November 9, 2004
Considering Justices through the criminal justice lens
I must say I find it a bit unsavory to be talking extensively about Chief Justice Rehnquist's replacement, especially while he is still authoring interesting opinions such as today's ruling in Leocal (which has some interesting mens rea talk and a noteworthy "rule of lenity" footnote). Nevertheless, since speculating (and even campaigning) about who takes his place seems all the rage (as evidenced here and here and here and here and in every third article linked on How Appealing), I just want to put in a plug for this terrifically interesting post by Ken Lammers at CrimLaw discussing "the qualities, as a defense attorney, [he] would prefer to see in a supreme court nominee."
Especially as we watch courts consider and cope with the Blakely fall-out (and anticipate the voting patterns in Booker and Fanfan and related cases), I found particularly fascinating this quote from Ken's post:
Those who work as a criminal defense lawyers usually come to believe that almost every judge is a judicial activist when it comes to upholding the conviction of a "criminal" or defending the processes of the criminal justice system.
Ken's commentary has a number of other choice moments, including a statement of five important criminal justice principles, building toward this pitch:
I would like to see someone who has actual experience in criminal law elevated to the supreme court. And I don't mean as a judge, a member of some task force, a professor of criminal law dabbling a little on the side, or a federal prosecutor. I mean someone who has had extensive experience in the trenches, trying case after case in a State court where there is little insulation from the people effected by the trial (whether complaining witness or defendant). Where crushing caseloads make you realize what is important and what is not so that you can better value a case.
Lots to do while we wait
My knowledgeable sources tell me that the earliest we would see an opinion in Booker and Fanfan is now November 15, and they also say that November 29 (the Monday after Thanksgiving weekend) is even more likely. Fortunately, there are lots of Blakely activities to keep us busy in the meantime.
If you are in a Supreme Court mood, you can follow the happenings in the other Washington and Indiana. Starting this morning, the Washington Supreme Court will be considering a series of Blakely cases and issues over two days as detailed here and here, and you can even hear a live webcast of tomorrow morning's Blakely-related cases in the Indiana Supreme Court here. The Seattle Post-Intelligencer in this article previews the Washington cases with a focus on the retroactivity; INCourts and the Indiana Law Blog will surely provide great coverage of the Indiana cases.
If you want to focus on what's going on in the trial courts, you can keep on eye on the work of the sentencing jury in the Enron Nigerian barge case (background here), which according to this report is back to deliberating over contested sentence-enhancing guideline factors. Or you can study this Administrative Order Regarding Sentencing After Blakely from Rhode Island US Judge William E. Smith (it is two months old, but I just came across it). Or you can lament that, according to this report, white supremacist Matt Hale's sentencing is being delayed until we see a decision in Booker and Fanfan.
And if you want to focus on the work of a commission, you can join me in gearing up the this US Sentencing Commission hearing next week. Though I believe the hearing's witness list is still being finalized, I have heard that a number of the folks who wrote for the Federal Sentencing Reporter's Blakely Issues (16.5 and 17.1) have been invited to testify. I will provide more details, and copies of any written materials I receive (such as the PAG Letter here), as soon as possible.
Not yet for Booker and Fanfan
The speculation that today was the big day proved inaccurate, as now two reliable sources report that the US Supreme Court did not issue its opinions in Booker and Fanfan today.
Conforming Howard Bashman's genius here, it appears according to the SCOTUS Blog post here that the Court issued two relatively brief unanimous opinions today. Interestingly, today's opinions were authored by Chief Justice Rehnquist and Justice O'Connor, which leads me to speculate that they are not writing for the Court in Booker and Fanfan (though that's hardly a surprising notion).
Sorry if I fueled unhealthy buzz that we might see the decisions today; I guess I am just too eager to see what the Court finally has to say. Indeed, my efforts this morning to outline just some of the issues that confront the Court here is a reminder of how hard the decision is. And the failure to get the opinion out quickly heightens my fear that we may see a fractured decision. Stay tuned.
UPDATE: Chris Geidner at Law Dork deserves extra credit here for beating me to the inevitable Beckett reference.
November 9, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Booker and Fanfan pre-reading guide
If Booker and Fanfan are decided today — and that is still a big "if" — there will be so many ways to examine and assess what the Supreme Court says (and does not say). Besides obviously being concerned with the basic holding and vote count, I will also be thinking about:
1. Who writes the majority opinion and any concurrences or dissents.
2. Whether the Court's opinion discusses constitutional provisions other than the Sixth Amendment and how the Court handles precedents like Watts and McMillan and Williams.
3. Whether the Court's opinion, directly or indirectly, speaks to the continued vitality after Blakely of recent key precedents like Almendarez-Torres and Harris (background on these issues can be found here).
4. Whether the Court's opinion, directly or indirectly, speaks to issues relating to Blakely's retroactivity.
5. Whether the Court's opinion, directly or indirectly, speaks to issues confounding state courts such as Blakely's applicability to consecutive sentencing determinations or the scope of the "prior conviction" exception (or the dozens of other smaller "Blakely scope" issues).
I could go on — there are also many questions about permissible remedies for current cases and advising other branches about how to handle future cases — but I am already exhausted just thinking through all the issues. What I fear most before seeing any opinion is the prospect of a deeply fractured Court creating uncertainty on even those issues it directly addresses. Here's hoping that, no matter what the Court says, it speaks with a relatively clear voice.
November 9, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack
Friends in high places
With many thanks to Michael Ausbrook of INCourts for the head's up, I was extremely pleased to discover that I apparently have readers and fans in the Indiana Prosecuting Attorneys Council (IPAC). Yesterday, two days before the Indiana Supreme Court hears its Blakely cases of Heath and Smylie (background here and here), IPAC filed an amicus brief in which my forthcoming article "Conceptualizing Blakely" and its discussion of an offense/offender distinction play a prominent role. (Over at INCourts you can get more background here and here on the Indiana brief and the Heath and Smylie arguments.)
The full IPAC brief, which you can access here, is an interesting read not only for the offense/offender discussion, but also for its views on consecutive sentencing after Blakely and its assertion that Indiana "courts need not await action by the legislature to establish remedial procedures to insure compliance with Blakely." But, of course, ever the egoist and egotist, my favorite parts of the brief are those where my "Conceptualizing Blakely" article (available at this post) gets heavy play. And I especially liked the brief's conclusion, which states: "If Blakely is held to govern Indiana sentencing statutes making a distinction between offense facts and offender characteristics is essential to conducting a rational sentencing system."
November 9, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack
The power of positive thinking?
Especially with a decision in Booker and Fanfan perhaps only hours away, now is a good time to recall earlier positive and negative posts about Blakely and expected reactions thereto. Glass-half-full types in the mood to think positive should go here and here, glass-half-empty types in the mood to think negative should go here and here.
And for those interested in more optimism, this article from corrections.com entitled "Sentencing: Legal Efforts Hint of Change" puts a very positive spin on Blakely and also on the defeat of Proposition 66, the effort to amend California's Three Strikes Law. Though this article may actually be too upbeat even for an eternal optimist like me, the piece gives a long and effective account of reasons why the "era of locking up non-violent criminals for lengthy sentences seems to be coming to a close."
November 9, 2004 in Blakely Commentary and News, Blakely in the States, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack
SCOTUS makes news by not deciding
During election week I spotlighted the important issue of felony disenfranchisement here and here, and many expected the issue to again be in the spotlight because the Supreme Court seemed poised to grant cert. on a case challenging, on the basis federal voting rights law, state felony disenfranchisement laws. But, as detailed in this post from the SCOTUS Blog, the High Court yesterday denied review without explanation in Locke v. Farrakhan (03-1597) and Muntaqim v. Coombe (04-175), cases from the Ninth and Second Circuits respectively, even though those cases establish a circuit split on federal voting rights law.
Though the Supreme Court may make much bigger news if it decides Booker and Fanfan today, the Court got the attention of serious court watchers through these cert. denials. Here are thoughtful articles about these developments from the NY Times, the AP, and law.com. The articles sensibly suggest that the Justices may be waiting for the legal issues to percolate more in the lower courts; a case challenging Florida's broad disenfranchisement law now being considered en banc by the Eleventh Circuit may get the Supreme Court's attention before long.
November 8, 2004
In a New York state of mind
With thanks to an informed New York reader, I can report on some interesting Blakely/Apprendi Big Apple developments. First, the reader reminds me about People v. Murray, 2004 NY Slip Op 24388 (Sup. Ct. Bronx County Oct. 15, 2004), the first reported NY Blakely decision noted previously here. In Murray, a trial court concluded that sentencing a defendant to consecutive terms did not raise Apprendi problems even though "some would argue that [Blakely] now requires that the determination as to whether a certain statutory basis for consecutive sentences [PL 70.25 (2)] has been established must be submitted to the jury because it is a factual question."
More recently, in People v. West, 2004 NY Slip Op 07905 (N.Y. App. Div. 1st Dept. Nov. 4, 2004), the Appellate Division, in fairly summary fashion, reversed a trial court's ruling that a defendant's sentence as a persistent felony offender was unconstitutional. Here's the heart of the appellate court's analysis:
In People v Rosen (96 NY2d 329 , cert denied 534 US 899 ), the Court of Appeals made an authoritative interpretation of the state statutory scheme regarding persistent felony offenders, finding the statutes in question constitutional. We need not decide whether Rosen conflicts with Ring v Arizona (536 US 584 ), because the particular facts upon which the sentencing court appeared to have based its determination were all permissible under Apprendi, in that they constituted facts found by the jury, defendant's prior convictions and matters of record. Accordingly, defendant's sentence did not violate Apprendi v New Jersey (530 US 466 ).
Can sentencing jurors get the blue flu?
I was hoping that we might have news from the Enron Nigerian barge sentencing jury (previously discussed here) before the sentencing stories are overtaken by a decision in Booker and Fanfan. But the rumor mill is starting to "confirm" my speculation here that tomorrow's opinion from SCOTUS will be Booker and Fanfan, and now this report from Houston indicates that an ill juror put a halt to the jury's advisory sentencing deliberations in the Enron Nigerian barge. Though the work of this "sentencing jury" is scheduled to resume tomorrow, I wonder if a decision in Booker and Fanfan could change the face of this case yet again.
Federal response to Blakely/Booker
No matter when we see Booker and Fanfan, everyone is gearing up for how best to respond to Blakely in the federal system (assuming Blakely applies). As noted before and detailed here, the US Sentencing Commission already has hearings planned for next week and the "purpose of the public hearings is for the Commission to gather testimony from invited witnesses regarding possible changes to the sentencing guidelines." I started drafting my testimony this weekend, though who knows how a decision in Booker and Fanfan might change my perspectives.
Meanwhile, I received today a copy of an extremely thoughtful and detailed letter sent last week from the Practitioners' Advisory Group (PAG) to USSC Chair Judge Ricardo Hinojosa concerning a "Recommended Long-Term Legislative Response to Blakely v. Washington." PAG is endorsing a proposal for "Codified Guidelines" suggested by James Felman (which was first available here and will also be published in the next issue of the Federal Sentencing Reporter). And PAG's letter to the USSC, downloadable here, provides a comprehensive account and defense of the proposal: Download PAG_Response_to_Blakely.DOC
The PAG letter is a great (though long) read not only for its specific proposals, but also for its interesting discussion of Blakely's applicability to fines, supervised release and its revocation, and other federal sentencing issues. The PAG letter also concludes with a extended discussion identifying drawbacks to purely advisory guidelines and to the Bowman proposal (which the letter calls "the Statutory Maximum approach").
I suspect at the USSC hearings that there will be a range of proposals put forward, since there seems to be very little consensus about what should happen next in federal sentencing. I have heard rumors that bills are already drafted and ready to go on Capitol Hill, though I doubt those bills look a lot like what PAG has endorsed.
No so fast?
Responding to my speculation here that Booker and Fanfan are coming from SCOTUS tomorrow, Marty Lederman in comments here says he "would be very surprised if the Court decided Booker and Fanfan tomorrow. If I had to predict, I'd say December 7th, 8th or 13th." He and the always knowledgeable Howard Bashman reasonably suggest that the complexity of the severability issue may prevent the Court from such quick action. As Howard explained to me in an e-mail:
Those who are predicting that opinions in the Federal Sentencing Guidelines (FSG) cases won't be issued tomorrow are probably basing their prediction on the complexity of the FSG cases and the likelihood that they will draw one or more dissenting opinions. The first opinion(s) of the Term tend to be quick, short, unanimous rulings.
And Marty followed-up: "if the Court perceives that there really is a crisis that needs immediate resolution, it could well decide the cases this week, or next Monday, or November 30th/December 1st." So, even if we do not get Booker and Fanfan tomorrow, we will at least have some more tea leaves to read about what the Court is thinking.
And speaking of reading tea leaves, I wonder if Appendi/Blakely/Booker issues came up in today's Supreme Court oral argument in Shepard v. US. The SCOTUS Blog has this helpful summary of the case, and I have highlighted previously here that the case might provide the Court a chance to speak to the continued validity and scope of the Appendi/Blakely "prior conviction" exception.
Tomorrow's the big day?
Marty Lederman over at the SCOTUS Blog is reporting here that "[t]omorrow the Court will issue one or more opinions from the eleven arguments in the October sitting." I would be shocked if the High Court were to issue an opinion on another case before completing Booker and Fanfan, and thus I think tomorrow is the big day.
Readers are encouraged in the comments to predict the outcome, the authors of opinions and anything else that strikes them as we seem to be 24 hours and counting to a decision in Booker and Fanfan.
Over 2 million prisoners and counting
The Justice Department's Bureau of Justice Statistics released yesterday its data-rich bulletin, "Prisoners in 2003," which provides a wealth of information about national correction rates. The lead in this NY Times story about the report highlights that "the number of inmates in state and federal prisons rose 2.1 percent last year, even as violent crime and property crime fell." However, as TalkLeft highlights here, there are many other noteworthy national numbers in this report. The one that always catches my eye is total prisoners, and the report indicates that 2,212,475 total persons were behind bars in the US on December 31 last year.
Especially when our national dialogue is about a divided country, I find it especially interesting to focus on the state-level data in this amazing report. Consider, for example, that:
Eleven States exceeded the national prison incarceration rate of 482 per 100,000 residents, led by Lousiana (801), Mississippi (768), Texas (702), and Oklahoma (636). Nine States, including Maine (149), Minnesota (155), and North Dakota (181), had rates that were less than half the national rate.
But, of course, total prison populations tell only part of the story; rates of change are also crucial to understanding the true state of sentencing and corrections today. So consider:
Between January 1 and December 31, 2003, North Dakota experienced the largest increase in prison populations (up 11.4%), followed by Minnesota (10.3%), Montana (up 8.9%), and Wyoming (up 7.8%). Eleven States experienced a decline. Connecticut had the largest decline (down 4.2%), followed by New York (down 2.8%), Michigan (down 2.4%), and New Jersey (down 2.3%). In absolute numbers of inmates, 4 jurisdictions grew by at least 2,000 inmates during 2003. The Federal system (up 9,531), experienced the largest growth, followed by Texas (up 4,908), Florida (up 4,384), and California (up 3,126). New York and Michigan had a drop of at least 1,000 inmates (down 1,867 and 1,233, respectively).
November 7, 2004
Imagining a "Sentencing Judges Hall of Fame"
In a (personal favorite) post here last month, I cast current Supreme Court Justices as legendary baseball players while speculating about who would write the opinion for the Court in Booker and Fanfan. Today, I found myself imagining a "Sentencing Judges Hall of Fame" — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system. (Compare the mission statement of the Baseball Hall of Fame.)
The first inductee of the Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms. (Compare the "First Five" in the Baseball Hall of Fame.) But tough questions follow: should there be separate capital and non-capital wings, state and federal wings, trial and appellate wings? Would Supreme Court Justices and judges who serve on sentencing commissions have an unfair advantage because of the visibility of their sentencing work? Would pre-guidelines judges be unfairly disadvantaged for sentencing during the "dead law" era?
You should blame these perhaps silly ruminations on US District Judge Nancy Gertner, whose latest sentencing effort made me want to bestow some kind of award. This weekend I had a chance to read Judge Gertner's amazing opinion in US v. Green, 2004 WL 2475483 (D. Mass. Nov. 03, 2004) (also available here), in which she astutely explains why in a federal capital case she "will impanel two different juries, if necessary, for each death-eligible defendant, one jury to determine guilt or innocence and the other to reject or to impose the death penalty." (A Boston Globe account of the decision is available here.)
Of course, regular readers know we can thank Judge Gertner for trenchant Blakely analysis in US v. Mueffelman, 327 F. Supp. 2d. 79 (D. Mass. 2004). Moreover, in the last month alone, Judge Gertner has added to her corpus of compelling sentencing opinions with US v. Woodley, 2004 U.S. Dist. LEXIS 21904 (D. Mass. Oct. 29, 2004) and US v. Jurado-Lopez, 2004 WL 2251832 (D. Mass. Oct. 06, 2004). It seems that Judge Gertner hits a home run every time she steps to the sentencing plate. (However, Judge Gertner's sentencing dingers are not quite as timely as Judge Paul Cassell's recent efforts, and no one can match Judge Jack Weinstein's tape-measure sentencing opinions).
I encourage readers to use the comments to nominate inductees for the Sentencing Judges Hall of Fame. It helps pass the time as we await a decision in Booker and Fanfan, a decision which may change sentencing history and will surely add to modern sentencing lore.
November 7, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (8) | TrackBack
Sentencing in the Sunday news
The newspapers today have an array of interesting reading on an array of interesting topics of sentencing law and policy. The Sunday papers are thus another reminder of how many important non-Blakely topics should be the subject of on-going discussions even in the midst of the Blakely revolution.
For example, continuing the Proposition 66 post-mortem (previously discussed here), today there are thoughtful analyses of the defeat of the effort to amend California's Three Strikes Law in an LA Times article and editorial, and in pieces in the San Francisco Chronicle and the Bakersfield Californian.
Meanwhile, the reality of a commonplace death penalty in the US means too many stories to track regularly. Nevertheless, interesting pieces in papers just today from Kentucky and Mississippi and Texas and Illinois provide a glimpse into the dynamic (and depressing) world of capital punishment.
And the fascinating (and Blakely-impacted) Enron trial in Houston (previously discussed here) has prompted this thoughtful Op-ed in the Houston Chronicle about sentencing in white-collar crime cases. Notably, the piece ends with a strong endorsement of "Blakely-ization":
With the post-verdict [sentencing fact-finding jury] hearings, [US District Judge] Werlein may help ensure that the [Enron] barge trial defendants are sentenced only for crimes the jury actually finds them guilty of. That's not only justice, it's also common sense.
Tracking Blakely in the states
If, as suspected, the US Supreme Court hands down Booker and Fanfan soon, the Blakely story will be become quickly and dramatically "federalized." Technically, Booker and Fanfan are only about Blakely's applicability in the federal system, and the impact of the decision, no matter what it says, on the structure and direction of federal sentencing reform will be profound.
But I will be reading Booker and Fanfan with an eye on what it might tell states about Blakely. Despite all the attention given to federal sentencing, the state sentencing story is probably far more important (because more than 90% of all criminal convictions are in state courts) and certainly far more dynamic (because state sentencing structures are amazingly diverse and are being impacted by Blakely in amazingly diverse ways).
A few weeks ago I detailed here the number of state Blakely cases, and the pace of rulings has only increased of late (with nearly 100 new rulings coming on-line in just the past three weeks). As of this morning, on Westlaw there are 332 on-line state court rulings at least mentioning Blakely, of which 132 come from California's courts alone.
Helpfully, the Vera Institute's State Sentencing and Corrections Program (details here), as well as Professor Kevin Reitz through his work with the ALI (details here), are broadly tracking and working on state Blakely issues. In addition, Michael Ausbrook at INCourts continues to track effectively the Blakely story in Indiana (see his recent posts on Blakely trial, pleas and waivers and on on-going Indiana Blakely cases). And, trying to keep apace with California developments are the folks at both the First District Appellate Project and the Appellate Defenders, Inc.
I am hopeful (though not really optimistic) that I will be able to keep on top of the state story when the federal story shifts into high gear again soon. And I encourage every reader working in state systems and trying to deal with Blakely to help by sending me information and documents of interest.