Transitional Justice and Inauguration Poems

LESLEY WEXLER

Illinois law professor Lesley M. Wexler describes how Amanda Gorman’s The Hill We Climb and Jericho Brown’s Inaugural,’ an Original Poem—as two inaugural poems—fit within the call of transitional justice. Professor Wexler explains how, read together, the two poems provide a roadmap of the transitional justice terrain the government may choose to tread.

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United States v. Sanford

Docket: 20-2445

Opinion Date: January 25, 2021

Judge: Diane S. Sykes

Areas of Law: Civil Rights, Criminal Law

In 2014, Sanford was convicted of possession of cocaine with intent to distribute and sentenced to 180 months’ imprisonment— 82 months below the bottom of the U.S.S.G. range. Sanford is incarcerated in the Victorville, California federal prison. On April 28, 2020, the Victorville warden received two written requests from Sanford seeking compassionate release under 18 U.S.C. 3582(c)(1)(A) due to the COVID-19 pandemic. Without waiting for a response from the warden or letting 30 days lapse without a response (as the statute requires), Sanford filed a compassionate-release motion in court on May 1. Appointed counsel stated that Sanford “suffers from several health conditions, including stomach pain, shortness of breath, and anxiety.” No details were provided. On May 14. the warden denied Sanford’s request, explaining that the medically stable 38-year-old did not establish “extraordinary and compelling” reasons and that “extraordinary measures” were being taken to prevent the spread of COVID-19 and explained the process for administrative appeal. Victorville prison did not then have any COVID-19 cases. The district court denied Sanford’s motion, concluding that the “mere presence” of COVID-19 in prison is not an extraordinary and compelling reason for compassionate release. The Seventh Circuit affirmed on alternate grounds. Sanford failed to exhaust administrative remedies within the Bureau of Prisons before filing his motion; section 3582(c)(1)(A) is a mandatory claim-processing rule and must be enforced when properly invoked.

United States v. Wilkinson

Docket: 20-1037

Opinion Date: January 25, 2021

Judge: HAMILTON

Areas of Law: Criminal Law, Securities Law, White Collar Crime

In 1999-2016, Wilkinson convinced approximately 30 people to invest $13.5 million in two hedge funds that he created. By 2008, Wilkinson lost the vast majority of their money. Wilkinson told them that the funds’ assets included a $12 million note with an Australian hedge fund, Pengana. The “Pengana Note” did not exist. Wilkinson provided fraudulent K-1 federal income tax forms showing that the investments had interest payments on the Pengana Note. To pay back suspicious investors, Wilkinson solicited about $3 million from new investors using private placement memoranda (PPMs) falsely saying that Wilkinson intended to use their investments “to trade a variety of stock indexes and options, futures, and options on futures on such stock indexes on a variety of national securities and futures exchanges.” In 2016, the Commodity Futures Trading Commission filed a civil enforcement action against Wilkinson, 7 U.S.C. 6p(1). Indicted under 18 U.S.C. 1341, 1343, Wilkinson pleaded guilty to wire fraud, admitting that he sent fraudulent K-1 forms and induced investment of $115,000 using fraudulent PPMs. The court applied a four-level enhancement because the offense “involved … a violation of commodities law and ... the defendant was … a commodity pool operator,” U.S.S.G. 2B1.1(b)(20)(B). Wilkinson argued that he did not qualify as a commodity pool operator because he traded only broad-based indexes like S&P 500 futures, which fit the Commodity Exchange Act’s definition of an “excluded commodity,” “not based … on the value of a narrow group of commodities.” The Seventh Circuit affirmed. Wilkinson’s plea agreement and PSR established that Wilkinson was a commodity pool operator.