Image of Man Signing Document

Image of Man Signing Document

12 Wake Forest L. Rev. Online 66

Craig S. Lerner[1]

Executive clemency for the dead is not unknown in American history, but it is rare. In recent years, there have been several high-profile instances, emblematic of an incipient trend that figures to grow as Americans become more conscious of, and determined to rectify, past injustices perpetrated under color of law. Posthumous pardons are inevitably celebrated for repudiating past injustices and restoring faith in the legal system.

This Article views this widely praised phenomenon with skepticism. With the goal of piercing the rhetorical fog that envelops this issue, it considers the legal merits of two recent cases: the “Martinsville Seven,” who were pardoned, and George Floyd, who was not. From these examples, the Article draws cautionary lessons on the appropriate uses of pardons to exonerate the dead. In short, the benefits are generally reaped by the politicians issuing them; the costs are borne by the living individuals whose meritorious cases for pardons were never considered. A pardon is a legal remedy designed to achieve concrete objectives, such as the liberation of a wrongly convicted, excessively punished, or genuinely repentant person. Except in extraordinary circumstances, involving the most clearly proven and outrageous injustices, when the putative beneficiary is already dead, a pardon is an ill-chosen vehicle for the delivery of nebulous symbolic benefits.


On August 30, 2020, Virginia Governor Ralph Northam issued what was touted, in an accompanying press release, as “Posthumous Pardons for the ‘Martinsville Seven’ 70 Years After Unjust Executions.”[2] The document is, however, more ambiguous in what it purports directly to do, and it is even more puzzling in its broader ambitions. The governor’s pardon is, in this regard, emblematic of an incipient trend that figures to grow as Americans become more conscious of, and determined to rectify, past injustices perpetrated under color of law.

Executive clemency for the dead is not unknown in American history, but it is rare. The Department of Justice’s official policy is that it will not even consider applications for posthumous pardons.[3] In 1997, President Clinton issued the first Presidential posthumous pardon—to a black West Point graduate who was convicted of fraud.[4] President George W. Bush issued another to a Florida businessman convicted of smuggling bombers to the fledgling state of Israel.[5] After a lull of over a decade, President Trump issued four posthumous pardons: to Susan B. Anthony, boxer Jack Johnson, and two lesser known persons.[6]

Governors and state clemency boards have been more liberal with posthumous pardons, but for much of American history they were still extraordinary occurrences. In 1893, Illinois Governor Peter Altgeld issued the first such pardon in our nation’s history; the recipients were three of the labor activists convicted of setting off a bomb in Haymarket Square.[7] Over the ensuing decades, posthumous pardons became more common, with some of the most high-profile being those issued to Leo Frank in 1986,[8] John Snowden in 2001,[9] Lenny Bruce in 2003,[10] Timothy Cole in 2010,[11] John Gordon in 2011,[12] Thomas and Meeks Griffin in 2009,[13] and the “Scottsboro Boys” in 2013.[14] In just the past three years, Florida Governor Ron DeSantis pardoned the “Groveland Four” (black men convicted of raping a white woman in 1949),[15] California Governor Gavin Newsom pardoned civil rights activist Bayard Rustin (convicted of a misdemeanor vagrancy violation in 1953),[16] and Louisiana Governor John Bel Edwards pardoned Homer Plessy (the defendant in the famous case, Plessy v. Ferguson).[17]

Besides Governor Northam’s pardon of the “Martinsville Seven,” the issue was thrust most prominently into the national spotlight in October 2021, when the Texas Board of Pardons and Paroles (the “Board”) recommended a posthumous pardon of George Floyd, in connection with his 2004 drug conviction.[18] Under state law, the pardon could not take effect without the governor’s signature; and for months, Governor Greg Abbott declined to do so.[19] His silent rebuke to the Board began to generate controversy, until the Board withdrew the application in December 2021.[20] The grounds for the withdrawal were shrouded in mystery, and the Board left open the possibility of renewing its application this year.[21]

Now is an apt moment, then, to reflect upon the mounting interest in posthumous pardons. In an Atlantic essay last year, “Justice for the Dead,” the author endorsed posthumous pardons for their ability to “repudiat[e] miscarriages of justice, especially those with racial overtones . . . . At their best, they have the potential to restore faith in a judicial system in which many people have lost confidence, and to further the work of building a more just, more tolerant, and more equitable society.”[22] The project was provided academic support in a recent article in the Columbia Law Review.[23] In “The Constitution After Death,” Professor Fred Smith argued that the dead should be conceived as “legally cognizable beings of memory,” and he specifically references the value of posthumous pardons in “protect[ing] the reputational interests of the dead.”[24]

Professor Smith begins his article by drawing upon Sophocles for the proposition that “[i]t is the dead/Not the living, who make the longest demands.”[25] It is an engaging opening; nonetheless, this Article operates on the optimistic hypothesis that Greek tragedy is not a useful guidepost when determining the contours of our law. More specifically, this Article aims to treat the broader issue of posthumous pardons through a close examination of two case studies: the Martinsville Seven and George Floyd. From these examples, the Article draws cautionary lessons on the appropriate uses of pardons to exonerate the dead. In short, the benefits are generally reaped by the politicians issuing them; the costs are borne by the living individuals whose meritorious cases for pardons were never considered.

I. The Martinsville Seven

The Martinsville Seven attracted considerable publicity at the time of the crime,[26] but rapidly vanished from Virginia’s and the nation’s consciousness. Not a single law review article mentioned the case until 1996,[27] which was prompted by the publication of a book devoted to the case.[28] It is only in the past few years that the memory resurfaced, culminating in a pardon that Governor Northam announced with much fanfare, but which his successor apparently thought of so little consequence that the official government link to the document was subsequently broken.[29]

A. The Crime and Investigation

Reconstructing a crime in its immediate aftermath can be a perilous undertaking; doing so at a temporal distance of seventy years defies confident judgments. The following reconstruction of events tries to disentangle the facts known beyond peradventure with surmises of less certain probability.[30]

To begin with the certainties: On the afternoon of January 8, 1949, Ruby Stroud Floyd, a white thirty-two year old woman, walked into the predominantly black area of Martinsville, Virginia, seeking the house of a woman who owed her six dollars.[31] Several men accosted her as she asked for directions.[32] Around 7:30 that night, she knocked on the door of Mary Wade and announced that she had been raped by thirteen men.[33] According to Wade, she appeared frantic, had scratches on her arms, and her thighs were “red-rubbed.”[34] Around 8:15 p.m., Martinsville police arrived at Wade’s house and Floyd repeated her story.[35] That night, doctors examined her and found scratches on her knees, inner thighs, and buttocks, a large amount of twigs and dirt in her pubic hair, and “active, motile sperm” in vaginal smears.[36] The doctors did not discover any vaginal trauma at that time, however, and Floyd declined their recommendation to spend the night in the hospital.[37] The following morning, she checked herself into the hospital, where she spent much of the next few weeks; she was eventually diagnosed with an “‘inflammatory mass’ on the left side of her pelvis near the uterus caused by a rupture of thin-walled blood vessels.”[38]

The search for the offenders began immediately, on the evening of January 8, and concluded, except for one defendant, by dawn the following morning.[39] Police interviewed several witnesses and promptly picked up two men (Booker T. Millner and Frank Hairston, Jr.) suspected of participating in the crime.[40] Initial denials of involvement evolved within hours to signed confessions.[41] Four more men (John Clabon Taylor, James Luther Hairston, Howard Lee Hairston, and Francis DeSales Grayson) were picked up in the early hours of the morning.[42] The final confession, by Grayson, is noteworthy, as his case has figured prominently in the recent reconsideration of the case.[43] Unlike the other defendants, who were young men, Grayson was married, a U.S. Army veteran, and in his late thirties.[44] He was employed and had never been convicted of any crime.[45] According to the police report, after denying knowledge of the crime, a police detective told him that “some of the boys have told us their part in the case.”[46] After several minutes of silence, police records state that he said: “I’ll tell you the truth about it.”[47] He recounted a tale that coalesced, in almost all material respects, with what the other defendants had reportedly said: Four men (Joe Henry Hampton, Howard Hairston, Jr., Millner, and Frank Hairston) participated in an initial assault of Floyd.[48] When she tried to crawl away, three men joined the fray (Taylor, James Luther Hairston, and Grayson) and participated in a second phase of the sexual assault.[49] Hampton turned himself in on January 10.[50] Although he had had no contact with the other six over the prior forty-eight hours, he told a story that largely corroborated their collective account.[51]

The stories the seven men told included some mitigating and possibly even exonerating details. A few of the men suggested that Floyd consented,[52] which, if true, would have been a complete defense; but this seems, with full allowance for the uncertainty created by temporal distance, to be sufficiently incredible to be discounted. Some men, particularly in the first assault, pointed to their intoxication.[53] This was almost certainly true but would pose no barrier to a rape conviction then or now.[54] Finally, some men suggested that they were unable to penetrate Floyd.[55] This might be a defense to rape, but not to attempted rape, and a rape conviction would even be possible without penetration on a theory of accomplice liability.[56]

It should be emphasized that the confessions were secured through police practices that did not remotely conform to contemporary standards. None of the defendants were Mirandized, nor were any provided a lawyer until January 22.[57] That said, there is little indication that the pressure brought to bear on the suspects violated due process. The first six confessions were given in the middle of the night, with police engaging in miscellaneous “Inbau & Reid” techniques (good cop, bad cop; the cat is out of the bag; the train is leaving the station, etc.) that have been criticized but almost never result in a court holding a confession inadmissible.[58]

Legitimate questions were raised at trial, discussed below, about the reliability of the confessions.[59] Furthermore, there are also many indications that the crime triggered extraordinary passions.[60] The local jailor stated that had a lynch mob demanded the seven defendants, he would have acquiesced.[61] It is also striking that the Martinsville police chief thought it necessary to scatter the defendants to distant jails: only thus, he stated, was the risk of mob violence averted.[62]

What can we say happened on January 8, 1954? That Floyd was the victim of a sexual assault is incontestable, but by whom? It is possible that some of the defendants were not involved at all, or to the extent that they allegedly confessed, but complete confidence is not possible one way or the other. As already suggested, uncertainty about past crimes is entirely expected—a function of temporal distance. It would be the unusual case in which complete confidence about distant events is possible. The infamous Scottsboro Boys case provides a useful contrast. There, the putative victims of a sexual assault, when examined by a doctor, exhibited no injuries, nor was there even any evidence of recent sexual intercourse.[63] In the case of the Martinsville Seven, at a distance of over seventy years, we are inevitably in doubt about sundry crucial issues. Ordinarily, we would simply defer, absent compelling evidence, to the legal system’s contemporaneous judgment. This brings us to the fairness of the trials in this case.

B. The Trials

The Martinsville Seven trials can be viewed from two perspectives. When considered in the context of other criminal trials of black defendants in the pre-modern era, one understands the self-congratulatory tone taken by several Virginia public officials.[64] Indeed, compared with the trials in the Scottsboro case—an admittedly very low bar—the Martinsville Seven trials come to light as exquisitely fair.

First, each of the defendants had his own lawyer; and for some defendants, including Grayson, those lawyers were among the most skilled in the county.[65] The contrast with the Scottsboro case could not be more pronounced.[66] In addition, the judge severed the case into seven trials, thus taking steps to minimize cross-contaminating evidence.[67] The judge also cautioned the lawyers to avoid raising any racially divisive arguments, and the prosecutors apparently complied.[68] Defense lawyers filed a motion to change the venue, as a concession to the notoriety of the crime; and the judge held a hearing in which twenty-five witnesses appeared, including prominent local black citizens, several of whom testified that a fair trial was possible in Henry County.[69] The judge’s denial of the motion was not clearly wrong, even under contemporary standards.[70]

Several prosecution witnesses testified at the trial, including local individuals, police officers, medical examiners, and Floyd herself.[71] As already discussed, the evidence was not irrefutable, but it was incomparably more compelling than the flimsy evidence that produced convictions in other high-profile cases involving black defendants.[72] The defense lawyers conducted several effective cross-examinations, including of the victim herself.[73] And with respect to the police officers, defense lawyers drew attention to discrepancies and inaccuracies.[74] The defendants all took the stand in their own defense, and each repudiated his confession in some respect.[75] Finally, character witnesses took the stand for many of the defendants.[76] One would be hard-pressed to fault the defense lawyers for ineffective assistance of counsel—again, in stark contrast with the Scottsboro case.[77]

Yet if we view the Martinsville Seven trial from the perspective of 2022, the variations with modern practice are glaring. We should, however, distinguish between the respects in which those distinctions reflect legitimate differences in priorities and those differences that undermine confidence in the verdict. The brevity of the trial belongs in the former category. In the latter category, however, belong the composition of the jury and the sentence imposed. The jury pools in each case included between two and four blacks.[78] Again and again, some were excused by the judge for cause, and the remaining were peremptorily challenged by the prosecutor.[79] The result: seven all-white juries.[80] Undoubtedly, those challenges would not survive scrutiny under the modern understanding of a right to an impartial jury.[81] There is, furthermore, the sentence imposed. Rape was punishable in 1949 from five years to life in prison, or by death.[82] Of course, under the contemporary understanding of the Eighth Amendment, capital punishment is foreclosed for any crime other than homicide and possibly treason.[83] But it is anachronistic to impose our “standards of decency” in judging the constitutionality of capital punishment when imposed in prior eras.[84]

The problem is not that the jury and judge imposed a sentence that was, at law, possible. The problem is that the sentence was exclusively reserved for convicted black rapists—a fact that was brought to the attention of then Virginia Governor John S. Battle when he was considering a clemency petition.[85] White rapists, especially when the victim was black, often received lenient sentences.[86] Consider the case of Carl Burleson and Leonard Davis, two white police officers convicted of raping a black woman in Richmond in 1947.[87] Convicted of rape, they were each sentenced to seven years in prison.[88] Notwithstanding contemporaneous claims that race played no role in the trial, the sentence imposed by the jury on the Martinsville Seven fuels suspicion that the effectual truth is that race most certainly did.

The lingering question is whether any respect is owed the jury verdict and sentence. Does the composition of the jury and the sentence it imposed command us not simply to question, as an academic matter, the accuracy of the verdict but also to repudiate, as a formal legal matter, the judicial system that promulgated it?

C. The Pardon

Governor Northam answered that question with a resounding “maybe” in an eleven-paragraph pardon. The analysis below is quite critical of that pardon; the principal objections arise from defects in the reasoning and the overall sloppiness. That sloppiness is immediately apparent. After the first paragraph correctly recites the names of the seven defendants, the second paragraph jumbles the names of three defendants.[89] Even more disconcertingly, starting in paragraph three, the pardon focuses almost exclusively on one defendant: DeSales Grayson.[90] Although the names of the others are recited in paragraph seven, the legally dispositive paragraphs—in which the governor actually extends a pardon—mention only Grayson.[91] This is baffling insofar as the press release that accompanied the pardon refers to all seven.[92]

Key links in the chain of reasoning that culminates in that pardon are clumsily presented. The third paragraph pronounces that “race played an undeniable role during the identification, conviction, and the sentencing of Francis DeSales Grayson and the six other men.”[93] As already discussed, race almost certainly played a role in the death sentence imposed, but can one as confidently say that it played a role in the conviction and identification? Perhaps one can infer from the racial bias reflected in the sentence that racial bias was also evident in the finding of guilt—that is, that jurors’ prejudices played a role in their weighing of the evidence. It is unclear, moreover, what is intended by the pardon’s claim that race played a role in the identification of the defendants.[94] To be sure, the white victim identified her attackers as black men, and the defendants are black men: Is the pardon’s implication that Ruby Stroud Floyd falsely identified the defendants because of mistaken cross-racial bias? Is there any support for this claim? This is a grave source of error in the criminal justice system, and one that psychological studies have confirmed, and that the legal system should address;[95] however, the historical record is devoid of evidence that Floyd’s identification of her attackers was contaminated by cross-racial bias. The curiously allusive phrasing in the third paragraph points to a glaring absence in the pardon: none of the defendants are ever said to be innocent of the rape of Ruby Stroud Floyd.[96]

In the absence of such a finding, the pardon’s fourth through sixth paragraphs retreat to procedural questions and legal formalisms.[97] As the pardon observes, the voir dire process, which culminated in all-white juries, violated the Sixth Amendment requirement of an “impartial jury,” at least as that phrase has been understood since 1985.[98] The same objection can be raised, however, to the vast majority of convicted black defendants through the modern era: Are they all entitled to pardons?

The fifth paragraph further raises the question of the appropriateness, at least for purposes of extending pardons, of deploying contemporary constitutional standards when evaluating past criminal convictions.[99] The pardon observes that “capital punishment for crimes such as rape” violates a number of post-1972 Supreme Court cases.[100] But the Eighth Amendment prohibition on cruel and unusual punishments has been held to reflect “evolving standards of decency.”[101] Implicit is the acknowledgment that those standards could evolve, and that a punishment that was consistent with standards in 1949 and constitutional at that time might be inconsistent with those standards in 2022 and unconstitutional today.[102] Given the rarity of states imposing capital punishment for nonhomicide offenses today, its imposition for rape can be said to violate the Eighth Amendment in 2022, but no such confidence is possible in 1949, when roughly half of the states reserved the possibility of death sentences for rape.[103]

Later paragraphs of the pardon trail off into rhetoric that does little to justify the extension of a pardon to Grayson or the other defendants.[104] The pardon observes that “discriminatory Jim Crow laws” disfigured Virginia’s legal system for decades, which is indisputably true, but its connection to the innocence of the Martinsville Seven is opaque.[105] The pardon also observes that the seven defendants can no longer “share their truth.”[106] This formulation, whatever its merits in contemporary discourse,[107] is woefully out of place here.

Indeed, at the risk of sounding flippant, one is inclined to ask: Did anyone run the pardon past legal before it was issued? As already noted, the bizarre conclusion focuses exclusively on one of the Martinsville Seven:

Now, Therefore, I, Ralph S. Northam, Governor of the Commonwealth of Virginia, by virtue of the authority vested in me, posthumously grant Francis DeSales Grayson a Simple Pardon.[108]

But what about the other six defendants: Was their outcome not also unjust? And note that the pardon is a Simple Pardon, and not an Absolute Pardon.[109] The latter is reserved for those whom the governor is convinced are actually innocent.[110] Are we to infer from the form of the pardon that the governor doubts that the Martinsville Seven were actually innocent? If so, what was the point of insinuating skepticism about Ruby Stroud Floyd’s identification of her assailants?

II. Lessons from the Almost-Pardon of George Floyd

The death of George Floyd on May 25, 2020, in Minneapolis, convulsed the nation.[111] In the buildup to Officer Derek Chauvin’s murder trial, Floyd’s life came under intense scrutiny.[112] There were reports that, between 1997 and 2007, Floyd had been arrested nine times and served multiple jail terms.[113] One of those convictions, in 2004, was for the sale of a rock of crack cocaine.[114] The testimony of the arresting officer, Gerald Goines, was the only incriminating evidence.[115] Although Floyd denied the accusation, he agreed to a plea bargain, his attorney later claimed, because he faced twenty-five years in prison.[116] After serving a ten-month sentence, he was released and then committed an armed home invasion for which he was sentenced to five years in prison.[117]

Floyd’s 2004 conviction was among several hundred that were revisited years later, in the wake of revelations of police misconduct.[118] Specifically, Goines, the same officer who had arrested Floyd in 2004, participated in a drug raid in 2019 that resulted in the death of two of the house’s occupants.[119] It subsequently came to light that Goines had perjured himself in the warrant application.[120] Harris County District Attorney Kim Ogg ordered her office to review hundreds of cases that had been brought based on Officer Goines’s testimony.[121] With the District Attorney’s acquiescence, at least two convicted defendants succeeded in having their convictions overturned through judicial decree.[122]

In April 2021, Allison Mathis, the public defender who had represented Floyd in the 2004 charge, submitted a pardon application on behalf of Floyd.[123] Days later, District Attorney Ogg filed a letter expressing support.[124] And in October 2021, the Texas Board of Pardons and Paroles (the “Board”) unanimously recommended that Floyd receive a posthumous pardon.[125] The pardon sat on Governor Abbott’s desk for several months, eventually attracting speculation as to the cause of delay.[126] Then, in December 2021, the Board withdrew its recommendation.[127] In a letter addressed to Governor Abbott’s office, the Board’s presiding officer wrote that it was in the process of examining its own procedures and discovered some “departures” from its rules.[128] As a result, the Board withdrew its recommendation for Floyd and twenty-four others but indicated that it would review those applications in 2022.[129] Thus, according to the governor’s press secretary, the governor “did not have the opportunity to consider” Floyd’s petition.[130]

All of this was puzzling, but as is so often true, unravelling the puzzle may further our understanding. Mathis said the application had gone through a compliance review, and none of the Board’s members had raised any issues.[131] What, then, were the late-discovered “departures”? Compounding the mystery is a mismatch between the provisions of Texas law cited in Floyd’s application for a pardon and in the Board’s cryptic statement of its withdrawal of the recommendation.[132] Floyd’s application had been made pursuant to Section 143.13 of the relevant Texas Code, but the Board’s withdrawal suggested deficiencies under Section 143.2.[133] Floyd’s application plainly failed to meet the exacting standards set forth in Section 143.2, which governs “pardons for innocence.”[134] Such relief is permissible only when the Board receives either (a) the “written recommendation of at least two of the current trial officials of the sentencing court” that, on the basis of newly discovered evidence, the petitioner is actually innocent; or (b) a judicial order pronouncing the petitioner actually innocent.[135] Neither condition was satisfied in Floyd’s case.[136]

Floyd’s petition, however, was filed under Section 143.13, entitled “Posthumous Pardon,” which provides, in full: “Upon request from a person acting on behalf of a deceased person who was convicted of a felony offense, the Board will consider recommending a full pardon for the deceased person.”[137] Floyd’s application for a pardon, through his lawyer, satisfied the sparse terms of Section 143.13. It is, therefore, unclear why the Board decided, apparently in retrospect, that the requirements of Section 143.2 also apply to petitions filed under Section 143.13.[138]

The contrast between the rigor of Section 143.2 and the laxity of Section 143.13 nonetheless puts in bold relief the question before us: What should be required for the issuance of a posthumous pardon? Texas’s scheme can at least be credited with recognizing that special rules should apply to posthumous pardons. It would be absurd to condition a posthumous pardon on evidence submitted by “two of the current trial officials” who heard the case.[139] For defendants convicted long ago, those officials may themselves be dead or unable to give credible evidence.

On the other hand, is it not possible to channel the decision-making with respect to posthumous pardons more than Section 143.13? Indeed, the only limitation on the issuance of posthumous pardons cited in that section—that the request be by one “acting on behalf of a deceased person”[140]—is ill-chosen. Who is authorized to “act[] on behalf”? If the moving party must be a legal descendant, then circumstances could arise in which a dead person, however deserving of a pardon, would be ineligible, because there are no next of kin. Or does any Texan (or American? or person?) have standing to request a pardon on behalf of a deceased? And if so, on what basis are such pardons to be issued? Must “actual innocence” be established, even for those whose trials occurred long ago and as to which the facts are shrouded in the mists of time?

In short, Texas’s pardon scheme is preferable to Virginia’s in at least three ways: first, it provides a transparent screening process, in which pardon applications are processed by an independent board; second, at least for ordinary pardons, the board operates within relatively clear guidelines; and third, posthumous pardons are carved out as special cases. The principal defect is the failure to specify or even hint at what rules should govern posthumous pardons. What those rules might be is the issue to which this Article now turns.

III. Legally Exonerating the Dead: Costs and Benefits

Academic discussions of pardons in America tend to take one of two tracks—either lamenting their rarity or condemning their frivolity.[141] Both criticisms are well-founded. There are doubtless many people languishing in prison for crimes of which they are wholly innocent, excessively punished, or genuinely repentant; this reality is all the more intolerable when one reflects that the mere stroke of a president’s or governor’s pen could often remedy the injustice. [142] And yet when that pen is wielded, alas, how randomly it seems to select its beneficiaries.[143] The catalog of manifestly unmerited pardons is long. When governors and even presidents have been left to their own devices, pardons often seem recklessly granted, for personal or partisan gain.[144]

Posthumous pardons are likewise not exempt from criticism. Consider President Trump’s posthumous pardon of Susan B. Anthony.[145] She was charged with violating New York state law in 1872, when she illegally voted in the presidential election.[146] She was afforded zealous counsel and the opportunity to speak her mind after the guilty verdict, which she emphatically did, in a speech that did much to launch the women’s suffrage movement.[147] Indeed, the trial was a boon to Anthony’s cause, in giving her an abundance of free and overwhelmingly favorable publicity.[148] No effort was ever made to collect the penalty (a $100 fine) that was imposed—which was doubtless a good thing, as Anthony repeatedly said that she would never pay it.[149] The Susan B. Anthony Museum rejected the pardon, saying in the same spirit as Anthony herself, that accepting the pardon would have validated the trial.[150] Some observers mused that the president issued the pardon as a cynical ploy to attract women voters.[151]

Or consider President Trump’s pardon of boxer Jack Johnson.[152] Johnson aroused racial animosity throughout his career, and his prosecution in 1913 under the much-denigrated Mann Act was at least in part the result of prejudice.[153] Nonetheless, the Act remains on the books (used most recently against Ghislaine Maxwell).[154] There were other notorious prosecutions under the Act, such as that of F. Drew Caminetti, also in 1913, for crossing state lines with his mistress.[155] That conviction was upheld in a 1917 Supreme Court decision that held that consensual, nonmarital sex fell within the statute’s definition of “immoral sex.”[156] In light of Lawrence v. Texas,[157] should Caminetti be pardoned? Of course, the ceremony accompanying such a pardon would not be attended by celebrities such as Sylvester Stallone and Deontay Wilder, nor would it attract praise from far-flung political quarters.[158] Curiously, President Obama resisted the many calls to pardon Johnson, with his Attorney General, Eric Holder, reportedly saying: “To know the way in which he treated women, physically abused women, gives me pause.”[159]

Other high-profile posthumous pardons also raise concerns. When New York Governor George Pataki pardoned comedian Lenny Bruce, who had been convicted of obscenity, the applause was universal.[160] Bruce’s case was supported at the time (and after) by many celebrities, such as Woody Allen, Norman Mailer, and James Baldwin.[161] But what was achieved? Although Bruce was sentenced to four months for obscenity, he died, as the result of a drug overdose, in the pendency of the appeal; and so technically, his conviction was abated.[162] In any event, he was almost certain to prevail on appeal, as his co-defendant did, and as Bruce himself did in several related cases.[163] One can celebrate Bruce’s pardon as a vindication of the First Amendment,[164] but one might more cynically observe that such proclamations are easy ways for politicians to burnish their own reputations, even if the pardon does nothing to burnish the reputation of the putative beneficiary: Has anyone’s opinion of Lenny Bruce changed as the result of the pardon? And, why just Lenny Bruce? Why not Mae West, who actually served ten days in a New York prison for obscenity, but who, alas, has fewer living acolytes to rally to her cause?[165]

One might respond that even if very little good is accomplished by such posthumous pardons, what is the harm? Indeed, those wary of government actors might applaud posthumous pardons on the premise that every minute an elected politician devotes to such matters is a minute not spent on matters likely to harm the public interest. But let us discount such cynicism and operate on the opposite hypothesis—that a public official’s time is both finite and valuable. Are posthumous pardons the best use, or even a good use, of that time? Before weighing the supposed benefits, are there costs to posthumous pardons? In the category of actuals costs, any pardon undoes the finality of a verdict. The consequent uncertainty—and controversy—can fuel an appreciation of the wisdom in the adage about letting sleeping dogs lie. The several-decade saga involving the exoneration of Leo Frank is illustrative.

Cornell-educated, Frank was the Jewish factory manager of a pencil factory in Atlanta in 1913, when fourteen-year-old Mary Phagan was found murdered in the factory basement.[166] Jim Conley, the illiterate black nightwatchman who had discovered the victim, initially proved a convenient suspect, but prosecutors soon focused on a more luscious defendant: the rich Yankee factory manager.[167] Frank’s trial was far from a model of perfection, but it was not a mockery of justice.[168] Even after the U.S. Supreme Court issued an opinion affirming the conviction,[169] doubts continued to mount, intensified by a campaign on Frank’s part by the Jewish community in Atlanta and throughout the nation.[170] Governor Slanton commuted Frank’s sentence to life imprisonment, but the reprieve was brief. [171] On the evening of August 16, 1915, twenty-five armed men broke into the prison, abducted Frank, and lynched him the following morning.[172]

In 1986, the Georgia Board of Pardons and Paroles sought to correct the injustice and issued what was described as a pardon of Frank.[173] And yet, what one might expect to have brought a measure of “closure” to this unfortunate episode in history has accomplished exactly the opposite. The pardon was careful not to absolve Frank of the crime; it simply regretted the State’s failure to protect him while in custody and expressed misgivings about some of the trial’s procedures.[174] This has not satisfied many, who have continued to push for, and even demand, the full exoneration that Frank’s memory demands.[175] And yet, if Frank is innocent, then Conley was almost certainly guilty. Is it fair, after a century, on the basis of shaky evidence, to hold him responsible for murder? And then there is the family of Mary Phagan, who continue to insist on Frank’s guilt and have strenuously opposed a pardon.[176]

Let us reconsider the Martinsville Seven pardon in light of the ongoing Frank-pardon saga. Ruby Stroud Floyd was raped, almost certainly by more than one man, on January 8, 1949.[177] Recall that according to Governor Northam’s pardon, the Martinsville Seven each have a “truth.”[178] Even allowing the post-modern possibility of a multiplicity of truths, does Ruby Stroud Floyd not also have a truth? She testified—seven times—to the guilt of the Martinsville Seven.[179] Does the pardon repudiate her truth? Or is the pardon preserving respect for her truth, but only allusively suggesting the possibility that the Martinsville Seven were innocent, without actually saying so? Threading that needle would have required a more skillful rhetorician than was apparently employed in the former governor’s office.

In her essay on the Martinsville Seven, Professor Barbara Holden-Smith is very critical of a legal system that singled out black men for capital punishment, but a respect for the complexity of the case leads her to this observation:

There are two compelling stories here. On the one hand resides the horror of the South’s history of putting black men to death-first by mostly extra-legal lynching and later by state-sanctioned executions. On the other hand sits the horror of rape itself and all it symbolizes about the unjust treatment of women in our society.[180]

As with Leo Frank, a pardon of the Martinsville Seven, if approached with any legal rigor, presupposes a reassessment of the entire case; to do so requires a fuller investigation and accounting than was even begun. For starters, were Ruby Stroud Floyd’s descendants consulted before the pardon was issued? Furthermore, the curious phrasing of the pardon itself, singling out Grayson, raises the question: Were the other defendants equally exonerated? As in the Frank controversy, excusing one person of a crime may be an oblique way of accusing another; in the absence of newly discovered evidence, what justifies this remarkable step?

Pardoning George Floyd for drug possession might be said to be a less nettlesome enterprise, because there is no crime victim whose truth would be denied, or co-defendants whose guilt would be affirmed. But again, there is the hidden cost. The Texas Board of Pardons and Paroles has a stunningly large docket.[181] There are now over 150,000 people behind bars in Texas.[182] Hundreds of thousands more people labor under the miscellaneous burdens of a felony conviction.[183] In addition to clemency recommendations, the Board is responsible for which prisoners to release on parole, what the conditions of parole should be, and when revocation of parole is appropriate.[184] Is the best use of the Board’s time to debate what happened in 2004, when Officer Goines claimed to witness Floyd sell a $10 rock of crack cocaine?[185] Goines, we may assume, lied in a warrant application that resulted in a disastrous search in 2019,[186] but presumably at various points in his earlier life he told the truth. Harris County District Attorney Kim Ogg joined in the request to issue Floyd a posthumous pardon,[187] but it is unclear what steps, if any, were taken to arrive at any confidence of George Floyd’s innocence. Said Goines’s attorney in June 2020: “this is a transparent and opportunistic effort to capitalize on Floyd’s murder.”[188]

Ogg was narrowly reelected in November 2020.[189]


Posthumous pardons are emblematic of what has become a large and growing part of our government’s docket: symbolic legislation and executive orders.[190] The attraction of such gestures is straightforward: it allows public officials to associate themselves with noble causes at relatively little risk of offending anyone, or at worst, by offending only the incorrigibly dyspeptic.

This Article might seem to fall within the latter camp, but the aim is to persuade the reader that a measure of skepticism about posthumous pardons is appropriate. First, the costs to unraveling a long-ago conviction are often understated. Second, given the finitude of a public officials’ time and attention, the benefits conferred by the posthumous pardon are secured only at the expense of other pardons that might confer tangible benefits.

Viewed from this perspective, posthumous pardons are less clearly to be celebrated. In Floyd’s case, the Harris County District Attorney appropriately ordered a comprehensive review of every case Officer Goines brought over the course of his twenty-year career,[191] but surely priority should be assigned to living convicted defendants. Floyd’s tragic death sixteen years later and over 1,000 miles away cannot be undone by the pardon.

The Martinsville Seven pardon is almost a case study in how not to exonerate the dead. The pardon sloppily mixes insinuations that the victim misidentified the defendants, with implications that some, but not all, defendants might really have been guilty. The death sentences imposed on all seven defendants in that case were plainly the consequence of their race. That should have been the straightforward statement of Governor Northam, without the embellishments and flowery rhetoric that complicated the message and undermined its power.

The communal impulse to recognize past errors committed under the color of law is praiseworthy. At times, it is even appropriate to solemnize that impulse in the legal form of a pardon. But that impulse can take many other nonlegal forms—most notably, declarations of contrition by heads of state.[192] Such apologies can, and often should, be joined by monetary relief. Illustrative is the Civil Liberties Act of 1988, in which the U.S. Government not only apologized for the internment of Japanese Americans but also created a $1.25 billion compensation fund.[193] A pardon is a legal remedy designed to achieve concrete objectives, such as the liberation of a wrongly convicted, excessively punished, or genuinely repentant person. Except in extraordinary circumstances, involving the most clearly proven and outrageous injustices, when the putative beneficiary is already dead, a pardon is an ill-chosen vehicle for the delivery of nebulous symbolic benefits.

  1. . Professor of Law, Scalia Law School, George Mason University. The author thanks Thomas Coleman for research assistance.
  2. . Press Release, Governor Ralph Northam, Governor Northam Grants Posthumous Pardons for ‘Martinsville Seven’ 70 Years After Unjust Executions (Aug. 31, 2021) (available at [hereinafter Northam Press Release]; Simple Pardon, Commonwealth of Virginia, Executive Department, Martinsville Seven Grant (Aug. 31, 2021), [hereinafter Martinsville Seven Pardon].
  3. . Policies, Off. of the Pardon Att’y, (last updated Dec. 23, 2020).
  4. . Darryl W. Jackson et al., Bending Toward Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper, 74 Ind. L.J. 1251, 1251 (1999).
  5. . Eric Lichtblau, Jailed for Aiding Israel, but Pardoned by Bush, N.Y. Times (Dec. 23, 2008),
  6. . Policies, supra note 2.
  7. . Stephen Landsman, When Justice Fails, 84 Mich. L. Rev. 824, 829 (1986).
  8. . Jackson, supra note 3, at 1288.
  9. . John Snowden (1890-1919), Archives of Md., (last visited Apr. 5, 2022).
  10. . John Kifner, No Joke! 37 Years After Death Lenny Bruce Receives Pardon, N.Y. Times (Dec. 24, 2003),
  11. . The Innocence Project & Maurice Possley, Timothy B. Cole, Nat’l Registry of Exonerations, (last updated Mar. 10, 2015).
  12. . Press Release, Off. of the Governor, Governor Lincoln D. Chafee Pardons John Gordon, (Jun. 29, 2011) (available at
  13. . Frank James, Tom Joyner’s Wrongly Executed Relatives Cleared ­– 94 Years Too Late, NPR (Oct. 14, 2009, 8:15 PM),
  14. . Verna Gates, Alabama Pardons Scottsboro Boys in 1931 Rape Case, Reuters (Nov. 21, 2013, 11:20 AM),
  15. . Jacey Fortin, Florida Pardons the Groveland Four, 70 Years After Jim Crow-Era Rape Case, N.Y. Times (Jan. 11, 2019),
  16. . Samantha Schmidt, Decades After His Arrest For Having Sex With Men, A Gay Civil Rights Leader Is Pardoned, Wash. Post (Feb. 5, 2020),
  17. . Press Release, Off. of the Governor, Gov. Edwards Signs the First and Historic Posthumous Pardon of Civil Rights Leader Mr. Homer A. Plessey (Jan. 5, 2022) (available at
  18. . Kevin Reynolds, Texas Board Recommends George Floyd Receive a Posthumous Pardon for 2004 Houston Drug Arrest, Tex. Trib. (Oct. 4, 2021, 7:00 PM),
  19. . Jolie McCullough, Texas Gov. Greg Abbott Remains Silent on Posthumous Pardon for George Floyd, Tex. Trib. (Nov. 29, 2021, 7:00 PM),
  20. . Kate McGee, Texas Board Rescinds Recommendation for Posthumous Pardon of George Floyd, Tex. Trib. (Dec. 23, 2021, 6:00 PM),
  21. . Id.
  22. . Scott D. Seligman, Justice for the Dead, Atlantic (Oct. 26, 2021),
  23. . Fred O. Smith, The Constitution After Death, 120 Colum. L. Rev. 1471 (2020).
  24. . Id. at 1472, 1513.
  25. . Id. at 1473 (quoting Sophocles’ Antigone).
  26. . Carol S. Steiker, Remembering Race, Rape, and Capital Punishment, 83 Va. L. Rev. 693, 695 (1997).
  27. . Barbara Holden-Smith, Inherently Unequal Justice: Interracial Rape and the Death Penalty, 86 J. Crim. L. & Criminology 1571, 1574 (1996).
  28. . See generally Eric W. Rise, The Martinsville Seven: Race, Rape, and Capital Punishment (1995).
  29. . The link that was active when Ralph Northam was governor is now broken. The document is now accessible only through Wayback Machine Internet Archives. See Martinsville Seven Pardon, supra note 1.
  30. . The facts of the following two paragraphs are drawn from Rise, supra note 27, at 7–20, and Hampton v. Commonwealth, 58 S.E.2d 288, 289–90 (Va. 1950).
  31. . Rise, supra note 27, at 7.
  32. . Id. at 8.
  33. . Id. at 9.
  34. . Id.
  35. . Id. at 10.
  36. . Id. at 11.
  37. . Id.
  38. . Id. at 17, 19–20.
  39. . Id. at 10, 16.
  40. . Id. at 10.
  41. . Id. at 12–15.
  42. . Id. at 14.
  43. . See id. at 16; Martinsville Seven Pardon, supra note 1.
  44. . Rise, supra note 27, at 15.
  45. . Id.
  46. . Id.
  47. . Id. at 16.
  48. . Id.
  49. . Id.
  50. . Id. at 17.
  51. . Id. at 18.
  52. . See id.
  53. . Id. at 13.
  54. . Under Virginia law, voluntary intoxication is only a defense to premediated murder. Lawlor v. Davis, 764 S.E.2d 265, 276 (Va. 2014).
  55. . Rise, supra note 27, at 15–17.
  56. . Technically, the conviction would be for rape as a principal in the second degree. Sutton v. Commonwealth, 324 S.E.2d 665, 671 (Va. 1985).
  57. . Rise, supra note 27, at 19.
  58. . See, e.g., Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies by Police, 76 Or. L. Rev. 775, 785 (1997).
  59. . See infra Subpart I.B.
  60. . Rise, supra note 27, at 18–19.
  61. . Id. at 18.
  62. . Id. at 19.
  63. . Michael J. Klarman, Scottsboro, 93 Marq. L. Rev. 379, 385 (2009).
  64. . Hampton, 58 S.E.2d at 294 (quoting trial judge: ‘The public in this community should be congratulated upon the way they have conducted themselves”).
  65. . Rise, supra note 27, at 29 (the defense lawyers included a state legislator, a former commonwealth’s attorney, and “one of the foremost defense lawyers in this entire area”).
  66. . See Klarman, supra note 62, at 383 (defense lawyers included a “local septuagenarian” and an alcoholic who “could scarcely walk straight in the morning”).
  67. . Rise, supra note 27, at 29.
  68. . Id. at 30.
  69. . Id. at 31–32.
  70. . Compare Hampton, 58 S.E.2d at 293–94 with Skilling v. United States, 561 U.S. 358, 378 n. 11, 382 (2010).
  71. . Rise, supra note 27, at 38–40.
  72. . See, e.g., Ellis Cose, The Saga of the Scottsboro Boys, ACLU (July 27, 2020),
  73. . Rise, supra note 27, at 38–45; Hampton, 58 S.E.2d at 296–97.
  74. . Rise, supra note 27, at 43–45.
  75. . Id. at 43.
  76. . Id. at 45.
  77. . Compare Rise, supra note 27, at 38–45, with Klarman, supra note 62, at 383.
  78. . Rise, supra note 27, at 36.
  79. . Id. at 36–37.
  80. . Id.
  81. . See Batson v. Kentucky, 476 U.S. 79, 79–80 (1986).
  82. . Rise, supra note 27, at 47.
  83. . Kennedy v. Louisiana, 554 U.S. 407, 473 (2008).
  84. . See Trop v. Dulles, 356 U.S. 86, 100–01 (1958).
  85. . Dale M. Brumfield, Seven Black Men, Seven Death Penalties, Medium (June 5, 2019), See generally David C. Baldus & George Woodworth, Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception, 53 DePaul L. Rev. 1411 (2004).
  86. . Baldus & Woodworth, supra note 84, at 1415–17.
  87. . See Davis v. Commonwealth, 45 S.E.2d 167, 169 (Va. 1947).
  88. . Id. at 168.
  89. . “James Luther Taylor” in the second paragraph is a curious amalgam of two of the defendants: James Luther Hairston and John Clabon Taylor. See Martinsville Seven Pardon, supra note 1. Also, the second paragraph refers to “James (Joe) Henry Hampton,” which apparently corresponds to “Joe Henry Hampton” in the first paragraph. Id. At no point in any of the legal filings was this defendant referred to as “James (Joe),” so it is unclear what inspired the pardon’s author to adopt this formulation. See, e.g., Hampton, 58 S.E.2d at 288–92, 299, 301–02 (referring to “Joe Henry Hampton” throughout).
  90. . See Martinsville Seven Pardon, supra note 1.
  91. . Id.
  92. . Northam Press Release, supra note 1.
  93. . Martinsville Seven Pardon, supra note 1.
  94. . Id. at ¶ 3.
  95. . See, e.g., John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 Am. J. Crim. L. 207, 214 (2001).
  96. . Martinsville Seven Pardon, supra note 1.
  97. . Id.
  98. . See Darryl K. Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 Md. L. Rev. 107, 109 (1994) (discussing the Batson doctrine, which “hinders both sides in a criminal case from the use of racially based peremptory strikes in jury selection”).
  99. . Martinsville Seven Pardon, supra note 1.
  100. . Id.
  101. . Trop v. Dulles, 356 U.S. 86, 101 (1958).
  102. . See Kennedy v. Louisiana, 554 U.S. 407, 422–24 (2008) (relying on fact that between 1930 and 1964, 455 people convicted of rape were executed, whereas death sentences for rape became rare thereafter).
  103. . Herbert L. Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1073 (1964).
  104. . See Martinsville Seven Pardon, supra note 1.
  105. . Id.
  106. . Id.
  107. . See Conor Friedersdorf, The Difference Between “Your Truth” and “The Truth,” Atlantic (Jan. 8, 2018),
  108. . See Martinsville Seven Pardon, supra note 1.
  109. . Id.
  110. . Types of Pardons in Virginia and Eligibility Information, Sec’y of the Commonwealth, (last visited Apr. 3, 2022).
  111. . See Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020, 6:49 AM),
  112. . See Luis Andres Henao et al., A Long Look at the Complicated Life of George Floyd, Chi. Trib. (June 11, 2020, 11:17 AM),
  113. . Some of the more extravagant claims of Floyd’s criminal history are meticulously fact-checked in Gabrielle Settles, A Post Exaggerates George Floyd’s Criminal History, Politifact (Jul. 28, 2021), That article includes a screenshot of the nine offenses listed in the County database. Id.
  114. . See Juan A. Lozano, Texas Board Recommends Posthumous Pardon for George Floyd in 2004 Drug Arrest; Request Awaiting Governor’s Approval, USA Today (Oct. 5, 2021, 2:29 P.M.),
  115. . See Michael Daly, The Monster Cop Who Encountered George Floyd in Houston, U.S. News (Jun. 11, 2020),
  116. . St. John Barned-Smith, George Floyd Should Receive Posthumous Pardon in 2004 Goines Arrest, State Board Recommends, Hous. Chron., (last updated Oct. 4, 2021, 6:50 PM).
  117. . Arelis R. Hernandez, George Floyd’s America: A Knee On His Neck, Wash. Post, (last updated Oct. 26, 2020, 7:54 AM) (noting that after arrest, Floyd faced up to forty-years in prison but, due to circumstantial evidence, was offered a twelve-year plea deal and then the ultimately accepted five-year plea deal).
  118. . Chloe Alexander, Texas Parole Board Recommends Posthumous Pardon for George Floyd in 2004 Conviction, KHOU 11, (Oct. 4, 2021, 6:30 PM).
  119. . Letter from Kim Ogg, Harris Cnty. Dist. Att’y, to Texas Bd. of Pardons & Paroles (Apr. 28, 2021) (available at [hereinafter Ogg Letter].
  120. . ‘Procedural Errors’ Mean No Posthumous Pardon For George Floyd Regarding 2004 Drug Arrest In Houston, CBS DFW 21 (Dec. 24, 2021, 7:35 AM),
  121. . Ogg Letter, supra note 118.
  122. . Ex parte Otis Mallet, 602 S.W.3d 922 (Tex. Crim. App. 2020); Ex parte Steven Mallet, 620 S.W.3d. 797, 798 (2021).
  123. . See Reynolds, supra note 17.
  124. . Ogg Letter, supra note 118.
  125. . Reynolds, supra note 17.
  126. . See McCullough, supra note 18.
  127. . Letter from David Gutiérrez, Presiding Officer, Texas Bd. of Pardons & Paroles, to James Sullivan, Gen. Couns., Off. of the Governor (Dec. 16, 2021), [hereinafter Gutiérrez Letter]
  128. . Id.
  129. . Id.
  130. . Press Release, Off. of the Texas Governor, Governor Abbott Grants Clemency To Eight Texans Recommended By Texas Board Of Pardons And Paroles (Dec. 23, 2021) (available at
  131. . Kate McGee, Texas board rescinds recommendation for posthumous pardon of George Floyd, Tex. Trib. (Dec. 23, 2021),
  132. . Compare Ogg Letter, supra note 118 (request for pardon filed under 37 Tex. Admin. Code § 143.13), with Gutiérrez Letter, supra note 126 (finding “departures” under §§ 143.2, 143.6, 143.10).
  133. . See Ogg Letter, supra note 118; Gutiérrez Letter, supra note 126.
  134. . See 37 Tex. Admin. Code § 143.2 (2018).
  135. . Id.
  136. . See Ogg Letter, supra note 118 (agreeing with pardon recommendation because arresting officer later found to be unreliable but not attaching any recommendation from trial officials or a judicial order).
  137. . 37 Tex. Admin. Code § 143.13 (2018).
  138. . See Gutiérrez Letter, supra note 126.
  139. . 37 Tex. Admin. Code § 143.2.
  140. . 37 Tex. Admin. Code § 143.13.
  141. . See, e.g., Paul J. Larkin, Guiding Presidential Clemency Decisionmaking, 18 Geo. J. L. & Pub. Pol’y 451 (2020); Chet Flanders, Pardons and the Theory of the Second Best, 65 Fla. L. Rev. 1559 (2013); Robert L. Misner, 41 Wm. & Mary L. Rev. 1303 (2000).
  142. . In some states, governors can only issue pardons after first receiving a recommendation by a parole board; in a minority of states, the legislature has delegated the power to issue pardons exclusively to a parole board. See Kristen H. Fowler, Comment, Limiting the Federal Pardon Power, 83 Ind. L.J. 1651, 1662–64 (2008).
  143. . See, e.g., Sarah Schindler, Pardoning Dogs, 21 Nev. L.J. 117 (2020).
  144. . A recent, notably ill-conceived pardon was issued by Kentucky’s Governor Matt Bevin in his final days in office to a convicted killer, whose family had hosted a political fundraiser for him. Pardoned Kentucky Killer Sentenced to 42 Years in Prison, NBC News (Jan. 19, 2022, 6:18 AM), Federal charges were subsequently brought, and the pardoned individual was convicted in federal court for the same offense. Id.
  145. . Executive Grant of Clemency, Donald J. Trump: President of the United States of America, Unconditional Posthumous Pardon of Susan B. Anthony (Aug. 18, 2021) (available at
  146. . For the details of Anthony’s trial, see Rayne L. Hammond, Trial and Tribulation: The Story of United States v. Anthony, 48 Buff. L. Rev. 981, 982 (2000).
  147. . See id. at 1029–31.
  148. . Id. at 1032.
  149. . See id. at 1031–32.
  150. . See Neda Ulaby, Susan B. Anthony Museum Rejects President Trump’s Pardon of the Suffragist, NPR (Aug. 20, 2020, 2:45 PM),
  151. . Libby Cathey, Critics Pressure Trump to Rescind Susan B. Anthony Pardon, ABC News (Aug. 19, 2020, 4:15 PM),
  152. , Executive Grant of Clemency, Donald J. Trump: President of the United States of America, Unconditional Pardon of John “Jack” Arthur Johnson (May 4, 2018) (available at
  153. . See Denise C. Morgan, Jack Johnson: Reluctant Hero of the Black Community, 32 Akron L. Rev 529, 549–55 (1999); see also 18 U.S.C. § 2421.
  154. . Melissa Gira Grant, The Law Was Never Meant for Ghislaine Maxwell, New Republic (July 10, 2020),
  155. . See Caminetti v. United States, 242 U.S. 470, 482–83 (1917).
  156. . Id. at 491–93.
  157. . 539 U.S. 558, 578 (2003) (“The State cannot demean [petitioners’] existence or control their destiny by making their private sexual conduct a crime.”).
  158. . See John Eligon & Michael D. Shear, Trump Pardons Jack Johnson, Heavyweight Boxing Champion, N.Y. Times (May 24, 2018),
  159. . Kelefa Sanneh, Donald Trump, The Fighter-in-Chief, Pardons Jack Johnson, New Yorker (May 26, 2018),
  160. . Kifner, supra note 9.
  161. . Obscenity Case Files: People v. Bruce (The Lenny Bruce Trial), CBLDF, (last visited April 2, 2022).
  162. . See Kifner, supra note 9; Durham v. United States, 401 U.S. 481, 482–83 (1971) (holding that death during the pendency of an appeal “abates not only the appeal but also all proceedings had in the prosecution from its inception”).
  163. . Ronald K.L. Collins, Lenny Bruce and the First Amendment: Remarks at Ohio Northern University Law School, 30 Ohio N.U. L. Rev. 15, 30 (2004).
  164. . Id. at 31.
  165. . Charlotte Burns, Sex: The Play That Put Mae West in Prison Returns to New York, Guardian (Sept. 29, 2016),,of%20success%20wrong%20by%20wrong%E2%80%9D.
  166. . The account here relies on Steve Oney, And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank (2004).
  167. . See Oney, supra note 165, at 118–44.
  168. . The issue is still hotly debated, but Oney’s elaborate discussion of the trial, id. at 190–344, does much to undercut the narrative implicit in Justice Holmes’s dissenting opinion in Frank v. Mangum, 237 U.S. 309, 345–50 (1915). Oney makes clear that Frank had extraordinarily diligent counsel, a fair judge, and attentive jurors; he implies that the case was crucially lost because Frank, although honest, was an unappealing witness—cold, humorless, repetitive. Oney, supra note 165, at 300–03.
  169. . See Frank, 237 U.S. at 345 (1915).
  170. . Oney, supra note 165, at 474–80.
  171. . Id. at 503–12.
  172. . See Clement Charlton Mosely, The Case of Leo M. Frank 1913–1915, 51 Ga. Hist. Q. 42, 54 (1973); Oney, supra note 165, at 561–72.
  173. . Georgia Pardons Victim 70 Years After Lynching, N.Y. Times (Mar. 12, 1986),
  174. . See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 74 n.274 (1987).
  175. . Our View – The Pardon, Atlanta Jewish Times (Aug. 24, 2015),
  176. . On the ongoing controversy, see Steve Oney, Did Leo Frank Kill Mary Phagan? 106 Years Later, We Might Finally Find Out for Sure, Atlanta (May 31, 2019),
  177. . See supra text accompanying notes 31–51.
  178. . See Martinsville Seven Pardon, supra note 1.
  179. . See Rise, supra note 27, at 36–38.
  180. . Holden-Smith, supra note 26, at 1581.
  181. . See Exec. Serv., Texas Dep’t. of Crim. Just., Fiscal Year 2019 Statistical Report 6 (2020).
  182. . Incarceration Trends in Texas, Vera Inst. of Just., (last visited May 13, 2022).
  183. . See supra note 180, at 6.
  184. . See About Us: Texas Bd. of Pardons and Paroles, (last visited Apr. 5, 2022).
  185. . See supra notes 113–15.
  186. . See supra notes 113–15.
  187. . See Ogg Letter, supra note 118.
  188. . Jack Bleiberg, Texas Prosecutors Probe Irregularities in 2004 Floyd Arrest, AP News (June 13, 2020),
  189. . See Kim Ogg, Ballotpedia, (last visited May 20, 2022).
  190. . William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 531–32 (2001); Andrew Cohen, Symbolic Legislation to Nowhere, Atlantic (Feb. 23, 2012),
  191. . See Ogg Letter, supra note 118.
  192. . See Hugh Mulligan, Better Late Than Never—Sephardic Jews Savor Spain’s Apology, L.A. Times (May 17, 1992, 12:00 AM),
  193. . Civil Liberties Act of 1988, Pub. L. No. 100–383 (codified at 50 U.S.C. § 1989).

By Matthew Hooker

Spencer v. Virginia State Univ.

            In this civil case, the Fourth Circuit affirmed a grant of summary judgment in favor of Virginia State University concerning the plaintiff’s claim that she was sexually discriminated against with respect to her salary. The plaintiff, a sociology professor, earned a median salary when compared to men who were also full professors in the same department. But the plaintiff argued that the court should compare her pay to that of two former university administrators who earned at least $30,000 more than her. But the Fourth Circuit held that because the plaintiff and these two men did not perform “equal” work requiring “equal skill, effort, and responsibility,” she could not prevail under the Equal Pay Act. “Professors are not interchangeable like widgets.” The two men taught in different departments than the plaintiff, taught at a higher class level, and worked more hours. The Fourth Circuit also held the plaintiff could not prevail under Title VII because the university had explained the pay disparity by showing its practice of paying administrators 9/12ths of their previous salary, which was a nondiscriminatory reason.

United States v. Davis

            In this criminal case, the Fourth Circuit held that the district court did not abuse its discretion in admitting certain pieces of evidence when the defendant was ultimately convicted for distribution of over 50 grams of methamphetamine. The defendant had also objected to the use of coconspirator testimony for sentencing purposes after the jury had acquitted him on a charged conspiracy count.

            The Fourth Circuit first held that the admission of an out-of-court statement of an informant was not an abuse of discretion because the testimony was offered as an explanation or motive for the officers’ use of the informant, so the testimony was not hearsay under Federal Rule of Evidence 801(c). The Fourth Circuit next held that the government properly authenticated certain photos introduced at trial because, even though there was no direct evidence to authenticate, the context was sufficient to authenticate since “the burden to authenticate under Rule 901 is not high.” The Fourth Circuit also held that an officer’s familiarity with the defendant’s voice was enough to authenticate a recording of a telephone conversation since the officer had in-person conversations with the defendant such that the officer would be able to recognize his voice.

            Finally, the Fourth Circuit held that the district court properly explained the sentence imposed, even though the court considered acquitted conduct in establishing the drug amounts. Since it has long been acceptable to consider such conduct, and because the district court did explain its consideration and the defendant’s contrary arguments, the explanation was adequate.

Duncan v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) applied the incorrect standard of review in reviewing an immigration judge’s (“IJ”) determinations. The IJ had concluded that the petitioner was not in his father’s physical custody under the Child Citizenship Act of 2000 (“CCA”), subjecting the petitioner to removal proceedings. In a case of first impression, the Fourth Circuit concluded that whether an individual was in the “physical custody” of a parent under the CCA is a mixed question of fact and law, requiring a bifurcated approach. The Fourth Circuit held that the application of the facts to the relevant state law in determining whether an individual satisfies the physical custody requirement is a legal judgment subject to de novo review by the BIA. Since the BIA reviewed for clear error, remand of the case was necessary for application of the correct standard.

Vasquez v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) failed to fully consider all relevant evidence in support of the petitioner’s claim for asylum and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The petitioner had expressed great fear that she and her son would be tortured or even murdered by the 18th Street gang if they were removed and sent back to El Salvador. In reviewing the immigration judge’s (“IJ”) denial of relief, the BIA did not adopt the IJ’s opinion but instead offered its own reasons for denying relief, so the Fourth Circuit reviewed the BIA’s reasons. Although the BIA had considered country condition reports, it had ignored the petitioner’s testimony that she twice sought the aid of local police and twice was turned away. Since the BIA wholly failed to consider this evidence, the Fourth Circuit remanded the case for review of all relevant evidence.

Attkisson v. Holder

            In this civil case, the Fourth Circuit affirmed a dismissal for failure to state a claim where the plaintiffs sued a number of government officials and corporate entities for alleged illegal intrusions into the plaintiffs’ electronic devices to conduct unlawful surveillance. The Fourth Circuit first held that the plaintiffs failed to state a Bivens claim. Although Bivens itself recognized a remedy for Fourth Amendment violations, the Fourth Circuit viewed the plaintiffs’ claim as presenting a “new Bivens context” because of the rank of the government officials here and the use of electronic surveillance. Since this was a new Bivens context, the Fourth Circuit had to consider whether there were special factors suggesting denying a cause of action. Here, the Fourth Circuit held such factors were present since Congress had already explicitly legislated in this area without authorizing damages for a Fourth Amendment violation.

            The Fourth Circuit next held that the plaintiffs failed to state a claim under the Electronic Communications Privacy Act (“ECPA”) because the defendants in question were entitled to qualified immunity. In doing so, the Fourth Circuit declined to review the district court’s interpretation of the ECPA and instead held that qualified immunity was appropriate since there was a “lack of settled precedent supporting the plaintiffs’ ECPA claim.”

            Finally, the Fourth Circuit upheld dismissal of the complaint against certain Verizon entities and John Doe agents. Because the plaintiffs had failed to identify or serve any of the John Doe agents, had failed to prosecute their claims, and had failed to respect court orders, the Fourth Circuit held there was no abuse of discretion for the district court to dismiss the complaint as to these final parties.

Brundle v. Wilmington Trust, N.A.

            In this civil case, the Fourth Circuit affirmed a judgment finding that an Employee Stock Ownership Plan (“ESOP”) trustee breached its fiduciary duties under the Employee Retirement Income Security Act of 1974 (“ERISA”). The Fourth Circuit noted that, under ERISA, there need not be proof that the fiduciary acted in bad faith, but only that the fiduciary failed to act solely in the interest of the ESOP participants. The defendant primarily challenged the district court’s findings of fact during the bench trial, but the Fourth Circuit held that there was no clear error in those findings. The Fourth Circuit also held that there was no clear error in the district court’s damages award.

Photo by Airman 1st Class Aspen Reid.

By Henry O. Hilston

The Honorable William W. Wilkins, who goes by Billy in legal circles, was born in 1942 in Anderson, South Carolina.[1]  He grew up in Greenville, South Carolina, where his father worked as an attorney.[2]  He enjoyed watching his father try cases in the county courthouse, which led to his childhood resolve to become an attorney in the future.[3]  He went on to get a B.A. from Davidson college in 1964, and then he immediately went to law school at the University of South Carolina, graduating with a J.D. in 1967.[4]  That same year, Wilkins entered the military.  He served two years on active duty in the Army, attaining the rank of captain.[5]  In 1969, he rotated to the U.S. Army Reserves, serving from 1969­­-83 and rising to the rank of Lieutenant Colonel.[6]

Upon leaving active service in the Army, Wilkins’ legal career began in full.  From 1969-70, he clerked for Clement Haynsworth, who was then the Chief Judge for the Fourth Circuit Court of Appeals.[7]  After that term, he served as a legal assistant to Strom Thurmond, United States Senator, from 1970-71.[8]  Wilkins then entered private practice in Greenville, South Carolina.[9]  From 1974-81, concurrent with his private practice, he also served as the Solicitor (District Attorney) of the 13th Judicial Circuit of South Carolina.[10]

On July 9, 1981, President Ronald Reagan nominated Wilkins to a seat on the United States District Court for the District of South Carolina that Robert W. Hemphill had vacated; the Senate confirmed his appointment on July 20, 1981.[11]  Judge Wilkins was President Reagan’s first federal judicial appointment.[12]  Wilkins did not spend long at the District Court level.  On June 2, 1986, President Reagan elevated Judge Wilkins to the Fourth Circuit where he would fill a seat vacated by Emory M. Sneeden, and the Senate confirmed his elevation on June 13, 1986.[13]  From 2003-2007, he served as Chief Justice of the Fourth Circuit and was a member of the Judicial Conference of the United States.[14]  He kept that position until July 1, 2007, when he chose to assume senior status.  His service was officially terminated in 2008 because of his retirement.[15]

Those accomplishments by themselves cut an impressive figure.  Concurrent with his district and appellate court service, however, Wilkins also served as the first chairman of the United States Sentencing Commission from 1985-94.[16]  Under Wilkins’ guidance, the Commission developed and promulgated sentencing guidelines for the federal judicial system.  Before that reform, there was little uniformity in federal sentencing, arguably because there was too much discretion available to judges.[17]  Speaking to the House Judiciary after the first release of the structured sentencing guidelines, he stated that the goal was not to make something “perfect” but rather something that would “bring greater certainty and fairness” to sentencing in federal court.[18]  Wilkins left his mark on the federal judicial system in more ways than serving as a judge.

Wilkins’ concurrent service on the Commission helps elucidate some of the opinions that he authored during his tenure on the Fourth Circuit.  In United States v. Hughes, for instance, Wilkins penned the majority opinion that held, among other things, that it was plain error for a district court judge to impose a sentence based on judge-found facts in excess of the maximum allowed based on the facts found by the jury.[19]  Likewise, in United States v. White, Wilkins wrote the majority opinion, holding that a district court committed plain error in treating the sentencing guidelines as mandatory, but that such treatment did not affect the defendant’s substantial rights.[20]  These two opinions show how Wilkins continued to rein in judicial discretion in sentencing, while simultaneously permitting some latitude to judges in how they handle that critical phase of adjudication.

Of course, Judge Wilkins is not the type of person to remain still for long.  After retiring from the Fourth Circuit, he has returned to private practice and is currently employed by Nexsen Pruet at the Greenville office.[21]  He leads the firm’s White-Collar Criminal Defense, Shareholder Litigation/Corporate Compliance, and Appellate Advocacy practices.[22]  This work keeps Wilkins in the courtroom, though he is now back on the side opposite the bench where he first began his legal career.

[1] Wilkins, William Walter, Fed. Jud. Ctr., (last visited Feb. 11, 2019).

[2] Greenville Journal Staff, The Life and Trials of William Walter Wilkins, Greenville J. (May 27, 2011),

[3] Id.

[4] Wilkins, William Walter, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] William W. Wilkins, Nexsen Pruet, (last visited Feb. 11, 2019).

[13]Wilkins, William Walter, supra note 1.

[14] Id.

[15] Id.

[16] Brent E. Newton & Dawinder S. Sidhu, The History of the Original United States Sentencing Commission, 1985—1987, 45 Hofstra L. Rev. 1167, 1188 (2017).

[17] Id. at 1169-70.

[18] Id. at 1302.

[19] 401 F.3d 540 (4th Cir. 2005).

[20] 405 F.3d 208 (4th Cir. 2005).

[21] William W. Wilkins, supra note 12.

[22] Id.

By Kayla West and Jim Twiddy

Mark Lawlor v. David Zook

In this criminal case, the Appellant sought a review of his death sentence. A Virginia state court sentenced the Appellant to death after his conviction for capital murder. During his sentencing, the sentencing jury found that the Appellant would likely continue to commit criminal acts of violence, making him a continuous threat to society. The state court had excluded relevant testimony of a qualified witness who would have explained that the Appellant represented a low risk for committing acts of violence while incarcerated. The Appellant filed the instant federal petition for review of his death sentence which was dismissed by the district court. The Fourth Circuit granted certificate of appealability on three issues, including whether it was a constitutional error for the trial court to exclude expert testimony about the Appellant’s risk of future violence in prison. The Fourth Circuit concluded that the state court’s exclusion of the expert testimony was an unreasonable application of the established federal law because the evidence was potentially mitigating, and such evidence may not be excluded from the sentencer’s consideration. The Fourth Circuit relied on the Supreme Court’s long recognized principle that a capital sentencing body must be permitted to consider any admissible and relevant mitigating information in determining whether to assign the defendant a sentence less than death. Thus, the district court’s decision was reversed and remanded.


Sierra Club v. U.S. Army Corps of Engineers

In this civil case, petitioners asked for the Court to set aside respondent’s verification and reinstated verification that construction of the Mountain Valley Pipeline can proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 (“NWP 12”), rather than an individual permit. The 42-inch diameter natural gas Pipeline proposes to run 304 miles through parts of Virginia and West Virginia, crossing several federal water bodies. Because the construction of the Pipeline will involve the discharge of fill material into federal waters, the Clean Water Act requires that Mountain Valley Pipeline, LLC (certified to construct and operate the Pipeline) obtain clearance from the U.S. Army Corps of Engineers’ before beginning construction. Mountain Valley elected to pursue the general permit approach to obtain Corps clearance under NWP 12 which requires that all terms and conditions are satisfied before valid authorization occurs. Additionally, Mountain Valley must provide the Corps with a certification from the state in which the discharge originates. Under NWP 12, West Virginia’s certification imposes additional “special conditions” which the Corps must make regional conditions. However, the Corps decided to substitute its Special Condition 6 “in lieu of” NWP 12’s Special Condition C (imposed by West Virginia). The Fourth Circuit held that the Corps lacked the statutory authority to substitute its own special conditions “in lieu of” West Virginia’s special conditions. Further, the State Department for West Virginia waived Special Condition A, imposed as part of its certification of NWP 12. However, the Fourth Circuit held that a state cannot waive a special condition previously imposed as part of a nationwide permit absent completion of the notice-and-comment procedures required by the Clean Water Act under Section 1341(a)(1). Accordingly, the Fourth Circuit vacated, in their entirety, the verification and reinstated verification authorizing the Pipeline’s compliance with NWP 12.


US v. Terry

In this criminal case, Terry appealed his conviction of possessing methamphetamine with the intent to distribute. The key issue in this appeal was whether the district court erred in denying Terry’s motion to suppress evidence seized during a traffic stop. The stop was conducted through the illegal use of a GPS search. The district court asserted that because Terry relinquished control over the car, he lacked standing to challenge the GPS search. The Fourth Circuit concluded that the government agents committed a flagrant constitutional violation when they secretly placed a GPS on Terry’s car without a warrant, and that the discovery of the evidence seized during the traffic stop was not sufficiently attenuated from the unlawful GPS search to purge the effect of the unlawful search because the GPS and discovery of evidence were so closely tied. Additionally, the Fourth Circuit concluded that Terry did not lose his standing to assert a constitutional violation because when the tracker was placed, he was legitimately in possession of the vehicle. The Fourth Circuit reversed the holding of the district court, and vacated Terry’s conviction.


US v. Brown

In this criminal case, Brown asserted that a district court erred in calculating his criminal history category because the court added two points to Brown’s criminal history score based on a prior Virginia state conviction for which Brown received a suspended sentence. Brown’s suspended sentence was conditioned on a period of good behavior for ten years upon release from the prior Virginia State conviction. He was released in July of 2009, meaning that at the time of the present case, Brown had not completed his period of ten years good behavior. The district court concluded that a period of good behavior constitutes a criminal justice sentence, making it relevant to a defendant’s criminal history score. Brown asserted that a period of good behavior is not a criminal justice sentence because it lacks a custodial or supervisory component. The Fourth Circuit concluded that during a period of good behavior, Brown was still subject to the authority of the state. This operated as a supervisory component significant enough to constitute a criminal justice sentence. Because Brown committed the present offense while under a criminal justice sentence, the additional two points to his criminal history score were correctly added. The Fourth Circuit affirmed.

By Samuel D. Gilleran and Nicholas T. Pappayliou


On August 22, 2018, the Fourth Circuit decided United States v. Hodge,[1] clarifying whether the government may ask a district court to designate a conviction as an Armed Career Criminal Act (“ACCA”) predicate conviction, when that conviction was not so designated during the initial sentencing.  In 2011, Garnett Hodge pleaded guilty to possession of crack cocaine with intent to distribute and possession of a firearm as a felon.[2]  Because of his prior convictions, Mr. Hodge was eligible for a “sentence enhancement” under the ACCA.[3]  The ACCA states that a person convicted of possession of a firearm as a felon, who also has three prior “violent felony” or “serious drug offense” convictions, must receive a mandatory minimum of fifteen years in prison.[4]  Mr. Hodge’s Presentence Investigation Report (“PSR”) designated exactly three qualifying, or ACCA predicate, convictions: a July 1992 felony drug possession with intent to distribute, a July 1998 felony drug possession with intent to distribute, and three counts of misdemeanor reckless endangerment in 1998.[5]  The drug possession felonies qualified as “serious drug offense[s],” and – at the time – the misdemeanor reckless endangerment qualified as a “violent felony.”[6]  But another section of Mr. Hodge’s PSR, labeled “criminal history,” enumerated seven additional convictions.[7]  One of those convictions, a March 1992 felony cocaine possession with attempt to distribute, could have been designated in the PSR as an ACCA predicate conviction, as it was identical to the other cocaine possession charges that were so designated.[8]  But, for some reason, the Probation Office that prepared the PSR failed to designate the March 1992 felony as a qualifying predicate conviction, and the Government did not object to the Probation Office’s failure to so designate that conviction.[9]

After his plea, Mr. Hodge was sentenced to 188 months of imprisonment on the cocaine charge and 204 months of imprisonment on the firearm charge, running concurrently.[10]  In 2014, Mr. Hodge filed his first motion to vacate his sentence in district court, but it was dismissed as untimely.[11]  In 2015, however, the United States Supreme Court “substantially narrowed” the ACCA’s definition of a “violent felony” in Johnson v. United States[12] (referred to as Johnson II).[13]  Specifically, Johnson II struck down the ACCA’s “residual clause,” which classified “conduct that presents a serious potential risk of physical injury to another” as a “violent felony” for purposes of sentence enhancement.[14]  The Supreme Court then declared in Welch v. United States[15] that Johnson II would apply “retroactively on collateral review.”[16]  Pursuant to those rulings, the Fourth Circuit gave Mr. Hodge permission to file another motion to vacate his sentence.[17]

The Parties’ Arguments and the District Court’s Ruling

Mr. Hodge asserted that his reckless endangerment conviction was only an ACCA predicate conviction because of the now-unconstitutional residual clause.[18]  Because the reckless endangerment conviction no longer qualified as an ACCA predicate conviction, he only had two predicate convictions and the mandatory minimum of fifteen years did not apply.[19]

The Government agreed with Mr. Hodge that the reckless endangerment conviction no longer qualified as an ACCA predicate conviction, and it initially recommended to the district court that Mr. Hodge be resentenced.[20]  But ten days after filing papers agreeing with Mr. Hodge, the Government evidently discovered the March 1992 drug conviction could have served as a predicate conviction, if it had been so designated.[21] The Government therefore chose to argue that Mr. Hodge had four predicate convictions, and that the failure to designate the March 1992 conviction on the PSR notwithstanding, that conviction could be substituted for the reckless endangerment conviction that no longer qualified as an ACCA predicate.[22]  In order to excuse its failure to object to the Probation Office’s non-designation of the March 1992 conviction, the Government claimed that it would have been superfluous to designate more than three convictions.[23]

The district court sided with the Government and denied Mr. Hodge’s motion, ruling that courts “should ordinarily examine the defendant’s entire criminal record” when evaluating eligibility for ACCA sentence enhancement.[24]  The district court pointed to Mr. Hodge’s three convictions that could have been listed as ACCA predicates, although only two were so listed.[25]  In the district court’s view, because Mr. Hodge had the requisite three predicate convictions, it was of no consequence that the Government had failed to designate one of them in the PSR.[26]  Mr. Hodge then appealed to the Fourth Circuit, asking whether the Government would indeed be permitted to substitute the “potential ACCA predicate conviction that was listed in [Mr. Hodge’s] PSR but never designated nor relied upon as an ACCA predicate.”[27]

The Fourth Circuit’s Holding

Chief Judge Gregory, writing for the court, held that the Government was not permitted to substitute the undesignated potential ACCA predicate conviction for the conviction that no longer qualified.[28]  The Government could not substitute the undesignated conviction because it “failed to provide Hodge with sufficient notice of its intent to use this conviction to support an ACCA enhancement.”[29]  Defendants are entitled to “adequate notice of . . . the convictions that may support [an ACCA] enhancement,”[30] so that they may “contest the validity or applicability of the prior convictions upon which [the] statutory sentencing enhancement is based.”[31]  Applying the canon of expressio unius est exlusio alterius, the Government had indicated “an intentional exclusion” of the March 1992 conviction because the PSR expressly identified the three other convictions as ACCA predicates.[32]  And because the Probation Office did not designate the March 1992 conviction as an ACCA predicate and the Government did not object to that failure, if Mr. Hodge had wanted to challenge “the validity or applicability” of that conviction, he himself would have had to draw attention to it, an anomaly that the court said “would undermine the adversarial process.”[33]

The court rejected the Government’s contention that designating more than three predicate convictions would have been superfluous by noting that “the U.S. Probation Office often designates more than three convictions as ACCA predicates,”[34] and the Government’s inclusion of two convictions for felony possession of cocaine with intent to distribute but exclusion of the third conviction for the same crime militated the conclusion that the “exclusion was deliberate.”[35]

The court also noted that when a defendant fails to timely contest the designation of a crime as an ACCA predicate, the issue is waived on collateral review.[36]  In the court’s view, it is only fair to require the Government to meet the same standard.[37]  Citing a recent case in the First Circuit, the court recognized that “it is unfair to allow parties to surprise one another with new argument that they did not make at the appropriate procedural juncture.”[38]  In Mr. Hodge’s case, “the appropriate procedural juncture” was at sentencing.[39]  If the Government ever wanted to rely on the March 1992 conviction, it should have objected to the PSR “during the sentencing proceedings.”[40]  Because of the unfairness that the opposite rule would work on the defendant, the court held “that the Government must identify all convictions it wishes to use to support a defendant’s ACCA sentence enhancement at the time of sentencing.”[41]

This decision comports with the Eleventh Circuit’s holding in Bryant v. Warden, FCC Coleman–Medium.[42]  In that similar situation, a defendant had three designated ACCA predicate convictions, but a change in the law left one of those designations invalid; meanwhile, the Government urged that court to substitute a previously undesignated burglary conviction as the necessary third ACCA predicate conviction.[43]  The Eleventh Circuit refused to do so, relying on the Government’s failure to object to the district court’s non-designation of that conviction as a predicate conviction.[44]  Similarly, in United States v. Petite,[45] the Eleventh Circuit flatly stated, “The government cannot offer for the first time on appeal a new predicate conviction in support of an enhanced ACCA sentence.  The argument should have been made prior to or during sentencing. . . .”[46]


When the Government fails to designate a potential ACCA predicate conviction as such, it may not then seek it so designated in later proceedings to support an ACCA enhancement.[47]  The Fourth Circuit therefore reversed the district court’s denial of Mr. Hodge’s motion to vacate his sentence and remanded for resentencing.[48]  As of this writing, the resentencing hearing has not yet been scheduled.

[1] 902 F.3d 420 (4th Cir. 2018).

[2] Id. at 423.

[3] Id.

[4] Id. at 423–24.

[5] Id. at 424.

[6] Id.

[7] Id.

[8] Id. at 424–25.

[9] Id. at 426.

[10] Id. at 424.

[11] Id.

[12] 135 S. Ct. 2551 (2015).

[13] Hodge, 902 F.3d at 424–25.

[14] Id. at 425.

[15] 136 S. Ct. 1257 (2016).

[16] Hodge, 902 F.3d at 425.

[17] Id. at 424.

[18] Id. at 425.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id. at 428 n.4.

[24] Hodge v. United States, No. 1:16-CV-781, 2016 WL 7480397, at *3 (M.D.N.C. Dec. 29, 2016).

[25] Id. at *2.

[26] Id.

[27] Hodge, 902 F.3d at 426.

[28] Id. at 427.

[29] Id.

[30] Id. (quoting United States v. O’Neal, 180 F.3d 115, 125–26 (4th Cir. 1999)).

[31] Id. (quoting United States v. Moore, 208 F.3d 411, 414 (2d Cir. 2000)).

[32] Id. at 427–28.

[33] Id. at 428.

[34] Id. at 428 n.4.

[35] Id. at 428.

[36] Id. at 429.

[37] Id.

[38] Id. (quoting United States v. Fernandez-Jorge, 894 F.3d 36, 54 n.16 (1st Cir. 2018)).

[39] Id.

[40] Id.

[41] Id. at 430.

[42] 738 F.3d 1253, 1256–57 (11th Cir. 2013), overruled on other grounds by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017).

[43] Id. at 1279.

[44] Id.

[45] 703 F.3d 1290 (11th Cir. 2013), abrogated on other grounds by Johnson II, 135 S. Ct. 2551.

[46] Id. at 1292 n.2.

[47] Hodge, 902 F.3d at 430.

[48] Id. at 432.

By: Lanie Summerlin

Henderson v. Bluefield Hosp. Co.

In this civil appeal, the National Labor Relations Board (“NLRB”) appealed the District Court’s refusal to grant preliminary injunctive relief under section 10(j) of the National Labor Relations Act. The NLRB sought preliminary injunctions against two hospitals until NLRB agency adjudication of a complaint filed against the hospitals by the National Nurses Organization Committee (“Union”) was complete. The injunctions would have required the hospitals to bargain with the Union in good faith, and NLRB argued the injunctions were necessary to protect the nurses’ fundamental right to be represented through collective bargaining. The District Court denied these injunctions because it ruled the NLRB failed to prove this type of relief was necessary to preserve the remedial power of the NLRB. The Fourth Circuit affirmed the District Court’s decision and emphasized that the NLRB has the burden of proving irreparable harm absent the injunction. Ultimately, the Fourth Circuit held the NLRB failed to meet this burden because its theories of harm were speculative; the NLRB failed to explain why its own forms of relief available after completion of the agency process would be insufficient.

U.S. v. Bell

In this criminal appeal, Quintin Bell (“Bell”) challenged his convictions of four counts of drug trafficking and one count of illegal possession of a firearm. Bell argued the District Court erred in (1) denying his motion to suppress statements he made to police officers who were executing a search warrant on his residence; (2) admitting evidence of another arrest of Bell under Federal Rules of Evidence Rule 404(b); (3) denying Bell’s motion to disclose the identity of a confidential informant; and (4) enhancing Bell’s sentence to 480 months’ imprisonment due to his prior convictions. The Fourth Circuit held the District Court did not err in denying Bell’s motion to suppress his statements because Bell was not being interrogated at the time the statements were made; the officer’s question was directed to Bell’s wife and Bell voluntarily answered. The Fourth Circuit also held the District Court did not abuse its discretion by admitting evidence of Bell’s other arrest because this evidence’s relevance to Bell’s motive and intent was not substantially outweighed by the risk of unfair prejudice to Bell. In regards to the confidential informant, the Fourth Circuit held the District Court did not err in refusing to disclose the informant’s identity because Bell failed to prove the informant’s identity was necessary to establish his own guilt or innocence. The Fourth Circuit also reviewed Bell’s criminal record and held that his 480 month sentence was appropriate due to the nature of the crimes on his record. Overall, the Fourth Circuit affirmed Bell’s convictions. Judge Wynn dissented; he argued the Fourth Circuit should have remanded the issue of Bell’s statements to police officers to the District Court for a determination of whether Bell perceived himself as being interrogated. Judge Wynn also argued that Bell’s prior convictions do not qualify as predicate convictions to enhance his sentence.

VanDevender v. Blue Ridge of Raleigh

This civil appeal focuses on the District Court’s decisions as to two judgment as a matter of law (“JMOL”) motions filed by Blue Ridge of Raleigh (“Blue Ridge”). Blue Ridge operated a long-term skilled nursing facility in Raleigh, North Carolina, but consistently failed to meet state-mandated staffing levels and supplies requirements. The estates of three deceased ventilator-dependent patients at Blue Ridge brought claims of wrongful death nursing home malpractice against Blue Ridge. The jury awarded compensative and punitive damages to each Plaintiff. However, the District Court granted Blue Ridge’s motion for JMOL as to all three Plaintiffs’ punitive damages awards because it ruled the Plaintiffs had not produced sufficient evidence. The District Court denied Blue Ridge’s motion for JMOL as to Plaintiff Jones’s compensatory damages. Plaintiffs appealed the JMOL as to their punitive damages, and Blue Ridge cross-appealed the denial of JMOL as to Plaintiff Jones’s compensatory damages. The Fourth Circuit held the District Court erred in granting JMOL as to the Plaintiffs’ punitive damages. Based on the record, the Fourth Circuit held that a jury could determine Blue Ridge’s staffing policies and managerial decisions constituted willful or wanton conduct. It held that the District Court erred by requiring the Plaintiffs to prove malice, which is not required for willful or wanton conduct. The Fourth Circuit emphasized that Blue Ridge failed to follow state and federal laws on staffing and intentionally failed to follow its own patient safety policies. Additionally, the Fourth Circuit affirmed the District Court’s denial of Blue Ridge’s JMOL motion as to Plaintiff Jones’s compensatory damages. There was sufficient evidence that Blue Ridge breached the standard of care it owed to Plaintiff Jones by being understaffed without proper supplies. The Fourth Circuit remanded with instructions for the District Court to enter punitive damages for all three Plaintiffs consistent with North Carolina’s statutory limits.

By Ali Fenno

On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case of United States v. Lara.  In Lara, the Fourth Circuit addressed whether the district court violated the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination when, during a sentencing hearing, it considered statements the defendant, Juan Lara (“Lara”), made while participating in a compulsory Sex Offender Treatment Program (“Treatment Program”) that had been a condition to his probation. After examining the knowing and voluntary nature of Lara’s consent to his probation terms and the voluntary nature of the statements Lara made during the Treatment Program, the Fourth Circuit concluded that the district court did not err in considering the self-incriminating statements.

Factual and Procedural Background

In February 2008, Lara was convicted for the aggravated sexual battery of a mentally incapacitated victim under Virginia Code Section 18.2-67.3(A)(2) and sentenced to 20 years’ imprisonment with 17 years suspended. In addition, upon his release from confinement, Lara was to serve 20 years’ supervised probation and was required to complete a Treatment Program, allow the Treatment Program provider to have “unrestricted communication with the probation and parole department,” and “submit to any polygraph . . . deemed appropriate by [his] supervising officer.” Lara acknowledged and consented to these conditions before his release by signing a form that listed the conditions.

Lara’s probationary period started immediately upon his release in December 2009. He was referred to a Treatment Program, Flora Counseling Services Corporation (“Flora), and met with one of Flora’s licensed clinical social workers for an interview in April 2010. During the interview, Lara detailed his past sexual conduct with minors, commission of forcible sexual assaults, and involvement in two murders. He later confirmed these incidents in a polygraph examination and signed a written statement describing the incidents. Then, in July 2010, he signed a document entitled “Sex Offender Program Acknowledgment of Confidentiality Waiver” to acknowledge that all information he relayed to Flora’s therapists and group leaders “is not privileged or private” and that Lara “waive[d] any and all such rights of confidentiality which may exist by statute or rule of law.”

Lara successfully completed Flora’s Treatment Program, but in March 2014, in violation of his conditions of probation, he moved from Virginia to Texas without notifying his probation officer or updating his registration with the Virginia State Police’s Sex Offender and Crimes Against Minors Registry. Several months later, he was arrested and indicted by a federal grand jury for violating the Sex Offender Registration and Notification Act (SORNA).

Lara pleaded guilty to the SORNA violation and filed a motion to exclude from consideration at sentencing the statements he made during Flora’s Treatment Program interview that detailed his past criminal incidents. The district court denied his motion, holding that he had voluntarily waived any psychotherapist-patient privilege and that the Fifth Amendment did not protect him from the government’s use of voluntary disclosures of incriminating information. The court then concluded that Lara more likely than not committed the crimes he admitted to during Flora’s Treatment Program interview, and sentenced him to 120 months’ imprisonment.

Issues on Appeal and Standard of Review

The first issue on appeal was whether Lara knowingly and voluntarily waived the psychotherapist-patient privilege. The second issue was whether the incriminating statements Lara made during his intake interview invoked his Fifth Amendment privilege against self-incrimination.  A district court’s determination of whether a privilege should be recognized is a mixed question of law and fact. Accordingly, the Fourth Circuit reviewed both issues de novo.

Waiver of the Psychotherapist-Patient Privilege

Lara first argued that he did not waive the psychotherapist-patient privilege because he was “compelled to participate” in Flora’s Treatment Program. In rejecting this argument, the Fourth Circuit first noted that the psychotherapist-patient privilege is strictly construed, and a defendant has the burden of showing that he did not waive the privilege by knowingly and voluntarily relinquishing it. The court then recognized that, especially when the probationary period is used as an alternative to incarceration, courts administering probation as a punishment may deprive a criminal offender of certain freedoms. The Fourth Circuit further identified multiple courts that had found a criminal defendant’s consent to court-imposed conditions of release to be voluntary despite the alternative of incarceration.

Here, Lara chose to agree to the terms of his supervised probation as an alternative to incarceration. Those terms explicitly authorized Treatment Program providers to have “unrestricted communication” with the state probation and parole department as an alternative to incarceration. Accordingly, the Fourth Circuit concluded that the alternative of incarceration did not eradicate the voluntary nature of Lara’s consent to the terms of his probation, and held that Lara waived any psychotherapist-patient privileges that may have applied to the incriminating statements he made while participating in Flora’s Treatment Program.

Failure to Invoke Fifth Amendment Privilege

Next, Lara argued that his Fifth Amendment privilege against self-incrimination was violated because the probation conditions required him to disclose incriminating information. The Fourth Circuit rejected this argument as well. It first noted that the Fifth Amendment privilege “generally is not self-executing” and that a defendant “ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.” But it then looked to Minnesota v. Murphy, where the United States Supreme Court recognized that the threat of revocation of probation could “trigger self-executing Fifth Amendment protections.” However, this could only occur when direct evidence indicated that the defendant only confessed because it was nearly certain that his silence would cause probation to be revoked.

The Fourth Circuit then examined the factual record and could not find any direct evidence that Lara made the incriminating statements during Flora’s Treatment Program interview under the threat of revocation of his probation. Indeed, the state court could not have revoked his probation if he had asserted his Fifth Amendment privilege during the interview. Thus, the Fourth Circuit held that the statements were voluntarily made and did not invoke Lara’s Fifth Amendment privilege against self-incrimination.


Because Lara’s incriminating statements were knowingly and voluntarily made, the Fourth Circuit concluded that he waived the psychotherapist-patient privilege and did not invoke the Fifth Amendment privilege against self-incrimination.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it considered at the sentencing hearing the incriminating statements Lara made during Flora’s Treatment Program.


By John Van Swearingen

On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Winston. Robert Winston (“Appellant”), currently serving a 275-month sentence for a federal firearms charge from 2002, filed a motion for post-conviction relief under 28 U.S.C. § 2255 (2012) in the United States District Court for the Western District of Virginia. Appellant asserted the sentencing enhancements applied to his case were invalidated by Johnson v. United States (“Johnson II“), a 2015 Supreme Court decision striking part of the Armed Career Criminal Act (“ACCA”) and narrowing the scope of “violent felonies” included thereunder. No. 13–7120, slip op. at 15 (U.S. June 26, 2015). The district court rejected Appellant’s arguments. On appeal, the Fourth Circuit reversed the district court, holding Virginia’s common law robbery no longer qualified as a “violent felony” under the ACCA, and remanded the case for further proceedings.

Facts and Procedural History

In 2002, Appellant was sentenced to 275 month’s imprisonment for a federal firearms charge. Appellant’s sentence was enhanced under the ACCA, which mandates a fifteen-year minimum sentence for any person convicted of a firearms offense who has three prior “violent felonies” or serious drug offenses. At the time, the ACCA had categories of “violent felonies:” those established under the statute’s force clause and those under the statute’s residual clause, which included burglaries, arsons, and any other conduct that posed a serious risk of injury to another person. Appellant had four prior then-qualifying convictions: (1) rape under the Uniform Code of Military Justice (“UCMJ”), (2) common law robbery in Virginia, (3) possession of cocaine with intent to distribute in Virginia, and (4) a federal conviction for distribution of cocaine base.

After the Supreme Court published its 2015 opinion in Johnson II, which limited the definition of “violent felony” under the ACCA by striking the residual clause for vagueness, Appellant filed the instant action asserting that neither the UCMJ rape conviction nor the Virginia robbery conviction satisfied the new definition of “violent felony.” Without the ACCA sentencing enhancements, Appellant’s maximum sentence in 2002 would have been ten years, meaning Appellant would be immediately available for release.

The district court has not yet addressed Appellant’s rape conviction. The matter before the Fourth Circuit focused solely on Appellant’s common law robbery conviction. The government argued two points to challenge Appellant’s motion for relief. First, the government argued that, since Appellant could not prove that his robbery conviction was defined a “violent felony” under the now-stricken residual clause of the ACCA, Appellant did not rely on a new rule of constitutional law and was thus foreclosed from requesting relief. Second, the government argued that common law robbery still satisfied the limited definition of “violent felony” under the ACCA.

The district court disagreed with the government’s procedural assertion but agreed with the government’s substantive assertion, and it accordingly held the Virginia crime of common law robbery was a “violent felony” under the ACCA. Appellant timely filed the instant appeal.

Appellant Relied on a New Rule of Constitutional Law for the Motion for Post-Conviction Relief.

28 U.S.C. §§ 2244(b)(2)(A), 2244(b)(4) (2012) requires that motions for post-conviction relief rely on a new rule of constitutional law. The record never established that Appellant’s common law robbery conviction was only considered for enhancement by the sentencing court under the residual clause of the ACCA struck in Johnson II. Thus, the government argued, Appellant could not show reliance on the holding in Johnson II and was, therefore, barred from moving for relief.

The Fourth Circuit agreed with the district court that the sentencing court’s failure to disclose the clause or clauses of the ACCA under which it considered Appellant’s convictions could not be fatal to Appellant’s claim. The Fourth Circuit held that any movant seeking post-conviction relief, where that movant’s conviction may have been enhanced based on the now-void residual clause struck in Johnson II, may challenge their sentence. To hold otherwise, according to the Fourth Circuit, would punish defendants for a sentencing court’s discretion in failing to disclose the clauses of the ACCA under which it evaluated the defendant’s enhancements.

The Virginia Crime of Common Law Robbery Is Not a Violent Crime under the ACCA

Appellant challenged the district court’s holding that the Virginia crime of common law robbery was a “violent felony” under the ACCA. Since the residual clause was struck from the ACCA, all violent felonies must meet the definition established in the statute’s force clause, 18 U.S.C. § 924(e)(2)(B)(i) (2012), which requires an element of “use, attempted use, or threatened use of physical force against the person of another.” The force clause was clarified in the Supreme Court’s 2010 decision in United States v. Johnson (“Johnson I”), which defined “physical force” in the statute to mean only “violent force” that could cause injury or pain. No. 08–6925, slip op. at 6 (U.S. Mar. 2, 2010).

The Fourth Circuit noted that the Supreme Court’s decision in Moncrieffe v. Holder required the reviewing court to consider the “minimum conduct criminalized” by a state criminal law. No. 11–702, slip op. at 5 (U.S. Apr. 23, 2013). In Virginia, a common law robbery conviction can be sustained where a defendant steals the property of another by “violence or intimidation.” Pierce v. Commonwealth, 138 S.E.2d 28, 31 (Va. 1964). The “violence” element of the crime can be satisfied by the bare minimum of physical force needed to overcome a victim’s resistance. Maxwell v. Commonwealth, 183 S.E. 452, 454 (Va. 1936).

A conviction for common law robbery could therefore be sustained where only a minimum amount of “violence” is used – for example, turning someone’s body in order to grab their purse. Injurious “violent force” is not an element of the crime. The crime is therefore not a “violent felony” for sentencing enhancements under the ACCA. Thus, the Fourth Circuit reversed the district court’s holding and held the Virginia crime of common law robbery did not meet the standard set by the force clause of the ACCA, as clarified in Johnson I.


The Fourth Circuit affirmed the district court’s holding regarding the procedural matter but reversed the district court’s substantive holding regarding the status of common law robbery as a “violent felony.” Thus, the district court’s judgment was vacated, and the case was remanded for further consideration regarding Appellant’s rape conviction under the UCMJ.

By Kelsey Hyde

Today, the Fourth Circuit issued a published opinion, In re William Robert Gray, Jr., deciding on a motion for authorization to file a second or successive application for a writ of habeas corpus. The movant (“Gray”) had sought the Court’s approval to file a second petition under 28 U.S.C. § 2254, as would be necessary under 28 U.S.C. §2244(b), but the Fourth Circuit held this action was unnecessary based on finding that Gray’s petition was in fact a “first challenge” to a new or intervening judgment. By way of this ruling, the Fourth Circuit joined the Third, Sixth, Ninth, and Eleventh Circuit Courts in their treatment of habeas petitions filed after a new, intervening judgment as not second or successive within the meaning of §2244(b).

Factual Background & Procedural History of Gray’s Claims

            In 1993, Gray was convicted in North Carolina of first-degree murder and sentenced to death. Gray then filed a 28 U.S.C. §2254 petition—an application for a writ of habeas corpus for a person in custody based on the judgement of a State court—in federal district court, which was dismissed. However, the Fourth Circuit reversed in part, finding that Gray’s counsel had been ineffective at his sentencing and ordering the district court to grant the writ of habeas corpus, unless the State were to afford Gary a new sentencing hearing within a reasonable period of time. When resentencing still had not occurred after five years, Gray filed his own pro se motions challenging both this delay and his underlying conviction, which were all denied by the district court and affirmed by the Fourth Circuit. Then, the State decided it would not seek the death penalty and finally resentenced Gray to life in prison. Gray then filed this motion under 28 U.S.C. § 2244(b) for approval to file a second or successive § 2254 petition regarding his underlying criminal conviction.

Gray’s Contentions & Issue Presented to the Fourth Circuit

            Ultimately, Gray contended that the Fourth Circuit’s approval under § 2244(b) was not necessary because his resentencing acted as a new, intervening judgment, and therefore his petition was not “second or successive.” The issue for the Court’s consideration was whether, following a successful habeas petition regarding sentencing, Gray could then challenge his underlying conviction without triggering the “second or successive” requirements, and therefore not requiring court of appeals approval.

“Second and Successive Petitions” for Habeas Relief

            Per 28 U.S.C. §2244 and the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a petitioner incarcerated based on a State judgment cannot bring “second or successive” motions for habeas relief, and such claims shall be dismissed unless authorized by the appropriate court of appeals. §2244(b)(1), (3). However, authorization to file may be found unnecessary if the court of appeals determines that the petition in question is not in fact second or successive. Thus, a court must first determine whether a petition is second or successive, and only then if it is found to be second or successive should the court review the claim for satisfaction of the §2244(b) requirements. Magwood v. Patterson, 561 U.S. 320, 334-35 (2010). The Supreme Court in Magwood also emphasized that this second or successive distinction must be made with respect to the particular judgment being challenged, and resentencing a defendant is an “intervening judgment” such that a subsequent petition regarding this new sentencing would not be second or successive. Id. at 339, 342. However, the Court in Magwood only decided the issue in regards to another petition following a new sentencing judgment, and did not have occasion to determine whether this result also applied when the subsequent petition went to the defendant’s underlying conviction and adjudication of guilt, rather than sentencing. Id. at 342. The Third, Sixth, Seventh, Ninth, and Eleventh Circuits all had occasion to decide this precise issue, and all but one (the Seventh Circuit) determined that where a defendant received a new judgment as a result of a habeas petition relating to resentencing, a subsequent petition relating to their underlying conviction would not be considered “second-in-time” such that §2244(b) applied and required authorization. The issue presented in Gray’s claim had yet to be addressed by the Fourth Circuit.

Petition Not Considered “Second or Successive” Where Defendant Received Intervening Judgment on Sentencing But Now Seeks to Challenge Conviction

            The Fourth Circuit sided with the majority of the other circuits mentioned, and found that a movant in Gray’s situation—filing a habeas petition relating to underlying conviction after a successful habeas petition relating to sentencing—would not be submitting a second-in-time petition such that § 2244(b) would apply. The Court believed that, in the Magwood ruling, the Supreme Court made clear that an intervening judgment wholly resets the “habeas counter” at zero. Additionally, the Court also found this conclusion fitting in light of other Fourth Circuit precedent. See In re Wright, 826 F.3d 774 (4th Cir. 2016) (finding §2244(b)’s “second and successive” requirements did apply where prisoner’s first §2254 petition was dismissed, there was no intervening judgment, and the subsequent petition was challenging the same judgment yet merely setting forth an argument that had not been included in his original.) Moreover, the Court found this interpretation of Magwood to be consistent with the AEDPA’s goal of limiting the ability to make these successive petitions to these narrowly-defined circumstances, and further emphasized that this ruling in no way inhibits the other procedural safeguards that effectively bar excessive and redundant claims.

Fourth Circuit Orders District Court to Hear Petition as First Challenge, Not Second-in-Time

Because Gray’s §2254 petition was not second or successive, the Fourth Circuit found that review under §2244(b) was unnecessary, and thus directed the district court to hear the petition as a first challenge to this new judgment.

By John Van Swearingen

On January 24, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Agyekum. In the United States District Court for the Southern District of West Virginia, Kofi Agyekum (“Appellant”) plead guilty to two counts of structuring transactions, forfeiting over $2,300,000 in cash assets. Appellant challenged his sentence on two grounds: first, that sentencing enhancements based on involvement in a drug conspiracy were not “relevant conduct” with respect to his structuring convictions, and second, that sentencing enhancements based on his role as a pharmacist did not constitute “relevant conduct” with respect to the same convictions. Additionally, Appellant contended that the district court did not adequately ensure that he understood the procedural protections waived in his plea agreement. The Fourth Circuit affirmed Appellant’s sentence, holding that the Appellant’s involvement in a drug conspiracy and role as a pharmacist were within the scope of “relevant conduct.” Additionally, Appellant adequately understood the waivers of rights involved with his plea agreement.

Facts and Procedural History

In October, 2012, Appellant and his wife opened A+ Care Pharmacy in Barboursville, West Virginia. Appellant had total control over the operations of the business. Appellant’s wife was the licensed pharmacist, but she operated solely under Appellant’s control.

A confidential informant (“CI”) involved in a 2014 oxycodone trafficking ring investigation notified federal investigators that he had been filling prescriptions at A+ Care Pharmacy since November 2012. The CI made several controlled buys under supervision of the investigating agents in which the Appellant charged the CI an abnormally high price to fill out-of-state oxycodone prescriptions, doctored receipts to avoid leaving a paper trail, and discussed permitting the purchase of oxycodone without a prescription.

The investigation uncovered that Appellant was regularly filling ten to eighteen prescriptions a week for an organized drug ring headquartered in Kentucky with operations throughout the southeast United States. In spring of 2014, Appellant began selling oxycodone to the head of the organization without a prescription for around $15 per pill, and on one occasion, accepted a vehicle as payment. A+ Care Pharmacy was the third largest distributor of oxycodone in the state, and the drug comprised 70% of its business.

During this time, Appellant opened numerous bank accounts with several different financial institutions around town. Appellant used multiple accounts to avoid making cash deposits of $10,000 or more, which are subject to federal reporting. From March to August, 2014, Appellant deposited almost $470,000 in accounts at five banks, never depositing more than $10,000 into a single account on a single day.

In August, 2014, investigating agents executed a search warrant at A+ Care Pharmacy, seizing 51,000 pills of oxycodone, $68,000 in cash hidden in the pharmacy’s office, over $440,000 in cash stored in two safe deposit boxes, and 20 bank accounts owned by Appellant. Over $2,300,000 in assets were seized. Appellant was arrested.

Appellant was indicted with conspiracy to illegitimately distribute oxycodone, aiding and abetting the illegitimate distribution of oxycodone, forty counts of money laundering, and eleven counts of structuring cash transactions to avoid reporting.

After six months in jail, Appellant agreed to plead guilty to two counts of structuring transactions, forfeit over $2,300,000 in assets, and waive the procedural rights to any future challenges to the forfeiture. Appellant initially refused the plea agreement because of the forfeiture term, but eventually acknowledged to the district court that he understood the forfeiture term and accompanying waiver and accepted the plea deal.

Appellant’s sentencing report included multiple enhancements, including two to which Appellant objected: (1) enhancement based on Appellant’s role as a “leader” or “manager” within the criminal drug conspiracy pursuant to U.S.S.G. § 3B1.1(c), and (2) enhancement based on Appellant’s abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. Appellant’s objections centered on the assertion that neither the Appellant’s participation in the drug conspiracy nor his role managing a pharmacy constituted “relevant conduct” with respect to his transaction structuring convictions as outlined in U.S.S.G. § 1B1.3. Additionally, Appellant claims that the district court did not properly ensure that he understood the waiver of procedural protections involved in his plea deal.

A Leadership Position In A Conspiracy Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Conspiracy

Appellant’s argument centers on the belief that enhancements for “relevant conduct” are limited strictly to the behaviors associated with the convictions. Here, those convictions were for structuring bank transactions. Therefore, Appellant argues, the only applicable enhancements must arise from his conduct as a bank customer.

U.S.S.G. § 1B1.3(a) defines “relevant conduct” in the scope of sentencing more broadly than the conduct considered for criminal liability. See United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014). “Relevant conduct,” therefore, can include preparatory conduct, conduct to avoid detection, and other conduct related to the commission of the charged offense.

But for the illicit nature of Appellant’s participation in a drug trafficking conspiracy, Appellant would not have been receiving large cash payments on a regular basis. Additionally, Appellant only structured the transactions to avoid the reporting requirements that would have alerted federal authorities to the cash-intensive nature of his dealings. Therefore, the court noted, Appellant’s participation in the drug conspiracy was “relevant conduct” for the purpose of sentence enhancement. Thus, if Appellant was in a leadership position in the conspiracy, the sentence enhancement was appropriate.

Appellant was in sole operational control of A+ Care Pharmacy, and directed the pharmacy’s operations regarding the filling of out-of-state prescriptions, mandated the acceptance of cash only for oxycodone, set the price for oxycodone transactions based on risk, and advised members of the conspiracy to also acquire prescriptions for non-narcotic drugs in order to reduce suspicion. The district court, therefore, was proper in determining Appellant had a leadership role in the drug conspiracy, and the sentence enhancement was therefore appropriate.

Abuse Of The Position Of Pharmacy Manager Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Position

Appellant also challenges the sentence enhancement based on the abuse of his position managing a pharmacy – a position of public trust – because his role was not “relevant conduct” with respect to the structured transactions.

Having determined that the pharmaceutical operations were within the scope of “relevant conduct,” the court then considered whether Appellant was abusing a position of public trust. The purpose of the enhancement is to punish those “who take advantage of a position that provides them with the freedom to commit a difficult-to-detect wrong.” United States v. Brack, 651 F.3d 388, 393 (4th Cir. 2011). Additionally, the defendant must have some sort of relationship to his victim that involves trust. United States v. Caplinger, 339 F.3d 226, 236 (4th Cir. 2003).

Appellant exploited his position by purchasing oxycodone from a legal distributor at a level that exceeded his actual lawful uses. Additionally, Appellant took advantage of his position as both a husband and a manager to force his wife to fill prescriptions for a drug trafficking ring. Appellant doctored records to conceal his activities from the West Virginia Board of Pharmacy. Thus, Appellant was using his unique position managing a pharmacy in order to facilitate the drug trafficking operations – “relevant conduct” underlying the structured transactions.

Appellant Fully Understood His Waiver Of Rights With Respect To Forfeiture

Appellant contended that the district court failed to ensure that he fully understood the rights he waived with respect to his asset forfeiture. However, the record on appeal included several exchanges in open court wherein Appellant (1) claimed multiple times to understand the terms of the plea agreement, (2) contested the plea agreement because he did not agree to the scope of the forfeiture term, and (3) subsequently agreed to the forfeiture term and plea agreement after discussing his situation with his lawyer. Therefore, Appellant’s assertion was wholly unsupported by the record.


The Fourth Circuit affirmed both challenged sentencing enhancements and denied Appellant’s challenge to his waiver of rights regarding the forfeiture term of the plea agreement.

By: Kristina Wilson

On Monday, January 30, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Dozier. The Fourth Circuit affirmed the Southern District Court of West Virginia’s designation of the defendant as a career offender and also held that the defendant’s prior state conviction under West Virginia law constituted a controlled substance offense under § 4B1.2 of the Sentencing Guidelines.

Facts and Procedural History

In April of 2015, the defendant pled guilty to violating 21 U.S.C. § 841(a)(1) by knowingly distributing a set quantity of crack cocaine. The court used the modified categorical approach to hold that the defendant’s two prior state convictions were “controlled substance offenses” under § 4B1.2 of the Sentencing Guidelines. The court consequently determined that the defendant should receive career offender status. On appeal, the defendant argued that the second of his two prior state convictions did not qualify as a controlled substance offense and that consequently, he should not be termed a career offender.

The District Court Should Not Have Used the Modified Categorical Approach

When determining whether to apply a Guideline sentencing enhancement, courts use a categorical inquiry to determine whether a defendant was convicted of a crime that qualifies as a predicate offense. However, when a statute is “divisible,” courts deviate from this categorical approach to apply a modified categorical approach. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). A “divisible” statute lists elements in the alternative and defines multiple crimes. Id.

The modified categorical approach consults particular documents to ascertain of what crime and with what elements a court convicted a defendant. Id. Courts should only use the modified categorical approach in limited circumstances. Where a statute defines an offense broadly and is not divisible, the modified categorical approach “has no role to play.” Cabrera-Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S. Ct. at 2285).

Thus, the Fourth Circuit’s first task was to determine if the West Virginia statute under which the District Court convicted the defendant was divisible and therefore subject to the modified categorical approach. While the Fourth Circuit conceded that the statute could be “generally divisible,” it argued that such general divisibility was not sufficient to apply the modified categorical approach without first engaging in the following two-part inquiry: (i) Was the state statute’s definition of “attempt” consistent with the generic definition of “attempt” in the career offender enhancement? United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014), and (ii) Was the underlying state offense a categorical match for the Guideline predicate offense? Id. The Fourth Circuit stated that the District Court should not have applied the modified categorical approach without first engaging in these analyses.

West Virginia’s Attempt Statute Is A Categorical Match For the Generic Definition of Attempt

West Virginia’s attempt statute requires both specific intent to commit the underlying crime and an overt act in furtherance of that crime. Similarly, Fourth Circuit precedent defines “attempt” as requiring both culpable intent to commit the charged crime and a substantial step toward committing the crime. The Fourth Circuit argued that the intent requirement in the West Virginia statute was no broader than that of the Fourth Circuit statute and that the act elements in each statute were consistent; each required more than preparatory acts that strongly indicated criminal intent. Therefore, the Fourth Circuit held that the statutes were substantially similar and were a categorical match.

The Prior State Conviction Was A “Controlled Substance Offense”

The Fourth Circuit held that the West Virginia controlled substance statute was no broader than § 4B1.2 of the Sentencing Guidelines. West Virginia Code § 60A-4-401 prohibits the manufacture, delivery, or possession with intent to manufacture or deliver of controlled substances. Sentencing Guideline § 4B1.2 proscribes the manufacture, importation, exportation, distribution, or dispensation of controlled substances. Thus, the two acts have substantially similar intent and action requirements, and the defendant’s underlying offense was a categorical match of a generic controlled substance offense.


The District Court erred in applying the modified categorical approach before analyzing the two inquiries above. However, the District Court reached the proper result in classifying the prior state conviction as a “controlled substance offense” and in classifying the defendant as a career offender. Consequently, the Fourth Circuit affirmed.



By John Van Swearingen

On Wednesday, November 23, 2016, the Fourth Circuit issued a published opinion in the civil case Rodriguez v. Bush. This matter was a habeas corpus petition brought by an offender sentenced to forty-five years in prison for drug trafficking. The United States District Court for the District of South Carolina denied Rodriguez’s petition under 28 U.S.C. § 2254 (2012), holding that Rodriguez’s claim for ineffective assistance of counsel failed to establish that his defense was prejudiced by his counsel’s performance. Rodriguez’s claim was rooted in his counsel’s failure to object to state trial judge’s denial of Rodriguez’s accepted plea offer. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Rodriguez’s petition on the basis that there is no federal or constitutional right to have a plea bargain accepted by a trial court, and therefore, his counsel’s failure to object could not establish prejudice to Rodriguez’s defense.

Facts and Procedural History

In 2009, on the day Rodriguez’s trial, the prosecutor offered Rodriguez and his co-defendants various plea bargains. The offer to Rodriguez was for a recommended sentence of 20 years, and Rodriguez’s co-defendants were made similar offers. The offers to the co-defendants were accepted by the court.

However, when Rodriguez’s counsel presented the plea offer to the trial judge, the judge rejected the offer, stating that “he was not going to accept the plea and that he was ready to try a case this week.” While Rodriguez’s counsel did attempt to convince the judge to accept the plea deal, he did not object on the record to preserve the rejection for appeal.

The state court denied Rodriguez’s motion for post-conviction relief, stating that his counsel’s failure to object did not prejudice Rodriguez’s defense and the trial court’s denial of the plea offer did not violate Rodriguez’s due process rights. Rodriguez then appealed to the South Carolina Supreme Court, but certiorari was denied. Rodriguez then filed a petition in federal court under § 2254.

The Ineffective Assistance of Counsel Claim

Strickland v. Washington, 466 U.S. 668, 687 (1984), governs ineffective assistance of counsel claims. Under Strickland, to prove ineffective assistance of counsel, Rodriguez must show (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.”

Despite being a two-pronged test, a reviewing court is free to examine the prejudice prong first, as it is dispositive to the claim. Rodriguez was not prejudiced by his counsel’s failure to object to the rejection of the plea deal, because a defendant cannot be prejudiced by a claim that has no merit under governing law. Therefore, Rodriguez’s ineffective assistance of counsel claim fails.

There is No Due Process Claim to Have a Plea Deal Accepted by the Court

In Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012), the Supreme Court held that there is no federal right to have a judge accept a plea deal. The Court further clarified this point in Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012), explicitly stating that there can be no due process claim even where “a plea deal is accepted by the defendant but rejected by the judge.” Even further, there is no constitutional claim under the same facts. Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992).

Therefore, the governing law clearly states that Rodriguez, nor any other similarly-situated defendant, claims a right to have an accepted plea offer honored by a presiding judge. Rodriguez based his due process claim on the premise that such a right existed. Since the claim has no support under governing law, and because this same claim forms the basis of his ineffective assistance of counsel claim, both of his claims on appeal fail.


The Fourth Circuit affirmed the district court’s denial of Rodriguez’s petition under § 2254. Both the ineffective assistance of counsel and due process claims were based on the premise that a defendant has a right to have a plea deal accepted by a presiding judge. Because no such right exists, Rodriguez’s claims were properly denied.