.

This weekend I received a prisoner letter via e-mail that was particularly compelling in its discussion of the human side of retroactivity.  I obtained permission  from the author to share this letter, and it can be downloaded below.  I most recently posted here about the doctrine of retroactivity, but this letter spotlights the humanity of retroactivity.

Download prisoner_retroactivity_plea.doc

April 11, 2005 at 12:24 AM | Permalink


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I'm glad you were granted permission to post the letter. It is a good reminder to all of us lawyers, since we so often tend to discuss these legal issues in terms somewhat distanced from that human face. Thanks.

Posted by: Tom Lincoln | Apr 11, 2005 2:42:05 AM

The sad fact is that, unless we get some relief through due process, folks in prison like the author of the letter will face the same "illegal" sentence even if they could get back to the court. As we have seen in the Circuits with the onerous plain error analysis, many of these folks would not get a day in court even if Booker was applied retroactively. For example, if the author of the letter was sentenced in the Fifth or Eleventh Circuits, unless the original sentencing judge made a clear mention in the record casting aspersions on the guidelines, he would not get any relief from his "illegal" sentence. I do not say this as a criticism of the author of the letter, I only note this to point out that the second half of Booker and an onerous plain error analysis yank the rug out from underneath the feet of most folks seeking relief: under direct review or under a retroactive application of Booker.

Posted by: doug | Apr 11, 2005 8:21:27 AM

Thanks for posting this letter. From our previous emails to one another, you might remember my fiance is in the same situation, even at the same facility. Just the exposure alone on your blog makes a difference!

Posted by: Tara | Apr 11, 2005 12:30:48 PM

Mr. Salimonu's frustration is understandable--he committed a crime that happens to carry with it a lengthy sentence, and the Supreme Court has suddenly said that part of his process was unconstitutional--but his anger is misplaced. He champions the Supreme Court for Booker, but then vilifies the courts of appeals for not making it retroactive to convicts on collateral review. Salimonu acts as if all the appellate retroactivity decisions are based merely on Schriro (although it’s pretty damn persuasive precedent), when in fact they have the full history of Supreme Court retroactivity precedent on their side. In fact, no new constitutional rule has ever been held retroactive on collateral review. Salimonu strains to say that Booker is not a new rule, yet fails to explain why, if this is the case, our Platonic friends at the Supreme Court waited two decades to declare the guidelines unconstitutional. Either they didn't care enough to get around to it for all that time, or it's a rule they just now came up with. Either way, it's the Supreme Court's fault, and the courts of appeals are simply dealing with that Court's sudden Sixth Amendment transformation by applying retroactivity precedent the same way they do every time the Supreme Court decides post-hoc that it's going to create a new constitutional right. If the Supreme Court wants to change course on retroactivity like it has on the Sixth Amendment, then it should be the institution to do it. We shouldn't expect the courts of appeals to ignore precedent and suddenly give the green light to tens of thousands of re-sentencings just because some prisoners have tear-jerking stories. I'm sure many convicts are sad every time the Supreme Court comes up with a new constitutional right that it refuses to apply retroactively. But that’s how they’ve always done it, and that’s the precedential framework within which the courts of appeals are acting.

Moreover, Salimonu overestimates the powers of the courts of appeals in other ways as well. The tenor of his letter strongly suggests that he thinks that if only Booker were applied retroactively, he’d be getting out of jail at a 34 guidelines range (appx. 150+ months) rather than the 38 range (appx. 235+ months) he currently languishes under. Of course, it’s not that simple. Nothing in his letter suggests that he didn’t deserve the leadership enhancement, and thus nothing suggests that a judge on re-sentencing would reduce rather than increase Salimonu’s sentence in exercising his newfound discretion. In the end, my reading of Salimonu is that his biggest beef is that he thinks our Congress punishes drug crimes too heavily, a sentiment that many of us agree with, but one that the lower courts (and even our august Supreme Court) are bound to uphold.

Salimonu may put a human face on retroactivity, but that’s no justification for the courts of appeals to ignore binding precedent or the criminal punishment scheme set out by Congress.

Posted by: Jake | Apr 11, 2005 9:05:33 PM

"It has long been said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest one – Is this treatment worthy of a nation as great as America?"

While in jail for a crime he does not deny committing, Mr. Salimonu has been afforded the opportunity to become widely read in classics and world literature and to earn a prestigious MBA. He apparently also has ready access to the Internet, as evidenced by his intimate familiarity with this blog. While I sympathize with his plight and would certainly not want to trade places, I think his denigration of our corrective system is unwarranted. It doesn't exactly sound like Stalin's gulag to me . . .

Posted by: Christy | Apr 12, 2005 1:13:21 AM

As an Ex-Con, it is said that "They can lock up your body, but not your mind." Well ... thats partially true. I took extended courses from UNC, took behavioral modification programs, studied Yoga and Leadership Development. But, after you "get it" you remain locked up. The guy on the bunk next to you that did nothing with his time, will get out on his release day, as I did mine. Why not come up with an SAT score for Criminality, test during intake, test periodically while attending classes and peer-group sessions until the guy or gal test results show enough improvement to get him or her the heck out? Follow that up, from day-one back in the Real World, with some community support and guidance, and then encourage the ex-felon to vote? No one comes into this world born to commit a crime. Criminality is acquired and can become un-acquired.

Then Prison is no long "Prison". It becomes an arm of the Educational System. That would provide some much needed employment for all of the Sociology students, right? :) I screwed up, made a poor decision, admitted my guilt and took my lumps. But if you have to keep some one more than 10 years, it would be a kindness to just shoot them.

My answer to the Death Penalty?? Make it voluntary. The result may surprise you. :)

Posted by: Rickey Moore | Feb 22, 2008 12:22:21 AM

Wow, I just read that letter. First thing right off, within "treatment" and specifically "Assertiveness Training", which I guess he didn't get in his European Studies, "Should" is considered "Aggressive". The verb form is "Shoulding". It says "I demand you do" when "I think it would be better if..." is an expressed point of view for you to pick up on or not. The decision is left to you to make, instead of being TOLD what to do by someone who has adopted for himself the permission to do so, whether you consented or not. That equals abuse. I'm your house expert on that subject, as I am guilty of having been abusive. Guilty enough to goto prison. I forever gladly remain a student.

I will use "But", with your permission, as it is your blog! But, that which is proven to be inherently "wrong" (and maybe abusive?) for a sentence to not take into considerations ALL of the elements of the crime, "would it not be better" to redress abusive sentencing with Just Sentencing?? For everyone and anyone? Otherwise, the abuser becomes abused and the cycle of crime ticks on. It's the magic moment when the "Victim" is created, as well as the "Abuser".

At that point, does the Law itself become abused by those in Power and Authority that do not accept full Responsibility, which is always attendant? Me, the Student of Abuse thinks so. Denial is not a river in Egypt. :) But it appears that Denial, Anger and Bargaining are stuck into some loop from Hell here. Forget getting to the stages of Depression and Acceptance. Just for ducks, put this to your students and see what they say. Inquiring minds want to know!

I've seen a man die from Hopelessness, in prison. He willed himself to die, ignoring his diabetes and eating all the junk food he could buy with the money his family sent him, and who he refused to ever see again. He stuffed his face, got to where he was walking into walls and finally rolled out of his bunk and fell on the floor dead. He told me his story. He said he only sold cocaine. His neighbor, a Deputy, found a bag of Meth in the nice family boat he owned in his own driveway. He went to prison, after admitting he sold drugs, but not Meth, and the boat went to Sheriff's auction and wound up in the Deputies driveway. He went down for 20 years. He'd giggle and then take another nap. He said he'd never do that time and I guess he meant it. There was no way for him to work hard and reduce his sentence. Zip. Not one chance at redemption or some sort of judicial review to affirm his sentence. That's Hard Time.

I agree with the guy that wrote the letter where he says to the effect that you can do the time you are supposed to do, but to do time that isn't legal is to be stuck in cycle; "Helpless, Hopeless and Overwhelmed". That's not a good place to be stuck intellectually while in prison. It would be better if (no shoulding!) it were seen as abusive and as Nancy said, someone "Just Say No!". I hope you can effectively raise some points, and just tell all that it's what it is, abusive. Tell 'em an "Expert on the subject" told you. Feel free to hire me, I come pretty cheap. :)

Posted by: Rickey Moore | Feb 22, 2008 1:16:37 AM

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