Two decisions out of the Second Circuit show that someone has a heart at Foley Square. 

In the rendition case of Maher Arar, where he was sought to sue officials for having falsely linked him to Al Qaeda and then spirited him off to Syria to be tortured (after all, it’s not like we torture people on American soil), the end of the line had come with a split Circuit decision that he failed to state a cause of action.  But the death of his case may have been greatly exaggerated, according to the Toronto Star.

The Second Circuit Court of Appeals announced yesterday it would convene at least 13 judges in December for another hearing for Arar, the Ottawa engineer who was tortured and jailed in a Syrian prison after being whisked out of JFK Airport in September 2002, under a U.S. practice known as “extraordinary rendition.”

A three-judge panel dismissed Arar’s lawsuit in June, but the dissenting judge said the ruling gave the U.S. government license “to violate constitutional rights with virtual impunity.”

What is truly extraordinary about the Circuit’s decision to reconsider the case “en banc” is that it was not at the request of Arar, but sua sponte.  This doesn’t happen very often.  It’s an amazingly significant development that the court, on its own, decided that review the decision of the split three-judge panel, perhaps signifying its disgust at rendition, one of the most offensive (and least known) weapons in the war against humanity.

In another decision, via Doug Berman (who’s finally back from vacation and hard at work bringing us the latest and greatest in sentencing decisions), the 2d Circuit in US v. Darden rejected the use of certain New York drug convictions under the Rockefeller Law as predicate convictions under the Armed Career Criminal Act, which required a conviction for a crime with a punishment of 10 years or more.

These four appeals, heard in tandem and consolidated for disposition, raise the same legal question: whether a prior conviction for a New York drug offense can serve as a predicate “serious drug offense” under the Armed Career Criminal Act (“ACCA”) where New York’s Rockefeller drug laws prescribed a maximum sentence of at least ten years for the offense at the time it was committed, but where New York non-retroactively amended the Rockefeller drug laws, prior to the federal sentencing in these cases, to reduce the maximum sentence for the same offense conduct to less than ten years. We conclude that, under the plain terms of the ACCA, we must look to the current sentencing laws of the state to determine whether the drug offense is “serious.”  We further conclude that under current New York law, the maximum sentence prescribed for these offenses is less than ten years.

One of the great curiosities of practicing law in New York is that the federal courts, hardly criminal coddling on their own, have long had a tendency to look askance at the ways of the state courts.  While issues of due process in the district courts were given short-shrift, a defendant stood a much better chance of getting relief from the Circuit because of its disdain for the methods employed down the block at 100 Centre Street.

In this decision, the 2d Circuit’s implicitly follows its “lenity for thee but not for me” in dealing with the draconian Rockefeller drug laws, the only aspect of state sentencing that makes the federal sentencing guidelines appear reasonable.  But we’ll take it where we can get it.