November 13, 2004
The joy of footnotes
I am back from my whirlwind trip to the Windy City. But there is no rest for the weary, as I now need to gear up for the US Sentencing Commission hearing planned for next week. I hope to be able to post my written testimony and others before I leave for the event Tuesday morning.
While in transit, I have a chance to read the two interesting circuit decisions noted here. Both decisions provide a thoughtful and telling windows into the doctrinal intricacies and practical realities of federal guidelines sentencing. And, ever engaging, both decisions have hysterical footnotes that merit the spotlight.
In US v. Vasquez, No. 03-1763 (2d Cir. Nov. 10, 2004) (available here), Judge Jon Newman (my former boss) is relaying the facts of a prison guard's conviction for sexual misconduct with inmates. After describing the defendant as a guard, Judge Newman drops this inspired footnote:
We are aware that the formal job classification in the Bureau of Prisons is "correctional officer," a modern label that implies, somewhat extravagantly, that the officer will play some role in "correcting" the wayward inmates in his charge. However we might refer to law-abiding custodians at FCI-Danbury, it would be hypocritical to call Vasquez a "correctional officer."
Meanwhile, in US v. Andrews, No. 03-51367 (5th Cir. Nov. 11, 2004) (available here) the Fifth Circuit reverses a sentence imposed by a district judge who used unlawful means to throw the book at a defendant convicted of defrauding an elderly neighbor. In the course of castigating the judge for not following the limits of the sentencing guidelines, the court drops this footnote:
The district court seems more comfortable with sentencing Andrews based on Dante’s levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit. See Andrews, 301 F. Supp. 2d at 609 (stating that the “Eighth Circle” would be appropriate for Andrews’s co-conspirator); see also id. at 612 (stating that the “Fourth Circle” is appropriate for those who prey on the elderly); but cf. United States v. Winters, 117 F.3d 346, 348 (7th Cir. 1997) (affirming denial of a downward departure despite district court’s feeling that defendant belonged on a lower level of hell, citing Dante’s Inferno).
The waiting game continues
Marty Lederman over at the SCOTUS Blog reports here that we likely won't be seeing a decision in Booker and Fanfan until December. In his words: "It appears that the Court will not be issuing any further opinions until at least November 30th. Other than 11/30, the possible decision days prior to January 11, 2005 are December 1st, 7th, 8th, and 13th." Since Marty correctly predicted that last week's opinions would not be Booker and Fanfan, I now take his forecasts as the gospel.
Calling all sociologists
The University of Chicago Legal Forum conference on Punishment and Crime was brought to a fascinating close with panels covering the "sociological perspective" and the "philosophical perspective." Both panels were great, and I particularly came away from the first panel with a strong belief that the modern development of sentencing reforms would be greatly advanced by serious study of the sociology of sentencing decision-making and decision-makers.
As I was listening to the sociologists describe their discipline and what it can and does contribute to the study of punishment and crime, I came to realize that a lot of the early sentencing reform literature incorporated a lot of sociological insights. (The chapters of Marvin Frankel's Criminal Sentences: Law Without Order (1972) concerning the work of judges, parole officials and probation officers are filled with such insights.) However, the panelists today confirmed my sense that sentencing decision-making has not been a central topic of sociological study for quite some time.
Perhaps there are a number of sociologists currently examining modern sentencing reforms. If there are, I hope they will send me their work; if there aren't, I hope that Blakely might engender as much study of sentencing in the sociology academy as it is now engendering in the legal academy.
Noteworthy news from the midwest
I am having a grand time participating in this University of Chicago Legal Forum event. Introducing me before my keynote address, brilliant Chicago Dean Saul Levmore, speaking with enormous wit and wisdom, gently teased me for being too complementary and generous in my blog commentary.
Meanwhile, as I am enjoying Chicago hospitality, others in the midwest are making Blakely news. The Seventh Circuit yesterday decided two Blakely cases: US v. Pittman, 2004 WL 2567901 (7th Cir. Nov 12, 2004) (affirming career offender sentence based on prior conviction exception); US v. McKee, 2004 WL 2567902 (7th Cir. Nov. 12, 2004) (remanding for resentencing, though staying mandate). In addition, Michael Ausbrook over at INCourts continues his comprehensive coverage of Blakely in Indiana through a series of important posts.
November 12, 2004
Off to Chicago with interesting briefcase readings
I am off to the airport to participate in this great University of Chicago event (more background and details here). Though I hope to be able to get on-line in Chicago, posting is likely to be light over the next few days.
But thanks to Howard Bashman and also an insightful reader, I am able to take with me two interesting federal circuit court sentencing decisions. They come from the Second and Fifth Circuits, and though they do not directly concern Blakely issues, they both make for important reading as we contemplate the future of federal sentencing reforms.
The decision from the Second Circuit is US v. Vasquez, No. 03-1763 (2d Cir. Nov. 10, 2004) (available here), in which Judge Jon Newman (my former boss) seeks to finally clarify the proper standard of review for sentencing guidelines appeals. Especially at a time when Blakely may call for close examination of distinctions between sentencing law and sentencing facts, it seems very important for courts to be examining sentencing "issues that are not easily categorized as issues of either fact or law."
The decision from the Fifth Circuit is US v. Andrews, No. 03-51367 (5th Cir. Nov. 11, 2004) (available here) in which the court concludes, in the course of a reversal and remand for resentencing by a different district judge, that "the district court's decision was fatally infected with antagonism toward the United States Sentencing Guidelines." Especially at a time when Blakely may call for consideration of advisory or differently-structured guidelines, it seems very important to examine what really drives decision-making by sentencing courts.
I hope to have more commentary about both these cases after I have a chance to give them a closer read.
The Blakely costs and court crisis
This law.com article, tellingly titled "Courts on the Edge of Financial Crisis," documents a dire "funding crisis, unprecedented in the last two decades," now being experienced by the federal courts. In the piece, insightful court scholar Arthur Hellman notes the potential impact of Blakely:
The Supreme Court's June decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), a state sentencing case, has increased the workload because it threw into doubt the constitutionality of the Federal Sentencing Guidelines. Courts and prosecutors have been scrambling to anticipate what the impact on sentencing will be.
"The one consequence of that is many sentencing determinations before the Supreme Court decision that would have been routine and non time-consuming are now requiring huge amounts of time and attention by judges, assistant U.S. attorneys and defense attorneys," said Hellman. "That pushes other cases further down the line.
"Even if the caseload had remained the same, when you have an upset like this, just the sheer amount of human resources the court system has to devote to a large class of cases increases," he explained. "Even with a steady budget that would be difficult."
This disconcerting article confirms a lot of what I heard when I had a chance to speak last month with federal District Court Clerks and Executives (discussed here and here). Put simply, the federal courts were overloaded and underfunded before Blakely, and the impact of Blakely (even if it does not ultimately get applied to the federal system) is to make a bad workload situation much worse.
Of course, at least in the criminal law arena, one should not lose sight of what might be called the federalism solution to this workload problem. If more criminal prosecutions, especially local drug crimes, were simply left to the states, the caseload burdens in the federal courts would be somewhat alleviated (although then the states would bear even more of the brunt of our swelled criminal justice system).
November 11, 2004
Fascinating death penalty development in Ohio
As detailed in articles in the Cincinnati Enquirer and the Toledo Blade, an unexpected coalition of Republicans and Democrats joined together in the Ohio House to approve a bill requiring an in-depth study Ohio's capital punishment system yesterday. The bill was sponsored by Representative Shirley Smith, a Democrat from Cincinnati, but its passage became a reality when Representative Tom Brinkman, a Republican from Mount Lookout, added the bill as a surprise amendment to a distinct bill toughening sex offender sentencing.
Here are some highlights from the Enquirer article describing the bill and Representative Brinkman's support for it:
The governor and legislature would appoint an 18-member commission to look at whether those on death row received adequate legal counsel, whether capital cases are resolved fairly, and how delays in the system can be overcome.
"I am 100 percent pro-life," Brinkman said, noting that applies to abortion and the death penalty. "I told my wife that the first time I get a sentencing bill, I'm going to move this. I'd like to abolish (the death penalty) or have a moratorium, but you've got to start somewhere."
With heavy Democratic support, Brinkman's amendment passed 64-30, but not before some spirited debate among members, including Rep. Jim Hughes, R-Columbus, who said, "I'm very much pro-death."
The text of the bill can be access here. The press reports suggest that Senate passage is uncertain because the Ohio Senate has only a few legislative days before the current session ends.
I am rooting for the bill's passage because a comprehensive study of Ohio's death penalty system would likely reveal many important realities — both good and bad — about Buckeye capital justice. Put another way, I am 100% and very much pro-study.
University of Chicago Legal Forum symposium
Blogging may be a bit lighter over the next few days as I gear up for and attend the University of Chicago Legal Forum's Annual Symposium on "Punishment and Crime," which is taking place Friday, November 12, 2004 & Saturday, November 13, 2004.
The basic details for the event can be found here, where you will see I have the honor of giving the Keynote Address. Today the Legal Forum folks sent me a copy of the full program, which contains bios for all the participants and paper/discussion abstracts for the panelists and moderators. A copy of the full program can be downloaded below.
I am quite excited for the event (perhaps in part because many of the presentations will be covering topics other than Blakely). I hope to be able to post at least occasionally over the next few days, if only to detail some of what I learn while at Chicago.
Blakely delays, deals and dodges
Articles like this one about white supremacist Matt Hale's sentencing being postponed document the ways that Blakely is significantly delaying the administration of justice. But as noteworthy, and perhaps even more consequential, may be the ways in which Blakely is altering the administration of justice.
For example, this article from the Fresno Bee details a Blakely-impacted plea deal in a white-collar fraud case:
In a deal with federal prosecutors, [Fresno developer Nick] Lattanzio [who was facing up to six years in prison based on his conviction] agreed to a two-year sentence and agreed to waive all appeals, either of his conviction or his sentence. With credit for the time he spent in custody before and after his trial, Lattanzio could be out of jail in six months.
U.S. District Judge Oliver W. Wanger, who went along with the sentencing agreement, told Lattanzio on Monday that he got a big break because of the current confusion over federal sentencing procedures. The judge also ordered Lattanzio to pay $1.3million in restitution and placed him on three years of supervised release once he completes his prison term.
Assistant U.S. Attorney Virna L. Santos, who prosecuted the case, said the two-year sentence was much less than Lattanzio would have received, but it was a way to bring the case to closure.
I think it is safe to assume that this case is not exceptional. I suspect that more than a few defendants — especially those with particularly capable attorneys — have been able to use the Blakely confusion and uncertainty to cut more favorable plea deals.
And, in addition to the delays and the deals, the dynamics of Blakely dodging should also be noted. I have seen many appellate cases on-line in which the court closes by saying something to the effect of "since we are remanding for re-sentencing on other grounds, we need not reach the Blakely issue." And a few defense attorneys have reported to me instances during appellate oral arguments when judges have asked questions to the effect of "Can we avoid the Blakely issue if we rule for the defendant on this other ground?".
Though I suspect it would be very hard to track and quantify all the Blakely delays, deals and dodges, it would be quite interesting to try to systematically assess what might be called the collateral consequences of Blakely on the administration of the criminal justice system.
AG nominee Gonzales and sentencing issues
With thanks to How Appealing for all the links, here is an interesting article concerning Attorney General nominee Alberto Gonzales from The Washington Post, and two worth reading from KnightRidder here and here, and also two more from the New York Times here and here. And this Legal Times piece focuses specifically on issues likely to arise in the Senate confirmation process.
Not surprisingly, none of these article focus on sentencing issues, although I could imagine sentencing matters becoming prominent in the Gonzales conversation in the weeks ahead. First, if Booker and Fanfan apply Blakely to the federal system, everyone (including the Senate) will be buzzing about the future of the federal guidelines and also about the Justice Department's views on and approach to future federal sentencing reforms. Depending on various matters of timing, I could imagine Blakely et al. becoming a subject of discussion in Gonzales' Senate confirmation hearings.
Second, Gonzales has a history with the death penalty through his role in the 1990s advising then-Texas Governor Geroge Bush on clemency decision-making. In an article in the July/August 2003 issue of the Atlantic Monthly (available here), Alan Berlow sharply criticized memos Gonzales wrote to advise Bush on clemency petitions and asserted that "Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence."
Discussion and analysis of the Atlantic Monthly article and these issues can also be found here and here and in this 2003 FindLaw piece by former White House Counsel John W. Dean. Dean says that the "Gonzales execution memos raise serious — and, unfortunately ugly — questions," but Dean also astutely recognizes that popular support for the death penalty in the US means that it is unlikely that "Gonzales's paper trail might haunt him."
In the interest of full disclosure, I must note that I was one of the lawyers who represented Terry Washington, the defendant suffering from mental retardation and executed by Texas in 1997, whose case is extensive discussed in these articles about the Gonzales execution memos. In fact, as an associate doing pro bono work at Paul, Weiss Rifkind, Wharton and Garrison, I helped draft Terry Washington's clemency petition. (Clemency was our last resort after we failed to convince state and federal habeas courts in 1997 that it was unconstitutional to execute a mentally retarded defendant — a claim which, of course, carried the day in the Supreme Court only five years later in Atkins v. Virginia.)
UPDATE: Howard has collected a stunning array of additional newspaper articles about Alberto Gonzales' nomination here. Bonus points if anyone finds a mention of Blakely or the death penalty in these pieces.
What might come of "plain error" rulings and other affirmances?
The First Circuit though its ruling yesterday in US v. Fraser, 2004 WL 2537410 (1st Cir. Nov. 10, 2004), maintained its status as a leader in affirming convictions over Blakely objections on plain error grounds. Prior discussion of the First Circuit's "plain error" Blakely work can be found here and here and here and here.
The Fraser decision and the First Circuit's "plain error" approach — as well as the steady stream of affirmances over Blakely objections coming from the Fourth and Fifth Circuits (which have, unlike the First, expressly held Blakely inapplicable to the federal system) — has me wondering what will happen to all these Blakely appeals if (when?) the Supreme Court officially declares Blakely applicable to the federal system in Booker and Fanfan. It would seem that, at that point, a Blakely error becomes plain, although waiver/forfeiture claims might still be made in particular cases. Plus, as detailed in the Fraser case, a few of these affirmances assert — sometimes as a clear holding, sometimes in dicta — that the defendant's Blakely claims would be unavailing even if Blakely applied to the federal system.
Not being a specialist in appellate procedure, I do not know if and how some defendants now losing in the Circuits might be able to get relief after Booker and Fanfan. (Notably, the Second Circuit has been expressly stating, in every Blakely-related case it is now deciding, that the "mandate will be held pending the Supreme Court's decision" in Booker and Fanfan. Similarly, the Eighth Circuit is operating under an administrative orders that essentially holds all Blakely cases.) Needless to say, if Blakely is held applicable to the federal system in Booker and Fanfan, sorting out all these "mid-stream" cases will be a huge task.
November 10, 2004
Today's SCOTUS death penalty case
I know death is different, and I know we should always be especially careful in the administration of society's ultimate punishment, but I am still always amazed with how much Supreme Court time (not to mention, of course, lower court time) gets consumed by the death penalty. (Perhaps someone has run the actual numbers, but I would guess that death eligible crimes comprise less than .01% of all crimes, while capital cases likely take up 30% to 40% of appellate courts' criminal docket.)
In any event, today's Supreme Court death penalty case, Brown v. Payton, involved a relatively intricate habeas issue. You can get background on the case and briefs from the SCOTUS Blog here, and a report on the argument from this AP article. It is interesting to speculate, in light of this prior post noting complaints about the pace of California death sentences moving through the appellate process, whether this particular case caught the Justices' attention because it came out of the Ninth Circuit.
Apprendi, Blakely and federalism
I have previously highlighted here and elsewhere that, despite all the attention paid to federal sentencing issues, the story of Blakely in the states may be even more interesting and compelling. In this post I spotlighted some deep federalism issues lurking in Booker and Fanfan and listening to the Indiana Supreme Court struggle with Blakely (details here) makes these issues feel quite real and tangible.
Well timed, then, is my receipt of a finalized draft of an article, scheduled for publication in the Dec. 2004 issue of the Federal Sentencing Reporter, by Professor Peter (Bo) Rutledge entitled "Apprendi and Federalism." Here are some highlights of the article, which you can download below, drawn from the introduction and conclusion:
Since the emergence of the Apprendi majority and its newly minted (and evolving) constitutional limits on criminal punishment, many commentators have begun to address its implications for the horizontal relations between the branches of government – between legislators and courts, between judges and juries, and between judges and prosecutors. Less widely addressed, though equally (if not more) important, has been the Apprendi doctrine’s implications for vertical relations, particularly federalism....
The Apprendi principle poses a challenge to justices, such as Justices Scalia and Thomas, who are committed to federalism principles. One might legitimately argue, as they do, that reforms such as sentencing guidelines and sentencing factors strip the jury of some of its traditional powers. Yet Duncan forces those justices to consider the impact their expansive interpretation of the Sixth Amendment on the states. To date, their opinions in cases such as Apprendi and Blakely do not seem to have been sufficiently sensitive to the impact of these decisions on principles of federalism. The approach offered here presents them with an opportunity to refocus on issues of federalism and to attempt to harmonize federalism with their commitment to the jury right.
The next US Attorney General
According to press reports here and here, Alberto Gonzales will replace John Ashcroft as attorney general. As I noted last night here, the modern story of federal sentencing — from the Feeney Amendment to Blakely and Booker/Fanfan — is a major part of legacy of Ashcroft's tenure as head of the Justice Department. It will be very interesting to watch how Gonzales, who will be the first Hispanic attorney general, will deal with the Blakely mess and other federal sentencing issues.
Discussing Blakely in Indiana
Michael Ausbook at INCourts continues his comprehensive coverage of Blakely in Indiana with this extended post which notes a new Blakely reversal and also reports at length about the oral arguments in the two Blakely-related cases heard this morning by the Indiana Supreme Court. (Preparing for the argument, Michael also put together this thoughtful post about Blakely waiver issues yesterday.)
As detailed here, a group of prosecutors filed an amicus brief in which my forthcoming article "Conceptualizing Blakely" and its discussion of an offense/offender distinction plays a prominent role. Michael reports that at oral argument in the Indiana Supreme Court, the state's lawyer "spent some time on offense facts and offender characteristics." I am now especially looking forward to watching the webcast of the oral argument as soon as its gets archived here.
UPDATE: The oral argument in Heath and Smylie is now available here, and it is very much worth watching. I have only had a chance to listen to the first portion before heading off to teach class, but I already got a chuckle when the very first comment from the bench was "Gosh there are so many questions to ask, it is hard to know where to start." It is remarkable to watch the Justices of the Indiana Supreme Court try to make sense of Blakely in light of Indiana's existing sentencing laws and precedents.
Lots of morning sentencing news
The papers are filled with two sets of sentencing-related stories. The Supreme Court's decision in Leocal v. Ashcroft — holding that DUI is not a "crime of violence" for which an immigrant can be subject to automatic deportation — is thoughtfully discussed in articles in the NY Times and LA Times. Both pieces suggest that the impact of this seemingly little decision could be very big; the NY Times article quotes Ira Kurzban, a prominent immigration lawyer in Miami, saying Leocal is "going to have an immediate and significant impact on a large number of cases."
The work of the Enron sentencing jury (detailed here) is also discussed widely, and this Houston Chronicle story covers the sentencing angle most effectively. In the article, one of the defense attorneys describes the Blakely-inspired sentencing phase of the trial as "exceedingly weird — pure guesswork." An AP story here provides broader coverage.
November 10, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Criminal Sentences Alternatives, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
November 9, 2004
Nationwide Blakely developments in the states
Though today's non-arrival of Booker and Fanfan keeps the federal Blakely story on hold, the state Blakely stories continue to develop at a fast and furious pace:
- Michael Ausbrook has a long and thoughtful post here on recent decisions from Indiana which may presage what the Indiana Supreme Court might do with the Blakely cases it is considering tomorrow. And, in the Indiana intermediate appellate courts, a decision today, Teeters v. State, 2004 WL 2521386 (Ind. App. Nov. 09, 2004), relies on the "prior conviction" exception and other means to affirm a sentence over Blakely objections.
- The Minnesota Sentencing Guidelines Commission details here its plans for a meeting next month "to consider proposed modifications to the sentencing guidelines and commentary resulting from the recent U.S. Supreme Court decision Blakely v. Washington." The proposed modifications include "changes to the procedures for imposing aggravated departures, modifications to the consecutive sentencing provisions, modification to the sentencing grid and proposed ranking of unranked offenses."
- The Delaware Sentencing Accountability Commission has here (scroll down) a brief discussion of the Delaware Supreme Court's decision in Fuller v. State, No. 38 (Del. Oct. 29, 2004), which seems to indirectly suggest that Blakely may not be applicable to Delaware's voluntary sentencing guidelines.
- And, of course, California's appellate courts keep hashing out Blakely with now 137 Blakely-related opinions on-line. (Many of the most significant rulings are summarized here by the First Disrict Appellate Project in California.)
AG Ashcroft resigns
I suspect we will see stories in the days ahead about Ashcroft's legacy, and I suspect most of those stories will focus on the "war on terror." However, from my sentencing-centric perspective, I think the Ashcroft Justice Department's perceived "war on judges" — represented most tangibly by the Feeney Amendment and its aftermath (see coverage here and here) — should be a big part of the historical story of his tenure as head of DOJ.
A number of commentators have reasonably suggested that the Blakely decision may reflect an example of the judiciary striking back, and Judge Young's opinion in Green (discussed here) and Judge Panner's opinion in Detwiler (discussed here) clearly are reactions to the view that Ashcroft's DOJ violated separation of powers principles. Thus, we might even attribute the current turmoil with (and the expected demise of) the federal sentencing guidelines to the now out-going AG.
Enron sentencing jury is back
This just in: the novel advisory sentencing jury asked to decided a variety of sentencing-enhancing guideline issues in the Enron Nigerian barge case (background here) has returned its verdict. You can get all the details in this Houston Chronicle article, which explains that the jury determined:
- The sham produced $13 million in loss (not as much as the $43 million argued by the government or as little as the $120,000 suggested by the defense)
- All three defendants broke a private trust with Merrill Lynch.
- Two defendants had managerial or leadership roles and used more than minimal planning in the deal.
- One defendant did not substantially interfere with justice and did not use special skills.
Juries at work. How interesting. I cannot help but conclude (especially while sitting in the ivory tower) that this case shows that, even in complicated fraud settings, "Blakely-izing" the federal guidelines is not really that hard.
Death is not so different
I noted in this post the latest data documenting the nation's still expanding prison population, and today we have this Reuters article highlighting the impact of California's growing death row population:
So steadily are death row ranks swelling in the nation's most populous state that California is planning a controversial $220 million expansion of its only prison for the condemned at San Quentin north of San Francisco.
The article is mostly about the slow pace of appellate review of death sentences. However, as is true with prison populations, one should never forget that the death penalty story is typically state-specific (as further evidenced by this TalkLeft post noting approaching executions in Texas and Kentucky).