By Donnie W. Bethel and Stephen A. Cooper
People of all persuasions, political parties, and philosophies have awakened to the terrible toll the crises of overcriminalization and mass incarceration have wrought on America.
Perhaps, as reported by The New York Times, Judge Raymond J. Dearie of the Federal District Court in Brooklyn has now voiced his view of this disturbing trend better than anyone else. Judge Dearie, a former prosecutor and once the United States Attorney in Brooklyn, plaintively asked: “Why this love affair in this country with lengthy incarceration, to our great embarrassment as a civilized nation?”
While not a complete answer to Judge Dearie’s plea, one definite contributing factor to the problem is terrible court opinions like the Supreme Court’s decision in Taylor v. United States, decided June 20, 2016, by a 7-1 vote.
Because of Taylor, more Americans, mostly minorities, will be exposed to federal prison cells for even more draconian periods of time than they are now. In Taylor, with the exception of (hold onto your hats) Justice Clarence Thomas, the Supreme Court gave all conscientious, sentencing-reform-minded folks – including Judge Dearie – a swift kick in the pants.
As summarized by scotusblog.com, Taylor holds: “Because the Hobbs Act criminalizes robberies and attempted robberies that affect any commerce ‘over which the U.S. has jurisdiction,’ the prosecution in a Hobbs Act robbery case satisfies the act’s commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds.”
Distilling Taylor further, The Jurist explains: “The Hobbs Act makes it a crime for a person to affect commerce, or to attempt to do so, by robbery. In an opinion by Justice Samuel Alito, the Court found that because Congress has the power to regulate the marijuana under the Commerce Clause, Congress may also regulate drug theft. ‘By targeting a drug dealer in this way, a robber necessarily affects or attempts to affect commerce over which the United States has jurisdiction.” Justice Clarence Thomas filed a dissenting opinion. He would ‘hold that the Act punishes a robbery only when the government proves that the robbery itself affected interstate commerce.’”
Respectfully, we submit that in his dissent in Taylor, Justice Thomas is the lone Justice to get it right. (And, one has to wonder if his position might have carried more weight – maybe even the day – had it had the backing of a still-alive, formidable and feisty, Justice Scalia).
In his dissent, Justice Thomas writes: “When courts construe criminal statutes” it goes without saying that, “they must be especially careful. And when a broad reading of a criminal statute would upset federalism, courts must be more careful still.”
Thomas concludes that the majority opinion “fails to identify the language in the Hobbs Act that” unequivocally evidences “Congress’ intention to reach the sorts of local, small-scale robberies that States traditionally prosecute.”
Taylor was convicted of two separate robberies of low-level marijuana dealers. The underwhelming spoils of Taylor’s crimes: three cell phones, $40, some jewelry, and a marijuana cigarette – hardly, one would think, reason to invoke federal prosecution under the Hobbs Act – with each charged Hobbs Act violation exposing Taylor to up to 20 years in federal prison (where under federal sentencing law he’ll have to serve a minimum of 85 percent of his sentence, even with credit for good behavior).
As observed by Garrett Epps in The Atlantic (“Writ of Fido: The Supreme Court looks at how robbing a drug dealer can trip the Hobbs Act’s commerce provision and bring a petty thief a lot of federal trouble,” Feb. 25, 2016), “Justice Ruth Bader Ginsburg asked if the government was reaching down in this case to arbitrarily grab hold of a minor local crime: “It’s very odd that this is a federal case. I mean, they – in fact, they took, what, a couple of cell phones, $40?”
In 1998, evaluating a similar type case on the merits, where the two robberies at issue netted only a case of beer, a carton of cigarettes and $170 in cash from two businesses, the United States Court of Appeals for the Eleventh Circuit – a Court not traditionally known for bending over backwards to advance defendants’ rights (and, in fact, true to form, did not reverse the convictions at issue), nevertheless wrote: “the Hobbs Act was intended to address offenses with a broad impact on interstate commerce, as opposed to local robberies normally prosecuted under state law, especially petty robberies or extortions.” (See United States v. Paredes, 139 F.3d 840, 844 (11th Cir. 1998)).
While it didn’t help the defendant in Parades, the Eleventh Circuit acknowledged what the United States Court of Appeals said two years earlier in United States v. Farmer, 73 F.3d 836, 843 (8th Cir. 1996): “We have no doubt that Congress, when it passed the Hobbs Act, had in mind primarily offenses with a broad impact on interstate commerce, as opposed to local robberies normally prosecuted under state law.”
Taylor guts the logic of Paredes and Farmer like yesterday’s fish and opens up a Pandora’s box of increased federal prosecutions (and incarcerations) nationally for crimes that states are more than capable of punishing without federal intervention.
Considering all the missing mothers and fathers absent from their families, and especially their children’s lives – languishing in federal jail cells long past the time that logic and reason would dictate – the Supreme Court’s decision in Taylor is not just a small step in the wrong direction, it’s a giant leap.
One can only hope that Attorney General Loretta Lynch, whose experience tackling “the over-criminalization of people of color” was touted as reason for her confirmation, will make sure that her office uses the blank check of Taylor wisely, even-handedly, and —most importantly—sparingly. We don’t need more people taking up space and scarce resources in the Federal Bureau of Prisons for stolen cell phones, trivial amounts of money, and a minuscule amount of marijuana.
About the Authors:
Donnie W. Bethel has litigated criminal cases as a prosecutor and a defense attorney for over 26 years in military courts-martial and in federal court.
Stephen A. Cooper worked as a D.C. public defender between 2003 and 2012 and as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.
