November 20, 2004
Brief (and compelling) weekend reading about mandatories
In this post, I criticized Utah US District Judge Paul Cassell's decision in the Angelos mandatory minimum case for its summary Eighth Amendment analysis. In addition, I wonder if Judge Cassell considered whether Angelos arguably had a claim based in Due Process and/or the Sixth Amendment stemming from prosecutors' apparent (and successful) efforts to penalize Weldon Angelos for initially seeking to exercise his constitutional right to a trial.
Consider this description from Judge Cassell's Angelos opinion of exactly why Angelos ended up with a mandated 55-year sentence:
[T]he government told Mr. Angelos, through counsel, that if he pled guilty to the drug distribution count and the § 924(c) count, the government would agree to drop all other charges, not supersede the indictment with additional counts, and recommend a prison sentence of 15 years. The government made clear to Mr. Angelos that if he rejected the offer, the government would obtain a new superseding indictment adding several § 924(c) counts that could lead to Mr. Angelos facing more than 100 years of mandatory prison time. In short, Mr. Angelos faced the choice of accepting 15 years in prison or insisting on a trial by jury at the risk of a life sentence. [He] rejected the offer and decided to go to trial. The government then obtained two superseding indictments, eventually charging twenty total counts, including five § 924(c) counts which alone carried a potential minimum mandatory sentence of 105 years....
Perhaps recognizing the gravity of the situation, Mr. Angelos tried to reopen plea negotiations, offering to plea to one count of drug distribution, one § 924(c) count, and one money laundering count. The government refused his offer, and the case proceeded to trial.
Though perhaps the issue was not fully briefed, I think these facts make out at least a colorable claim that prosecutors violated Due Process and/or the Sixth Amendment by penalizing Weldon Angelos for initially seeking to exercise his constitutional right to a trial. I know these claims are at least arguable because I was recently sent a compelling brief from a Pennsylvania case in which exactly these claims are argued.
The case is US v. Hernandez, and the brief you can download below provides another moving example of the power and discretion that federal prosecutors possess due to long, mandatory sentencing provisions.
November 20, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack
Yet another FSR Blakely issue
I am now helping to put the finishing touches on the third Federal Sentencing Reporter issue covering Blakely. This FSR issue, Volume 17, Number 2 (Dec. 2004) has the working title of "Further Implications of Blakely." (Details about the two previous Blakely issues are here and here. FSR subscribers should now have received their hard copies of these issues, both of which can be ordered here and accessed electronically here.)
I suspect FSR Issue 17.2 will be the last we send to press before Booker and Fanfan re-shape the post-Blakely landscape. And though FSR is hard at work on the rest of the issues for Volume 17 — with plans to address in depth topics like criminal history and Blakely in the states — we also hope to be able to provide near instant and thorough coverage of Booker and Fanfan once the decisions are handed down.
Below you will find the contents of FSR 17.2. All of the pieces in draft form can be found elsewhere on this site (use the search box in the left side-bar), except for Mark Harris' "Editor's Observations" which can be downloaded here.
- Mark Harris, Blakely's Unfinished Business Download mark_harris_17.2 Ed Obs.doc
- Douglas A. Berman, Conceptualizing Blakely
- James Felman, How Should the Congress Respond if the Supreme Court Strikes Down the Federal Sentencing Guidelines?
- Peter Rutledge, Apprendi and Federalism
- Jenia Iontcheva Turner, Implementing Blakely
- Stanford Law School Conference, The Future of American Sentencing: A National Roundtable on Blakely
- John Wool, Aggravated Sentencing: Blakely v. Washington Legal Issues for State Sentencing Systems (Sept. 2004)
- Minnesota Sentencing Guidelines Commission, The Impact of Blakely v. Washington on Sentencing in Minnesota (Long-term report Sept. 2004)
A bit of Blakely coverage
This morning we find a number of newspaper stories about Blakely developments in the states:
- this thoughtful article from California discusses a trial court's ruling that prohibited prosecutors from trying to prove certain aggravating factors to a jury in the absence of legislative authorization of the procedure;
- this brief article from Colorado discusses an appellate argument over Blakely;
- this detailed article from Arizona reviews an intermediate appellate court decision — Henderson (discussed here) — and notes issues of continuing Blakely uncertainty.
In other media news, you can listen here to last night's NPR program "On Point," which addressed a range of sentencing issues. The Angelos case (critiqued here) as well as Blakely and drug courts were all subjects of discussion. Most noteworthy in the program was the two callers who presented fairly extreme victim-centered and defendant-centered perspectives on long sentences.
November 19, 2004
The USSC's wonderful data plans
I have on good authority that we will be seeing early next week the US Sentencing Commission's long awaited "15 year report." I know the USSC has been working very hard on this project for a number of years, and the report should be chock-full of data and analysis of the pre-Blakely state of federal sentencing. And I expect that the information and conclusions from the Commission’s comprehensive pre-Blakely assessment of the operation and efficacies of the federal guidelines should be of enormous value to everyone contemplating the post-Blakely direction of federal sentencing reforms.
In addition, I was also giddy to hear from a very trustworthy source that the USSC may also try to release this month, perhaps even before Thanksgiving, some of the preliminary data the USSC has collected concerning the post-Blakely state of federal sentencing. In my testimony to the USSC earlier this week, I stressed the value of public dissemination of that data, and Judge Castillo indicated the Commission would try to release the data as soon as possible. I am both amazed and very gratified to learn that we may possibly see this data within a matter of weeks (and maybe even before John Madden does his annual turkey nonsense).
Of course, if you need a USSC fix before the data deluge, remember that you can access all the written testimony from this week's hearings here, as well as a transcript of the panels (which includes the interesting Q & A portions) here. (My prior summaries of the USSC hearings are here and here.) The transcript of the session with Christopher Wray, Assistant Attorney General, Criminal Division, US DOJ is here, and you can in the Q & A count how often he stressed that he is "not endorsing but merely describing" (quite favorably) the Bowman fix.
November 19, 2004 in Blakely Commentary and News, Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos
I have finally had a chance to give Utah US District Judge Paul Cassell's decision in the Angelos mandatory minimum case a careful read (basics here). I am glad to see that the decision has the editorial pages humming, with strong pieces in the LA Times, the Daytona-Beach News Journal, and the Salt Lake Tribune (and I will be doing this NPR radio show on the topic tonight).
I was particularly pleased to see Judge Cassell's home paper, the Salt Lake Tribune, assail Judge Cassell for having "passed the buck." For though the Angelos opinion is remarkable in many respects, the opinion is also remarkably disappointing in its fairly summary treatment of Weldon Angelos' strongest claim — namely that his sentence constituted cruel and unusual punishment under the Eighth Amendment.
Part of what makes the Angelos opinion remarkable was that Judge Cassell spends 40 pages considering whether the 55-year gun enhancement was "irrational" (which seems like a stretch in light of deterrence arguments), but then he spends less than 10 pages considering whether this enhancement is "cruel and unusual" (which seems far more plausible in light of the modern proportionality/retributivist understanding of that provision). Moreover, after explaining for 5 pages that "the three Harmelin factors ... lead to the conclusion that Mr. Angelos' sentence violates the Eighth Amendment," Judge Cassell in two pages summarily concludes that, because in Hutto v. Davis, 454 U.S. 370 (1982), the Supreme Court upheld 40-year sentence in a marijuana case, Mr. Angelos' "Eighth Amendment challenge must be rejected."
With all due respect to Judge Cassell, the truncated analysis here suggests the Judge simply got tired. Even beyond the fact that Hutto is arguably not good law after Solem and Ewing (a point which Judge Cassell notes), and even beyond the fact that the scope of the Eighth Amendment "is not static [and] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. at 101, the holding and facts in Hutto are readily distinguished. As a matter of context, the Hutto ruling (as well as Harmelin and Ewing) is influenced by principles of federalism not implicated in the review of a federal criminal sentence. And, even more tangibly, the defendant Davis in the Hutto case "previously had been convicted of selling LSD, and the two offenses for which Davis had just been found guilty were committed while on bail pending appeal from the previous conviction for selling LSD." Thus, in Hutto the court considered a true repeat offender, which readily distinguishes that case from the case before Judge Cassell.
November 19, 2004 in Clemency and Pardons, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Seeking death for Scott Peterson
As regular readers know, I typically try to avoid blogging about high-profile criminal law cases (unless and until there is a Blakely issue). But now that the Scott Peterson case is past the guilt stage and moving to sentencing, I guess it is time to jump into this fray.
First, let me spotlight the article noted today by CrimProf blog here about the enormous costs of the guilt phase of the Peterson trial. Obviously, all these costs are not simply the product of the fact that California is seeking the death penalty against Peterson, but it is certainly reasonable to view that fact as a contributing factor. (For a lot more on the economic costs of the death penalty, the Death Penalty Information Center has the data here.)
Second, as well covered in articles like this one, Peterson's defense team has moved for a new jury for the penalty phase of his trial. I do not think a copy of the motion is publicly available, but I bet it is an interesting read. I wonder if Peterson's high-profile attorneys thought to cite this report from the Massachusetts' Governor’s Council on Capital Punishment which contends that a fair death penalty system should grant capital defendants the right "to have a new jury selected for the sentencing stage."
Third, as is very well documented by the FDAP Blakely Page and the ADI Blakely Page, Blakely has made a stunning mess of sentencing in California. Ergo, if Scott Peterson avoids a death sentence, it it possible that Blakely issues could arise at his sentencing (though perhaps some California lawyers can clarify this issue).
Fourth, as detailed in this prior post, even if Scott Peterson is sentenced to death, there is a reasonable basis for predicting he will die a natural death on death row before the state of California will be able to actually get Peterson to the execution chamber. At the very least, we can be certain that Peterson will get to see (dozens of) TV movies about his case before his day with the death chambers ever arrives.
Killing study of the death penalty in Ohio
With many thanks to Chris Geidner at LawDork for the pointer, it now appears that the bill to study the death penalty in Ohio, which a bi-partisan coalition of representatives supported in the Ohio House, will not make it out of the Ohio Senate. Coverage in the Other Paper and the Toledo Blade and the Cincinnati Inquirer explains why the bill (previously discussed here and here) will not even get to be debated in the Ohio Senate.
Chris has some appropriately biting commentary about this development here, and I share his disappointment in the unwillingness of Ohio Senate President Doug White to allow the bill to even come up for a vote in the Senate. In this story, White is quoted as saying "I'm comfortable with where we are and how the death penalty's worked in Ohio. I don't think we've abused it." But two-thirds of the Ohio House indicated it would just like a study of Ohio's capital punishment system so that everyone can be so "comfortable" with Ohio's machinery of death. The bill, it must be recalled, simply provided for a study and did not call for any changes while the system was being examined.
Notably, as the study noted here reveals, Ohio in 2004 is second only to Texas in the number of executions. As an Ohio citizen, I really wish the state would be willing to take a closer look at the killings it is doing on my behalf (even if only to make sure that the expensive death penalty system is a good use of my Ohio tax dollars).
Resources on drug courts
With so much going on in the sentencing world, yesterday I buried here the link to Eighth Circuit Judge Donald Lay's powerful NY Times op-ed calling for greater use of drug court programs in the federal system. Here's one of many highlights from the piece:
Given the success of drug courts in the states, the federal government should study how to modify its sentencing to incorporate elements of the drug court model and to assess the effectiveness of community-based alternatives to imprisonment for nonviolent federal drug felons.
In conjunction with giving this insightful op-ed some more attention, I thought it might be useful here to marshal some of the terrific on-line resources concerning drug court programs. Though this is only a tiny slice of the materials to be found on the web, persons interesting in learning more about drug courts might consult:
- This (link-filled) list of "Drug Court Resources - Facts and Figures" from the National Criminal Justice Research Service
- This data-rich account of drug court facts from the National Drug Court Institute
- The home page for the OJP Drug Court Clearinghouse and Technical Assistance Project
- This drug courts page for the White House's Office of National Drug Control Policy
- Descriptions and accounts of drug courts in California and New York and Texas and Utah
UPDATE: With thanks to a wonderfully helpful reader, here is a link to an encouraging article about drug court successes in south Boston on a webpage that also has links to additional drug court articles.
It's perhaps a sober reminder of the realities of criminal justice that President Bush's ceremonial pardoning of turkeys received a lot more press than his actual pardoning of people. (As an aside, I cannot help but wonder if Alberto Gonzales wrote clemency memos for Biscuits and Gravy, the pardoned turkeys (background here).)
In any event, as this CNN story details, the President did issue six human pardons this week, all to persons who committed minor frauds long ago. A few more details on some of the persons pardoned can be found here and here.
In response to an e-mail inquiring about these pardons, Margaret Colgate Love who served for twenty years in the US Department of Justice, including seven as US Pardon Attorney under the first President Bush and President Clinton, wrote a brief note detailing President Bush's approach to pardons and commutations during his first term. You can download the full text of Margy Love's note below, and here are some highlights:
Case statistics released last month by the Office of the Pardon Attorney in the Justice Department show that, since assuming office, Bush has granted a total of 25 pardons while he has denied 839 applications. His pardon grant rate is thus about 3% of all requests acted upon. (He has also denied 3,446 commutation requests, and that grant rate has too many zeroes to be meaningful.) By contrast, most Presidents in the past 100 years have granted between 20% and 30% of the pardon applications they considered. (The exception is the first President Bush, whose 76 pardons represented only 11% of the requests he considered, but his low grant rate is because DOJ sent him almost nothing but denial recommendations — I know, I did it! His son doesn't have the same excuse.) The OPA statistics indicate that there are 744 pending applications for pardon still awaiting action (plus 1729 requests for commutation).
All but one of Bush's 25 pardons have been utterly unremarkable, the exception being the deathbed pardon of David McCall, the former mayor of Plano, Texas, who applied on a Wednesday and received his grant on Friday. This is a guy who has definitely decided to play it safe in the compassion department!
UPDATE: Amazingly, the mysterious (and always amusing) Milbarge over at Begging the Question, as detailed here, "obtained a copy of just such a [Gonzales Turkey clemency] memo, apparently written on a 1973 IBM Selectric typewriter."
November 18, 2004
The brewing battle over the Bowman fix
As detailed by the media here and lamented already by some here and here, the testimony presented to the US Sentencing Commission by Christopher Wray, Assistant Attorney General, Criminal Division, US Department of Justice suggested that DOJ is growing to view the so-called Bowman fix (aka "topless guidelines") as the best response if/when SCOTUS applies Blakely to the federal sentencing guidelines. (You can access the Wray testimony here, and get background on the Bowman fix here and here.) I should note that Wray repeatedly stressed to the USSC that he was just "describing and not endorsing" the Bowman proposal, but it seemed clear to everyone at the hearings that he was suggesting this was DOJ's preferred response to Blakely.
However, as detailed in this prior post, there was far more support from other witnesses for simplified, Blakely-ized guidelines as a better response in the federal system. Interestingly, even Professor Frank Bowman stressed that he saw his "fix" as only a short-term solution and that he favored simplified, Blakely-ized guidelines as a better long-term fix. Likewise, Professors Bibas and Rosenzweig, the only other witnesses expressly endorsing the Bowman fix, both favored it only as a short-term solution and advocated simplified, Blakely-ized guidelines for the long-term. However, it appears that DOJ is favoring the Bowman fix (aka "topless guidelines") as a long-term solution.
I will have a lot of comments in the coming days about the litigation headaches that I see inherent in the Bowman fix, but for now I can only spotlight the interesting tussle which might ensure if and when DOJ starts actively endorsing the Bowman fix, while other groups start actively pushing for simplified, Blakely-ized guidelines. One group favoring the simplified, Blakely-ized guidelines is the American Bar Association, and Jim Felman sent to me today a general statement of principles supporting the ABA's approach. Similarly, Professor (and former Commissioner) Michael Goldsmith also endorsed simplified, Blakely-ized guidelines, and I can also provide below the outline of his proposal as well.
Blakely federalism in action
With this week's US Sentencing Commission hearing (highlights here and here, commentary coming soon) and a ruling in Booker and Fanfan likely only a few weeks away, it is dangerously easy get caught up in all the compelling federal Blakely stories. But I continue to be most amazed as I observe and try to monitor the dynamic (and now very fast moving) state Blakely dramas that are unfolding nationwide.
In posts here and here, I documented a number of the major recent state ruling from the past week alone. And to that list we should now add State v. Henderson, 2004 WL 2608286 (Ariz. App. Div. 1, Nov. 18, 2004), which weighs in on the important question (recently discussed in Illinois as noted here) concerning whether Blakely error is "structural error requiring automatic reversal." (Henderson holds, by a 2-1 vote, that it is not.)
In addition, I can now share noteworthy commentary on some of these state developments: (1) here is a newspaper article from California on a discussing Blakely reversal; (2) here are thoughtful comments suggesting Ohio courts are illegitimately dodging Blakely; and (3) for downloading below is an impressive set of comments about the aftermath of the major New Jersey ruling in State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004) prepared by Steve Sanders, who wrote an amicus brief in the case for the Association of Criminal Defense Lawyers of New Jersey.
Brief summary of USSC hearing highlights
Though others surely do not share my obsessions, two days of USSC hearings on Blakely was pure rapture to this sentencing geek. I could easily write a book about all the (big and small) developments and insights to be drawn from the hearings, but the realities of time means a few summary posts here will have to suffice. But I highly encourage all Blakely addicts to make the time to read the written testimony the USSC has effectively assembled here. There are gems in each and every piece, and I won't be able give all the important items their due.
To begin, I want to complement the Commission for running the hearings so well and also complement all the Commissioners both for their cordiality and for the insightfulness of their questions and comments. I believe this was Judge Hinojosa's first hearings as Chair, and he kept the sessions moving along effectively and added a needed touch of levity at times. Indeed, perhaps the most exciting moment was when Judge Hinojosa hinted that, after the USSC dealt with Blakely, he personally was going to bring order to the college football BCS system (though, with Judge Hinojosa at the helm, I suspect his beloved Longhorns might move up even higher in the BCS rankings).
In a series of subsequent posts, I plan to review distinctly the views from the judges, from the litigants (defense bar and DOJ), and from the academy. However, I think a series of summary points might be a good way to start:
- Everyone seemed to endorse the concept of binding guidelines — there was virtually no support for a wholly advisory system from any quarter (although the judges, who might be most likely to endorse such a system, did not expressly weigh in with any specific recommendations).
- Nearly everyone stressed the importance of trying to simplify the federal sentencing guidelines, although precisely what features of the existing guidelines most needed to be simplified was not always clearly stated.
- There was a lot of interesting and dynamic discussion of the timing and timelines for post-Booker/Fanfan changes to the guidelines. The judges stressed the need for clear guidance in the wake of a SCOTUS ruling, and the Commissioners seemed to appreciate the need to move fast after Booker/Fanfan come down. But whether and how there could/should be a short-term fix followed by a long-term fix was a subject of much debate.
- The long-term vitality of Harris, the decision approving judicial factfinding for mandatory minimum sentencing, was also the subject of interesting and dynamic discussion. Of course, Harris' vitality is extraordinarily important if Congress and/or the USSC adopt the so-called Bowman fix (aka "topless guidelines") in the wake of Booker/Fanfan.
- The essential idea of simplified, Blakely-ized guidelines was probably the favored proposal put forth by most of the presenters, but the USSC's ability to make that happen — both as a matter of timing and as a matter of the USSC's authority — pose a number of tough issues.
- Professor (and former Commissioner) Michael Goldsmith made the very sound suggestion that the Commission try to speak with a unified voice when offering specific proposals and recommendations to Congress. But the Commissioners' diverse questions (combined with the many tough legal, political and practical issues that lie ahead) suggest that unity may be easier said than done.
- I came away with the feeling that both the holding and the dicta in Booker/Fanfan will have a profound impact on whether (assuming Blakely applied to the federal system) the Bowman fix or simplified, Blakely-ized guidelines becomes the immediate front-runner for the future of federal sentencing.
I could — and later will — go on and on. But for now, Ellen Pogdor over at White Collar Crime Prof Blog has a lot of insightful points here about the apparent move by DOJ toward the Bowman fix.
November 18, 2004 in Blakely Commentary and News, Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
So many more state Blakely rulings
The noteworthy Blakely rulings from state courts continue to come in at a fast and furious pace (see here for more recent evidence). Already this week alone, we have more consequential rulings from Indiana, Ohio, New Jersey and Washington (and, of course, the obligatory weekly collection from California). Also, just on line is an important Delaware ruling from last week.
Though all of these decisions deserve fuller discussion, today the best I can reasonably do is provide summary highlights. I encourage readers to use the comments to note any exceptional features of these cases that merit spotlighting:
- In Benge v. State, 2004 Del. LEXIS 506 (Del. Nov. 12, 2004), the Delaware Supreme Court declared "Blakely does not impact Delaware's sentencing scheme because the SENTAC guidelines are voluntary and non-binding."
- In Lampitok v. State, 2004 WL 2590817 (Ind. App. Nov. 16, 2004), the court drops a footnote to give the "prior conviction" exception a broad application (INCourts provides more details here);
- In State v. Berry, 2004 WL 2580555, 2004-Ohio-6027 (Ohio App. 12 Dist. Nov. 15, 2004), the court articulates two bases on which the court claims Ohio's sentencing system completely escapes the application of Blakely;
- In State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004), the court concluded New Jersey's presumptive sentencing scheme is generally impacted by Blakely (and, again, INCourts covers the highlights here);
- In State v. Alkire, 2004 WL 2580772 (Wash. App. Div. 1, Nov 15, 2004), the court upholds a sentence based on the "prior conviction" exception (and does despite the fact the defendant's "invites this court to abandon the 'crumbling foundation' of Almendarez-Torres and the prior conviction exception").
And, for continuing coverage of the continuing stream of California cases, remember that the First District Appellate Project is here keeping up with recent major rulings, and Jonathan Soglin here notes a California published opinion that apparently breaks a little new ground.
Lots of sentencing in the papers
I am feeling a bit of sentencing overload, as I have a lot of commentary percolating about the US Sentencing Commission's hearing this week, and also about Judge Paul Cassell's work in his noteworthy sentencing rulings in Angelos and Visiniaz. In addition, as I will post soon, there is a lot of Blakely state news to discuss as well. Fortunately, the press helps cover and comment on some of these matters.
For starters, Gina Holland has helpful this account at law.com of the USSC hearings. This article correctly observes that the Justice Department essentially backed the "Bowman fix" (or "topless guidelines"), and I will have a lot more on this topic later today.
Meanwhile, the Angelos decision is the subject of continuing coverage in the Salt Lake Tribune, Knight Ridder Newspapers and the New York Times, and broader commentary on the opinion came be found at The Republican and the Cato Institute. Relatedly, Kemba Smith, a first-time drug offender subject to a long mandatory sentence who was ultimately pardoned by President Clinton, had this op-ed in yesterday's USA Today.
Meanwhile, back in the NY Times, Eighth Circuit Judge Donald Lay has this potent op-ed calling for the establishment of a federal drug courts program. And, on a different front, this article details that New York state is unlikely to legislatively fix its death penalty statute (which, as detailed here, was declared unconstitutional by New York's highest court on the same day Blakely was decided).
November 17, 2004
Judge Cassell's continuing contributions
Utah District Judge Paul Cassell probably had already secured a place in my Sentencing Judge's Hall of Fame even before this week. But his work just yesterday alone highlights his versatility as the sentencing plate.
In addition to issuing his thoughtful and compelling opinion about mandatory minimums in Angelos (basics here, commentary forthcoming), yesterday Judge Cassell also issued an extended and very thoughtful opinion about Blakely's applicability to restitution awards in US v. Visinaiz, No. 2:03-CR-00701 (D. Utah Nov. 16, 2004). I will need some time to consume and analyze this opinion fully, but here's the essentials of Visinaiz (which can be downloaded below):
The court next concludes that the Sixth Amendment right to a jury trial, as expansively interpreted in Blakely, does not extend to restitution awards. Two separate justifications support this conclusion. First, restitution is not a penalty and therefore is simply not covered by the Sixth Amendment. Second, as a matter of historical practice dating to well before the drafting of the Constitution, restitution has traditionally been determined by the judge, not the jury. In light of this history, the Sixth Amendment should not be read as creating a need for jury fact-finding on restitution issues.
Just got home, with LOTS to discuss
I've just gotten home and have just a few moments on-line now to reports how fantastically interesting today's sessions of the USSC hearings were. I will have lots and lots of reports and analysis of what transpired in DC, and also other Blakely news of note, later tonight and over the next few days.
In the meantime, I am very pleased and impressed to see the USSC already has all the written testimony from the hearings available here, including the noteworthy testimony from Christopher A. Wray, Assistant Attorney General, Criminal Division, United States Department of Justice here (which I hope to be able to discuss more this evening).
November 16, 2004
Judge Cassell laments, but imposes, harsh mandatory sentence
In a remarkable (and remarkably long) opinion, Utah US District Judge Paul Cassell today imposed a 55-year mandatory minimum sentence on Weldon Angelos, a 24-year-old music executive convicted of marijuana dealing a related firearms offenses. Judge Cassell called the sentence he feld oblidged to impose "unjust, cruel and even irrational," but he ultimately concluded that he "must reject Mr. Angelos' constitutional challenges."
More (a lot more) later if and when I have access to a computer that works.
I am at a borrowed computer just long enough to report that the USSC's hearings today were quite interesting, especially as everyone is forced to shadowbox with the anticipated holding of the Supreme Court in Booker and Fanfan. I hope to have a chance to get on-line tonight to discuss interesting facets of today's hearing more fully.
But, in the meantime, we can all join in a game of anticipation with more than just a SCOTUS decision on the horizon. I was reminded today that Judge Paul Cassell is scheduled to issue in the Angelos case his long awaited ruling (previously discussed here and here) on the constitutionality of certain harsh federal mandatory minimum sentences. In addition, at the USSC hearing there was a semi-announcement that the Commission might soon be issuing it's long-awaited 15-year report on the guidelines (which, though based on pre-Blakely data, should provide lots of food for the thought in the post-Blakely world).
Off to DC and off-line for a while
I am about to head to the airport to fly to Washington DC to attend the US Sentencing Commission's public hearings on Blakely (details are here and here). I hope to be able to get on-line at least briefly tonight to report on today's testimony, although I may not be able to deliver a full report until late Wednesday or Thursday.
In the meantime, note that there is plenty of Blakely reading to keep us all busy: the highlights from last month's Stanford Blakely conference; some of the written testimony submitted to the USSC; the assembled archives of recent blog posts; and, of course, the collection of Blakely Basics materials.
Readers looking for information on a particular topic should also note that the search box in the left-hand column works quite well, and the category archives are also helpful in this regard.
Exploring the nature of Blakely error in Illinois
This special thanks to the reader for sending the decision along, available for downloading below is what may be the first major Illinois Blakely decision, People v. Nitz, No. 5-98-0657 (Ill. App. Nov. 10, 2004). This case has a long, winding procedural history and involves Apprendi as much as Blakely.
The decision gets interesting when the court explains its view that, after Blakely, the denial of Sixth Amendment rights ought now to be viewed as structural error and not allow for harmless error analysis. The court goes on to explain, however, that it feels it must nevertheless follow extant Supreme Court and Illinois precedent to the contrary:
Although we firmly believe that a majority of the justices on today's United States Supreme Court would never allow the harmless error analysis that we are about to engage in, that majority has remained silent about Neder v. United States, the case upon which People v. Thurow rests. The Illinois Supreme Court has declared that it is bound by the Neder decision in the absence of a United States Supreme Court opinion expressly overruling it.
Given the position taken by our betters, we cannot forego a harmless error analysis. People v. Thurow says what it says, and absent an Illinois Supreme Court holding to the contrary or a United States Supreme Court decision that expressly overturns Neder v. United States, we are bound to follow People v. Thurow.
November 15, 2004
The AG and the death penalty
Professor Mark Godsey over at CrimProf Blog posts here about AG nominee Alberto Gonzales' clemency memos (which I previously discussed here). Also, last week, Phillip Carter wrote on this issue for Slate here and the occasional newspaper article noted the issue as evidenced here.
Meanwhile, over at ACSBlog, Josh Kobrin has this thoughtful post about out-going AG John Ashcroft's record on the death penalty.
Collection of USSC written testimony
With many thanks to the participants for sending their efforts my way, I can now post a sizeable collection of the written testimony submitted by persons scheduled to testify at the US Sentencing Commission Blakely hearing over the next two days. (The hearing details are here and here.) Specifically, I have testimony from:
Stephanos Bibas, Associate Professor, The University of Iowa College of Law
Douglas A. Berman, Professor, Michael E. Moritz College of Law, The Ohio State University
Mark W. Osler, Associate Professor, Baylor Law School
David M. Porter, Assistant Federal Defender, Federal Defender’s Office, Sacramento, CA
Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation, Adjunct Professor, George Mason University School of Law
More for the voracious SL&P reader
I promised lots of reading for the Blakely addicted before I head to DC for the US Sentencing Commission hearing, and thanks to my wonderful research assistant I can now really deliver on that promise.
Continuing to display his incredible cut-and-paste talents, my RA has finished the latest printer-friendly Word version (with imbedded links and a TOC) of the text of this blog covering the last six weeks of posting. It can be downloaded below, while prior installments organized by date can be found here and here (and a slightly dated document with the state Blakely entries can be found here).
SCOTUS reversal of death sentence
Though it appears that we have at least two more weeks to wait for Booker and Fanfan (details here), the Supreme Court made a little sentencing news today by issuing a per curiam opinion reversing on Penry II grounds a Texas death sentence in Smith v. Texas (available here). Those of you who know too much about capital litigation likely do not need me to explain what a reversal on Penry II grounds means; anyone needing more explanation can get a brief account of the Smith case here from the SCOTUS Blog and a full account of the decision from this AP report.
Highlights from the Stanford Blakely conference
I will likely be off-line for big blocks of time tomorrow and Wednesday as I travel to DC to participate in the US Sentencing Commission's big hearing to consider Blakely issues. The agenda for the hearings is now on-line here, and later today I hope to post my written testimony and the testimony that I have received from some of the other panelists.
Before I leave I will be providing a lot of reading material for any and all Blakely addicts. In addition to a wealth of USSC testimony I hope to post later today, I now have a terrific "highlights" document (available for downloading below) prepared by Professor Bob Weisberg and other folks involved in the great event last month at Stanford Law School, entitled "The Future of American Sentencing: A National Roundtable on Blakely." (Background on the event can be found here and here.) The Federal Sentencing Reporter plans to publish this version of the proceedings of the event, which is a condensed and edited transcript of the six "roundtable" discussion sessions that were conducted at Stanford.
Examining the examining of Ohio's death penalty
As detailed here, an unexpected coalition of Republicans and Democrats joined together in the Ohio House last week to approve a bill requiring an in-depth study Ohio's capital punishment system. In today's Akron Beacon Journal, this thoughtful article explores various explanations for this unexpected development and suggests it "reflected both a national debate over moral values as well as old-fashioned legislative maneuvering."
I have not heard any additional word about the likelihood of this bill being passed by the Ohio Senate, but I hope the good idea of an Ohio death penalty study does not just fade away. As detailed in this recent government report on the state of capital punishment in the United States (discussed previously here), Ohio is number two behind only Texas in the number of executions in 2004, and Ohio's death row is the fifth largest in the nation. Taking a closer look at Ohio's capital laws and practices seems quite sensible as the state continues to make the death penalty an integral component of its criminal justice strategies.
Mark your Blakely calenders
Though, as noted here, it appears we still have a wait for Booker and Fanfan, those interested in contemplating the future of the federal sentencing system have no shortage of exciting events this week.
For example, in New York on Monday, Nov. 15, 2004 at 6 pm, the Jacob Burns Ethics Center of the Benjamin N. Cardozo School of Law/Yeshiva University is having a program entitled "An End to the Federal Sentencing Guidelines?: 20 Years of Federal Sentencing Reform at Issue Before the United States Supreme Court." This program, which will be moderated by Adam S. Lurie, is scheduled to include criminal defense attorney Josh Dratel, former US District Judge John S. Martin, former Assistant Attorney General James K. Robinson, and Yale Law School Professor Kate Stith. More details concerning this event can be found here.
Then, in Philadelphia on Tuesday, Nov. 16, 2004 at 5 pm, a program entitled "Crime and Punishment: Federal Sentencing Guidelines" is the co-production of Justice Talking and the National Constitution Center. The guests for the event are Christopher Wray, Assistant Attorney General for the Criminal Division, and former US District Judge John S. Martin. More details concerning this event can be found here and here.
And, of course, in Washington DC on Nov. 16-17, the US Sentencing Commission is holding public hearings to discuss Blakely and the future of federal sentencing. I hope to be able to post the full details of this event, along with some of the written testimony, by late Monday before I head to these hearings myself.
November 14, 2004
Still more state Blakely rulings of note
With Booker and Fanfan apparently still weeks away, we fortunately have more than enough significant state developments to keep Blakely fans busy. Last week, for example, major Blakely decisions came from intermediate appellate courts in Arizona, Indiana, Oregon, and Tennesse (and, of course, California also contributed yet another dozen or so appellate court rulings involving Blakely issues).
Because I am busy trying to write my testimony for the US Sentencing Commission's hearings this week, I can only provided a cursory overview of these state developments:
- In Arizona v. Resendis-Felix, 2004 Ariz. App. LEXIS 165 (Ariz. Ct. App. Nov. 10, 2004), the court reverses and remands on Blakely grounds, and there is a very interesting dispute between the majority opinion and a concurrence concerning the nature and review of a Blakely error.
- In Traylor v. State, 2004 Ind. App. LEXIS 2229 (Ind. Ct. App. Nov. 10, 2004), the court reverses an aggravated sentence on Blakely grounds; the highlights are here courtesy of INCourts.
- In State v. Fuerte-Coria, 2004 Ore. App. LEXIS 1462 (Ore. Ct. App. Nov. 10, 2004), the court refuses to find (an unpreserved) Blakely error because it is not clear Blakely extends to the imposition of consecutive sentences on the basis of judicial findings.
- In State v. Pierce, 2004 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Nov. 2004), the court reduced one part of the defendant's sentence on Blakely grounds, but upheld the imposition of consecutive sentences over a Blakely objection.
The decline of death?
This CNN.com article provides, under the headline "Death sentences at 30-year low," the highlights of the latest official accounting by the Bureau of Justice Statistics of the state of capital punishment in the United States. The full report can be accessed here, and it provides a wealth of information about the laws and practices of the death penalty in the United States.
As you will see in the full report, even though the national number of executions and death sentences imposed continues to decline, the story of capital punishment remains a regional story. The great majority of death sentences and executions take place in the south; interestingly, in 2003 the west had no executions but a fair number of death sentences, while the midwest had a relatively sizeable number of executions but relatively fewer death sentences.
Responding to Blakely in North Carolina
This article in the New Bern Sun Journal from North Carolina reports that a subcommittee of the North Carolina Sentencing and Policy Advisory Commission "has recommended that aggravating factors and some issues related to prior records be submitted to a jury to determine if they exist."
In the article, John Madler, the associate director of the Commission, highlighted why this recommended modification of N.C. sentencing practice, and more generally "the Blakely earthquake," are not that disruptive in North Carolina:
The change would likely affect a comparatively small number of cases, he said. "Roughly 7 percent of the people who go to prison have an aggravated sentence," Madler said....
The U.S. Supreme Court's ruling would likely have less of an effect in North Carolina than in some other states because factors such as previous records are already taken into account in the law and are not left up to a judge to decide, Madler said.
"It's not that big of a deal in North Carolina, compared to other states," Madler said. "It's just a piece of our process, rather than a whole structure change."