November 27, 2004
Feeney speaks about Blakely
This intriguing Orlando Sentinel article — which covers sentencing topics ranging from Florida's three strikes law to how cost concerns have prompted many states in recent years to reconsider mandatory-sentencing laws — includes some fascinating quotes from Tom Feeney, the US Representative from Florida who introduced the notorious Feeney Amendment to the 2003 PROTECT Act (details here from the NACDL).
Not surprisingly, Rep. Feeney states, quite aggressively, that Congress could respond to invalidation of the federal guidelines by passing a raft of mandatory sentencing provisions. But, somewhat surprisingly, Rep. Feeney also suggests he thinks some sentencing terms could be reduced. Here are the Feeney highlights, which includes a brief defense of the Feeney Amendment, from the article:
"If they come down and undermine the whole way the sentencing guidelines work, the only option for Congress may have is to enact enhanced mandatory sentences," said U.S. Rep. Tom Feeney, R-Oviedo, who has been a leader in Congress in passing tougher sentencing measures. "If the courts throw out the sentencing wholesale, we will have a really big battle."
Feeney is author of the Feeney Amendment, which pressures federal judges to stick to sentencing guidelines by forcing those who vary to explain why.
"What we were finding was the federal judiciary was blatantly -- overtly in some circuits -- almost totally ignoring the guidelines," he said. His provision has drawn harsh criticism, even from Supreme Court justices, who say it interferes with a judge's discretion to weigh factors such as a defendant's background and attitude.
Still, Feeney doesn't expect the court to totally reject federal sentencing rules. "Most court analysts say you can expect the guidelines to be thrown out," Feeney said. "I think that's unlikely. I think they realize they could be going out of the kettle and into the fire. They do not trust Congress to come up with a better solution."...
But even Feeney, Bush's running mate in a 1994 race for governor, thinks some sentences should be lighter. "Mandatory sentences may be appropriate for some crimes but may not be appropriate for all crimes," Feeney said. "If you're not a massive pusher of drugs, what's the best approach? Throw you in prison, or try to rehabilitate you? That's a very legitimate debate." Feeney, who railed against higher taxes as Florida House Speaker, said he's troubled by prison costs, even though Florida is in better financial shape than most states.
Broad public support of juries and Blakely
In the Indianapolis Star today is this editoral calling upon the Indiana Supreme Court, which earlier this month heard the two Blakely cases of Heath and Smylie (background here and here), to rule that the "state must stop issuing criminal sentences based on evidence not considered during trial." Though a bit legally garbled, the editorial provides further evidence that there is broad public support for Blakely and the decision's essential "pro-jury" principle.
Additional evidence of this broad public support can be found in this Houston Chronicle op-ed from earlier this month, which asserts that defendants should be "sentenced only for crimes the jury actually finds them guilty of. That's not only justice, it's also common sense." And, as previously detailed here, in September a Seattle Times editorial highlighted that both candidates for an open seat on the Washington Supreme Court backed Blakely:
[Candidate Jim] Johnson and [rival Mary Kay] Becker both support the U.S. Supreme Court's Blakely decision. There, the court said that in sentencing a felon, a judge could not add three years for cruelty if the cruelty had not been proven to a jury. "The right of trial by jury is fundamental," Becker said. "Those might sound like 'liberal' sentiments, but they are really also conservative."
CJ Rehnquist still ailing and out
According to articles in the AP and the NY times and the Washington Post, Chief Justice Rehnquist will be absent from the Supreme Court through its December session (which start Monday) while he continues to receive chemotherapy and radiation treatments as an outpatient and works from his home.
This news will surely fuel the continued speculation that CJ Rehnquist may retire quite soon, and it also has me still wondering how his health might be impacting the Court's work on the Booker and Fanfan cases. Moreover, it is worth remembering that CJ Rehnquist is one of the critical five votes supporting the decisions in Harris, which allows judges to find facts that enhance minimum sentences, and Almendarez-Torres exception, which allows judges to find "prior conviction" facts that enhance sentences.
Though I am sure the Blakely discussion will take a back seat to other hot-button social issues like abortion, it is worth noting the possible impact on criminal law jurisprudence if and when CJ Rehnquist retires. The future of sentencing reform could be, at least partially, in the hands of CJ Rehnquist's eventual successor.
November 26, 2004
Media reports from the front lines
The print media continues its strong work on the Blakely beat with two well-done articles providing details about how some federal and state courts are coping with the Blakely earthquake.
This article reports on federal court developments in the Western District of Louisiana, and confirms my sense (noted here) that many federal cases are being delayed while we await a decision in Booker and Fanfan:
[S]ome federal court cases are being put on hold in the Western District of the state, which includes Shreveport, Bossier City, Monroe and Lafayette, [U.S. Attorney Donald] Washington said. Hearing dates for sentencing, as well as trials, have been postponed or pushed to future dates.
Meanwhile, this article reports on doings in the Arizona state courts in the wake State v. Henderson, 2004 WL 2608286 (Ariz. App. Div. 1, Nov. 18, 2004), noted here, that addressed how Blakely error should be reviewed. The article confirms that state systems have generally been better able to cope with Blakely because the states do not depend quite as heavily on judicial factfinding.
Be careful what you ask for
Both in posts and in my USSC testmony earlier this month, I asked the US Sentencing Commission to make public ASAP any and all data and anaysis it has concerning both the pre-Blakely and post-Blakely world of federal sentencing. I guess I should be careful what I ask for, since now I am swimming in USSC data and analysis.
As previously discussed here and here and here, the USSC earlier this week released its impressive (and massive) 15-year study. The study — which every member of Congress should be forced to read cover-to-cover before passing any new sentencing legislation — is wonderfully rich with pre-Blakely federal sentencing data and analysis (indeed, far more data and analysis than my feeble brain can completely process).
Moreover, now avaialble for public access here are two USSC comprehensive data tables, which provide a glimpse into how many federal cases in Fiscal Year 2002 involved "Blakely factors." The first table, entitled Use of Guidelines and Specific Offense Characteristics, details the use of each guideline, alternative base offense level, and Specific Offense Characteristic. The second, entitled Chapter Three Adjustments, Use of Specific Offense Characteristics, Upward Departures and Trial Rates, gives the number and percentage of cases involving the use of the pertinent guidelines sections. (I am having some trouble with the links, but they are sometimes operational.) Though hard to process in this form, I am assuming that this data is the foundation for the memo discussed and linked in this post.
More interesting state appellate Blakely decisions
The Blakely work being done in the state appellate courts continues to be quite important and intriguing. Indeed, recent posts here and here and here and here highlight the breath and scope of all the recent state Blakely rulings. And more notable decisions this week come from Indiana and Tennessee intermediate appellate courts.
- From Indiana, we get Trusley v. State, 2004 WL 2676537 (Ind. Ct. App. Nov. 24, 2004), which reaches various important conclusions (both directly and indirectly) in the course of remanding for resentencing because the defendant's "sentence was enhanced because of aggravating factors other than criminal history, which aggravating factors were not found by a jury or admitted by [the defendant]." As he does so well, Michael Ausbrook at INCourts here discusses this Indiana ruling in detail.
- From Tennessee, we get State v. Wallace, 2004 WL 2671619 (Tenn. Crim. App. Nov. 23, 2004), which addresses at length and thoughtfully whether Blakely applies to a judicial decision to impose consecutive sentences. The court initially notes that "it may be logically argued that a consecutive sentence is a greater punishment than a concurrent sentence. If so, Blakely may require a jury's finding of facts, other than prior convictions, as a state law predicate for the imposition of consecutive sentencing." But the court goes on to read the Blakely line of precedents to indicate "that the due process and jury trial guarantees have no application to a judge's consecutive sentencing determination." Consequently, the Wallace court holds "once convictions and the lengths of individual sentences are determined, the judge is the arbiter of whether the sentences shall run concurrently or consecutively."
Race and gender disparity and discrimination
I hope everyone had a joyful Thanksgiving; as I predicted, my day was stuffed with family, food and football. I even avoided thinking about Blakely most of the day (until my wife joked after the meal that she was feeling tired from the tryptophan-fan). And I am already looking forward to all the leftovers.
Speaking of leftovers, a leftover pre-Thanksgiving task for me was to link to this AP story from Wednesday about the US Sentencing Commission's 15-year report. I find it interesting, though perhaps not surprising, that the AP story, as well as the Wall Street Journal story on the USSC report which also ran Wednesday, spotlights issues of race and concerns about racial disparities.
Of course, the intersection of race and the criminal justice system is always an important topic, and the USSC report includes much noteworthy and disconcerting data about race. But, as noted in this prior summary, the USSC report contained much more dramatic news about gender. Here again is the gender "highlight" from the USSC report's executive summary:
Unlike race and ethnic discrimination, the evidence is more consistent that similar offenders are sometimes treated differently based on their gender. Gender effects are found in both drug and non-drug offenses and greatly exceed the race and ethnic effects discussed above. The typical male drug offender has twice the odds of going to prison as a similar female offender. Sentence lengths for men are typically 25 to 30 percent longer for all types of cases.
Though it is perhaps not surprising, I think it is noteworthy that concerns about racial discrimination make headlines while the evidence of gender discrimination does not even get mentioned. Perhaps this is because no one gets seriously aggrieved to hear men are treated more harshly at sentencing. Indeed, this very interesting article from Vermont, entitled "Are women offenders getting raw deal from Vermont courts?," suggests folks do get seriously aggrieved if it seems women are treated more harshly at sentencing than men.
November 25, 2004
I plan to resume usual blogging Friday and through the holiday weekend, but my Thanksgiving day is going to be devoted principally to family, food and football (though not always in that order). However, one post today listing some (of the many) things for which I am thankful seemed appropriate. So, counting down, here's a personal Top 10 list of thanks-inducing realities in my world:
10. I am thankful violent and property crime rates, according to government data, are at their lowest levels since we began surveying criminal victimization in 1973. Though the reasons for low crime rates and the costs/benefits of mass incarceration are widely debated, everyone should be happy about crime reductions.
9. I am thankful the Supreme Court's decision in Blakely has engendered a robust (and overdue) national dialogue on sentencing law, policy, procedures and practices. The Blakely earthquake has led courts, lawyers, policy-makers and the media to examine the rules and realities of sentencing like never before and not a moment too soon.
8. I am thankful that shining a spotlight on injustices — as the press has done quite effectively of late (examples here and here) — can still make a difference. As detailed in this post, effective media coverage can at least sometimes prompt policy-makers to move quickly to address serious criminal justice problems.
7. I am thankful (or at least very hopeful) that we may get a decision in Booker and Fanfan as early as next week. The federal criminal justice system, as well as many state systems, desperately need some Blakely clarification and guidance in order to be able to become fully operative again.
6. I am thankful that the US Sentencing Commission has released its fascinating 15-year report (basics here, highlights here), and also that the USSC now finally has a full complement of Commissioners as detailed here. Armed with great data and a complete team, the USSC can and should take a leadership role in the immediate wake of a decision in Booker and Fanfan.
5. I am thankful that this past week I have helped finalize final edits for the Fall 2004 issue of the Ohio State Journal of Criminal Law. The issue includes a great symposium on Capital Juries, which I will discuss in more detail soon.
4. I am thankful that this past week I have helped finalize final edits for the December 2004 issue of the Federal Sentencing Reporter. I had been hopeful (though not always optimistic) that we would get this third FSR Blakely issue to press before Booker and Fanfan were decided.
3. I am thankful that I have discovered this amazing medium for sharing perspectives on sentencing reform (often while in my pajamas), and also thankful that I have a great job at a great school which not only allows me, but actively helps me, to do my best possible work in this medium.
2. I am thankful that I have made so many friends through this medium. From fellow bloggers linking back and forth to the broad array of readers who have shared experiences and insights and ideas, the interpersonal connections that have been forged through this seemingly impersonal medium have been the most satisfying and meaningful parts of the whole blogging experience.
1. I am thankful that I have people who cared for me even before I discovered the blogsphere, and especially thankful that these people continue to care for me even though I now spend probably more time than I should consumed by the blogsphere.
November 24, 2004
Still more on Blakely in Minnesota
Prompted by my post here earlier today about recent doings in the Minnesota intermediate appellate courts, a very helpful reader sent along a wealth of information about noteworthy Blakely developments in the Minnesota Supreme Court. Here's the report:
- The Minnesota Supreme Court had issued an opinion in a case called Powers v. State, a collateral attack on a conviction following a direct appeal (basically a state habeas) in which they dropped a footnote stating that Blakely "applies Apprendi" and thus Mr. Powers, who hadn't raised an Apprendi issue on his direct appeal, couldn't raise an Apprendi or a Blakely issue. Powers petitioned for rehearing, arguing that the footnote was improper because the Blakely issue hadn't been briefed or argued. The Minnesota Supremes granted the request and deleted the footnote from the opinion in this order.
- The Minnesota Supreme Court hears its first Blakely case on Nov. 30 — the issue is whether Blakely applies to upward durational departures (State v. Shattuck). Later in December, the court hears State v. Leake, which will decide whether it's unconstitutional to increase a defendant's sentence from life with the possibility of parole to life without the possibility of parole based upon judicial factfinding. The Court's argument calendar for December is here.
- The Supreme Court has granted review of three other issues in two cases (as far as I know as of 11/24): State v. Allen — Does Blakely apply to dispositional departures? Does Blakely apply to custody status points (what the guidelines commission called the ticking time bomb)? State v. Henderson — Does Blakely apply to findings required under Minn.'s "career offender" statute, MInn. Stat. sec. 609.1095, subd. 4, which requires five prior felony convictions and a finding that the current crime was committed as part of a pattern of criminal conduct?
In praise of the Fourth Estate
Though the press often gets a bad wrap, in the wake of Blakely and other recently developments, I have been quite impressed with the newspaper coverage of a range of sentencing law and policy issues. The continuing coverage of federal sentencing in the Wall Street Journal — which even had a story about the USSC 15-year report today — merits particular praise. (I'm biased in favor of the WSJ by its coverage of this blog, but biased against it because of being unavailable free on the web). And a good number of other media outlets, as I noted here, have also done great sentencing reporting over the last six months.
It is thus especially gratifying when the work of the Fourth Estate produces tangible policy results, and I am pleased to be able to report on two such developments. First, from Wisconsin there this exciting news that "Lawmakers from both parties in the Legislature have vowed to work to reform a state law that requires criminals to serve their entire prison sentence with virtually no chance for early release." Apparently this vow is a direct response to the on-going series by the Milwaukee Journal Sentinel under the banner "Locked In: The Price Of Truth In Sentencing" (discussed here).
Second, from Florida, we get this exciting news that "Thousands more felons could regain the right to vote in Florida under a series of changes supported Tuesday by Gov. Jeb Bush and members of the state Clemency Board." Apparently this development is a direct response to the recent articles run by the Miami Herald about severe problems in the state's clemency system (which can be accessed here).
Exciting times and meaningful developments, which may provide a lot of folks a lot of reasons to be thankful this holiday season.
Less than a week to wait for Booker and Fanfan?
I have on very good authority that the Supreme Court will be issuing at least one opinion on Tuesday, November 30. Thus, it is highly possible that we are less than a week away from a decision in Booker and Fanfan.
Of course, as detailed here, I sounded a false alarm when I speculated that Booker and Fanfan might be coming down earlier this month. But, with many folks continuing to report to me that so much in the federal sentencing world has been put on hold (responding to posts here and here), I really hope we will be seeing Booker and Fanfan on November 30. The suspense is becoming a bit too much to bear, and the federal criminal justice system needs to start moving forward.
Notably, as detailed here by Michael Ausbrook at INCourts, we have already hit a big Blakely milestone before seeing Booker and Fanfan. Today marks the five-month annivesary of the Blakely ruling, and we now have over 1000 on-line decisions mentioning the decision!! This has to be some sort of record, which in turn provides another testament to the scope and impact of our modern bloated criminal justice system (as highlighted here and here and here).
Lots of Blakely doings in Minnesota
Blakely decisions seem to come from Minnesota in groups, and yesterday three Blakely rulings of note were handed down by the Minnesota appellate courts. Two addressed Blakely's applicability to departures, and one concerned Blakely retroactivity.
In the area of departures, neither State v. Johnson, 2004 WL 2659955 (Minn. App. Nov. 23, 2004), nor State v. Berry, 2004 WL 2663239 (Minn. App. Nov. 23, 2004), appears to break any major new ground. However, Johnson seems important for clarifying that Blakely "applies to durational sentencing departures imposed in the context of a [unique form of Minnesota] stipulated-facts trial."
And Berry seems important for reiterating a previous state ruling in Hanf (discussed here) that "Blakely does not apply to dispositional departures in Minnesota, but [does apply to] durational departures." (Recall that I am a fan of Hanf, because the decision robustly embraces the sort of offense/offender distinction I discuss in this forthcoming article to support a distinction between dispositional and durational departures.)
Addressing retroactivity, State v. Petschl, 2004 WL 2663594 (Minn. App. Nov. 23, 2004), thoroughly and thoughtfully explains its conclusion that "Blakely established a new constitutional rule that does not fall within either of the Teague exceptions," and thus "Blakely does not apply retroactively to collateral review of appellant's 1998 conviction."
Substance, procedure and the future of mandatory minimums
Emily Bazelon, who this summer wrote this great Boston Globe story focused on Justice Breyer's central place in federal sentencing reforms, now has this Slate commentary discussing the Angelos case (background here, commentary here and here) and the future of mandatory minimum sentencing provisions. The piece is generally effective and a useful read, though it ultimately conflates issues of substance and procedure when it concludes with a discussion of Blakely and Harris.
The Slate piece starts solidly by using the Angelos case as a launching pad for the standard policy attack on mandatory minimums. The piece assails mandatories for depriving judges of discretion to make mitigating adjustments in sympathetic cases, and it also effectively spotlights that prosecutors have broad charging and bargaining discretion in the application of mandatories. (I particularly liked the phrase that, for prosecutors, "mandatory minimums are the ace in the hole of plea bargaining.")
After this effective criticism of the substance of mandatory minimums, the piece then suggests that, in the wake of Blakely, the Supreme Court might "throw out mandatory minimums" by reconsidering its 2002 Harris decision (which presently allows judges to find those facts that aggravate minimum sentences). The problem is that a reversal of Harris would not alter the substance of madatory minimums, only the procedures through which these statutes must be administered.
Even if Harris were reversed, Congress and state legislatures could (and likely still would) rely on mandatory minimums to restrict judicial sentencing discretion; a reversal of Harris would simply require juries to find (or defendants to admit) those facts which called for the application of a mandatory minimum sentence. (Notably, in the Angelos case, a jury did find the facts supporting the applicable minimums; a reversal of Harris would do Weldon Angelos no good.)
Of course, many commentators (and apparently even Harris swing vote Justice Breyer) believe that the jury trial rule for sentencing maximums applied in Apprendi and Blakely ought logically also to apply to mandatory minimums. Indeed, the long-term validity of Harris was the subject of much discussion at the US Sentencing Commission's hearings last week (details here). But it is important to be mindful of the fact that, as I explained in this post concerning Booker and Fanfan, the Apprendi/Blakely line of cases are only technically concerned with required sentencing procedures, not specific substantive sentencing outcomes.
UPDATE: Emily Bazelon was kind enough to write to me with a helpful clarification of her point at the end of he Slate commentary. Here's what she had to say:
Of course you're right that Congress could save mandatory-minimums if Harris were overturned.... But my overall point was that a reversal of Harris would spur new debate about whether the federal system should have automatic harsh penalties, as well as how they would be administered with jury fact-finding. In terms of generating momentum to reduce the number of mandatory-minimums — and perhaps, if I'm being optimistic, to get rid of the practice all together — I think a reversal of Harris would be significant. And like all important Supreme Court decisions, it could have other consequences that are hard to foresee.
November 24, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
November 23, 2004
Interesting reports from the front lines
I have received a few interesting responses to my post here this morning, in which I speculated that a vast number of sentencings have been postponed until Booker and Fanfan are decided. Specifically, I have heard from two "in the know" folks in two distinct districts (in different circuits) who report that the pending Booker and Fanfan have had little impact on the federal docket — that is, sentencing hearings are generally not being delayed in these districts while the rest of us wait for Booker and Fanfan to be resolved.
Notably, according to these reports, though sentencings are going forward in these two districts, they are going forward in distinctly different ways under distinctly different understandings of the applicable federal sentencing rules and procedures. These anecdotal reports, of course, just feed my now ravenous desire for post-Blakely federal sentencing data from the USSC.
I highly encourage readers to use the comments or to send me e-mails with additional reports from the field.
Highlights from the Executive Summary of the USSC's 15-year report
I have now had a chance to do a very quick read of the Table of Contents and the Executive Summary the the US Sentencing Commission's 15-year report (basics here). I am already quite impressed with what I see.
Though it will take a lot of time (and a lot of help from others) for me to consume this massive work — which has, to its great credit, lots and lots of data — I thought it valuable to highlight some of the highlights from the report's executive summary. With headings that I have added, here's a list of 10 findings/quotes taken directly from the text of the 15-year report's Executive Summary (sorry for the length, but I wanted to try to capture all the important context):
- OVERALL SEVERITY: Under the guidelines, punishment became not only more certain but also more severe. The proportion of probation sentences declined, use of restrictive alternatives such as home confinement increased, and the rate of imprisonment for longer lengths of time climbed dramatically compared to the preguidelines era.... The abolition of parole, the enactment of mandatory minimum penalty provisions, and changes in the types of offenders sentenced in federal court, along with implementation of the guidelines, all contributed to increased sentence lengths. The influence of each of these factors varies among different offenses.
- DRUG OFFENSE SENTENCING SEVERITY: There has been a dramatic increase in time served by federal drug offenders following implementation of the [Anti-Drug Abuse Act of 1986] and the guidelines. The time served by federal drug traffickers was over two and a half times longer in 1991 than it had been in 1985, hovering just below an average of 80 months. In the latter half of the 1990s, the average prison term decreased by about 20 percent but remained far above the historic average. The decrease in time served during the late 1990s is a result of a trend toward less serious offenses and a greater incidence of mitigating factors in cases sentenced.
- ECONOMIC OFFENSE SENTENCING SEVERITY: The most striking trend in economic offenses is a shift away from simple probation and toward intermediate sentences that include some type of confinement. The use of imprisonment for economic offenders also has increased steadily throughout the guidelines era.
- UNWARRANTED JUDICIAL DISPARITY: The most recent and best ... studies found significant reductions in the unwarranted influence of judges on sentencing under the guidelines compared to the preguidelines era.... The influence of judges [on disparity] was reduced by the guidelines for drug, fraud, firearm, and larceny offenses, though immigration or robbery offenses did not show a reduction.
- OTHER SOURCES OF DISPARITY: [A] variety of evidence developed throughout the guidelines era suggest that the mechanisms and procedures designed to control disparity arising at presentencing stages are not all working as intended and have not been adequate to fully achieve uniformity of sentencing. The Commission, as well as outside observers, have reported that plea bargaining is reintroducing disparity into the system.
- IMPACT OF DEPARTURES: The Commission analyzed the influence of [various other] mechanisms on sentencing variations [and] substantial assistance departures accounted for the greatest amount of variation in sentence lengths — 4.4 percent. Other downward departures contributed 2.2 percent, while upward departures contributed just 0.29 percent. Only 0.07 percent of the variation was explained by use of the guideline range above the guideline minimum. Because data is unavailable on the types of assistance offered by defendants, or the nature of the mitigating circumstances present in cases, it is not possible to determine how much of these sentencing variations represent unwarranted disparity.
- SUBSTANTIAL ASSISTANCE DEPARTURES: Even though the rate of substantial assistance and other downward departures is similar — 17.1 percent and 18.3 percent, respectively — substantial assistance departures account for more variability in sentence length because the extent of departure for substantial assistance is on average greater. Commission research found varying policies and practices in different U.S. attorney’s offices regarding when motions for departures based on substantial assistance were made, and in the extent of departure recommended for different forms of assistance.
- RACIAL/ETHNIC DISPARITY: Across five recent years, a typical Black male or Hispanic male drug trafficker had somewhat greater odds of being imprisoned when compared to a typical White male drug trafficker. No differences were found in non-drug cases. The odds of a typical Black drug offender being sentenced to imprisonment are about 20 percent higher than the odds of a typical White offender, while the odds of a Hispanic drug offender are about 40 percent higher.... Some of these differences might be explained by legally relevant considerations for which we have no data.
- GENDER DISPARITY: Unlike race and ethnic discrimination, the evidence is more consistent that similar offenders are sometimes treated differently based on their gender. Gender effects are found in both drug and non-drug offenses and greatly exceed the race and ethnic effects discussed above. The typical male drug offender has twice the odds of going to prison as a similar female offender. Sentence lengths for men are typically 25 to 30 percent longer for all types of cases.
- SUMMARY CONCLUSIONS: Sentencing reform has had its greatest impact controlling disparity arising from the source at which the guidelines themselves were targeted — judicial discretion. Disparity arising from the decisions of other participants in the sentencing system, or from the process of sentencing policymaking itself, has been less successfully controlled. Statutory minimum penalties are invoked unevenly and introduce disproportionality and disparity when they prevent the guidelines from individualizing sentences. Presentencing stages, such as charging and plea negotiation, lack the transparency of the sentencing decision, making research more difficult. But significant evidence suggests that presentencing stages introduce disparity in sentencing. There is still work to be done to achieve the ambitious goals of sentencing reform in all respects.
November 23, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
The USSC's 15-year report is out!
Strike up the band, put paper in your printer, and grab your reading glasses: the US Sentencing Commission has released its long awaited 15-year report!!
Links to all the parts of the full report, which runs more than 150 pages (not counting extended appendices), can be accessed here. A short press release about the report is here, and the report's lengthy executive summary can be accessed here.
Though providing data and analysis of pre-Blakely federal sentencing, I expect the information and conclusions in this report on the operation and efficacies of the federal guidelines should be of enormous value to everyone contemplating the post-Blakely direction of federal sentencing reforms. I hope to be able to use the up-coming long weekend to report on the report and spotlight items of particular interest for post-Blakely reform thinking.
Congrats to the USSC for getting this report out at such an important time.
I continue to be curious about — and eager to see data concerning — how many federal sentencings have been delayed awaiting a decision in Booker and Fanfan. More anecdotal evidence suggesting many postponements can be found today in stories from Tennessee and Texas involving delayed judicial proceedings for two white-collar offenders pending the ruling in Booker and Fanfan. (A noteworthy previous example can be found here.)
At the US Sentencing Commission hearing last week, I was given the impression that a very large number of the roughly 30,000 federal sentences that should have been handed down since Blakely have been postponed. But I still have no sense of whether this means 1/4 or 1/2 or even 3/4 of all sentencings have been put on hold (and thus, as noted here, I will be thrilled when the USSC is able to make public the preliminary data it has collected concerning the post-Blakely state of federal sentencing).
Whatever the exact number, it seems clear that, after Booker and Fanfan are decided, the lower federal courts will have a huge backlog of postponed cases to process. It will be interesting to watch if the Blakely backup has broad ripple effects next year on the administration of justice in the federal courts.
November 23, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
November 22, 2004
No double jeopardy worries in Washington
In State v. Maestas, 2004 WL 2650646 (Wash. App. Div. 1 Nov. 22, 2004), a Washington intermediate appellate court rejects, after the State conceded a Blakely problem with the imposition of an aggravated sentence based on judicial fact-finding, the defendant's assertion that "to impose such a sentence on remand would violate principles of double jeopardy."
In a thoughtful and thorough opinion, the Maestas court explains why it concludes "that double jeopardy is not implicated in the resentencing of Maestas on remand. Should the court choose to impose an aggravated exceptional sentence following procedures that comply with the dictates of Blakely, double jeopardy does not bar doing so."
I expected today to be a pretty big day in the world of sentencing with the penalty phase of the Scott Peterson trial scheduled to start (background here) and with the US Sentencing Commission hinting that its 15-year report would be released publicly (background here). But it appears we must wait for both of these exciting developments.
As detailed in this AP story, Judge Alfred A. Delucci delayed the start of the penalty phase of Scott Peterson's trial for a week and said "We're going to have to go with this jury" in rejecting Peterson's arguments to seat a new jury. More details about these rulings can be found in this CourtTV story, which suggests that Peterson's lawyers plan to appeal before the new November 30 scheduled start for the penalty phase.
Meanwhile, no news on the from the USSC on the 15-year report, though I remain hopeful that I will get to pour over Commission data while I pour gravy over my turkey left-overs. The USSC does already deserve kudos for having now created this designated webpage for Booker and Fanfan materials. I am hoping we will see data here soon, too.
November 22, 2004 in Death Penalty Reforms, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Recent Ninth Circuit Blakely/Ameline remands
Though not ground-breaking in any significant respect, a few sentencing remands from the Ninth Circuit last week provide another glimpse into the post-Blakely world in the one jurisdiction that has, through its Ameline decision, deemed Blakely applicable to the federal guidelines and also deemed the guidelines severable. (Prior glimpses into life in the Ninth Circuit after Ameline can be found here and here.)
In US v. Parisian, 2004 WL 2633295 (9th Cir. Nov. 19, 2004), the Blakely-problematic enhancements involved role in the offense and drug quantity; in US v. Gordon, 2004 WL 2603622 (9th Cir. Nov. 17, 2004), two defendants get Blakely remands, although the specific enhancements at issue are not specified (and the court reiterates that "Blakely does not affect a restitution order made, as in this case, under 18 U.S.C. § 3663A"); in US v. Burgert, 2004 WL 2580922 (9th Cir. Nov. 15, 2004), the Blakely-questionable enhancement involved flight from an officer.
As noted previously here, in my testimony to the USSC last week, I encouraged the Commission to assemble and make public any and all data the USSC has collected concerning the post-Blakely state of federal sentencing. Judge Castillo indicated the Commission would try to release this data as soon as possible, and these remands from the Ninth Circuit only whet my data-junkie appetite more.
Terrific in-depth coverage of "truth-in-sentencing"
Two of the main articles ran this week, with this article, entitled "Tougher sentencing law carries hefty price," focused primarily on the economic costs of Wisconsin's tough truth-in-sentencing laws, and this article, entitled "Door on early release closes tightly," focused primarily on the human costs of Wisconsin's very limited early practices. Articles planned for next week will cover collateral consequences and the restorative justice movement.
In addition to the main articles in the series, the Sentinel also has terrific companion pieces covering a range of additional issues relating to the harsh realities and human impact of tough truth-in-sentencing laws:
- This article, entitled "Inmates less motivated, wardens find," highlights the adverse impact of the elimination of parole on life within prisons.
- This article, entitled "Still seeking truth in sentencing," provides a victim's perspective on sentencing laws and practices.
- This article, entitled "Dueling effects," examines the relationship between longer prison terms and crime rates.
- This article, entitled "Innovative programming is part of strategy to ease law's problems," details new initiatives designed to address concerns with Wisconsin's truth-in-sentencing laws.
The series also includes a series of terrific graphics which can (and should) be examined closely; they cover the expected costs of truth-in-sentencing laws, the actual time served under truth-in-sentencing laws, and the relationship between crime and incarceration.
A morning of capital consideration
With thanks again to Howard Bashman at How Appealing for many of the links, I provide this morning a lot of coverage on death penalty developments:
- Providing follow-up coverage of the topic covered in this post noting a decline in death sentences, there is interesting and thoughtful analysis and commentary from the Christian Science Monitor and the Denver Post.
- Providing buzz about the penalty phase of Scott Peterson's capital trial (previously discussed here), there are interesting analyses from the SF Chronicle and the Contra Costa Times, as well as from TalkLeft here.
- Providing additional commentary on the actions of AG nominee Alberto Gonzales when advising then-Governor Bush on clemency decision in Texas (previously discussed here), Alan Berlow has this commentary in the Washington Post.
November 21, 2004
Will federal judges engage in the policy debate after Booker and Fanfan?
As noted in posts here and here about the US Sentencing Commission's hearings last week, if (when?) the Supreme Court applies Blakely to the federal guidelines, a policy battle could erupt between the Justice Department advocating "topless guidelines" (aka the Bowman fix) and others advocating some form of Blakely-ized simplified guidelines. If (when?) such a legal tussle develops, I wonder whether and how federal judges may get involved in the policy fray.
Notably, as detailed in this testimony of Judge Emmet G. Sullivan on behalf of the Committee on Criminal Law of the Judicial Conference of the United States, at the USSC hearing the judges did not endorse any specific reform recommendations. But Judge Sullivan did indicate that the Judicial Conference plans to be actively involved in the reform process:
We are not prepared today to convey a Judicial Conference position or offer an opinion on the various questions of law and policy presented by the various proposals. The Committee is actively considering the future of the sentencing process so that the Judicial Conference can be prepared to quickly analyze any proposed legislation and to consider all of the various legislative proposals as they develop.
The Committee intends to explore the range of alternatives to the existing sentencing process in the event the Supreme Court, in deciding Booker and Fanfan, declares the sentencing guidelines unconstitutional in whole or in part. We will evaluate and, where appropriate, make recommendations to the Conference on any identified alternatives in terms of their legal soundness and their impact on judicial responsibilities, workload, and court administration.
Reflecting upon why the current federal guidelines are viewed negatively by a considerable segment of the federal judiciary, many commentators have noted that federal judges did not actively engage with the USSC when it was drafting the original guidelines, and also that the USSC did not positively engage with federal judges after promulgation of the original guidelines. If the federal sentencing system must be re-constructed after Booker and Fanfan, it will be interesting to see how federal judges get involved.
Based on reading some of the post-Blakely opinions, I suspect that most federal district judges would favor either advisory guidelines or some form of Blakely-ized simplified guidelines. However, topless guidelines would technically give sentencing judges more discretion, although only discretion to be tougher, not to be more lenient (which seems to be the chief concern when judge call for more discretion). And, of course, judicial opinions may be quite varied, since differences in caseloads and the mix of offenders may give judges in urban areas or in border districts a different view on Blakely-ized guidelines than judges in other regions.
The law and policy of criminal history
As Blakely followers know, Blakely did not disrupt Almendarez-Torres' "prior conviction" exception to the Apprendi jury trial rule. And, because Booker and Fanfan do not directly address the exception, it seems likely, as previously discussed here and here, that the validity, scope and application of the "prior conviction" exception to the Apprendi/Blakely rule will remain uncertain even after a ruling in Booker and Fanfan.
In my forthcoming FSR article, "Conceptualizing Blakely," I suggest a rationale for the "prior conviction" exception (which resonates somewhat with the Court's discussion in Almendarez-Torres, but perhaps not fully with its discussion in Apprendi). Of course, establishing a rationale for the exception is key for determining its scope and application — e.g., as previously detailed in this post, there is a fascinating legal debate over whether juvenile adjudications come within the "prior conviction" exception, which turns on the exception's perceived rationale. (On this topic, I was recently sent an interesting Wisconsin brief, which can be downloaded here, that argues in detail why a juvenile adjudication should not come with the "prior conviction" exception: Download wisconsin_brief_on_use_of_juvenile_convictions.doc.)
Of course, beyond the Blakely issues, there are a host of other legal and policy issues that surround the use of criminal history at sentencing. The pitched political battle this fall over amending California's Three Strikes Law (partially detailed here and here and here) is just one of many hot topics relating to the import and impact of criminal history at sentencing.
And, as we gear up for the full USSC 15-year report coming soon, we should not overlook the important reports the Commission has already released this year on criminal history, available here and here. Helpfully, some of the highlights from these reports, as well as additional insights, are usefully developed in a recent Fordham Law Review article by Commissioner Michael Edmund O'Neill and USSC researchers, Past as Prologue: Reconciling Recidivism and Culpability, 73 Fordham L. Rev. 245 (Oct. 2004). In this article, the authors conclude that
the criminal history categories used in the Federal Sentencing Guidelines have served as a reasonably reliable indicator in determining both culpability and the likelihood the offender will commit future criminal acts ... [but] the criminal history categories need to be refined to improve recidivism measures.
My FSR co-editor Nora Demleitner is currently developing an issue of Federal Sentencing Reporter focused on these criminal history matters. No matter what the Supreme Court does in Booker and Fanfan, these issues of criminal history law and policy will surely remain of great importance.
November 21, 2004 in Blakely Commentary and News, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
In the morning papers
With lots of thanks to Howard Bashman at How Appealing for most of the links, I can note some interesting newspaper readings about both non-capital and capital sentencing developments:
In the arena of non-capital sentencing, this editorial from the Portland Press Herald draws on Blakely developments and the Angelos case to call for broad federal sentencing reform. And articles from Ohio papers here and here discuss the re-sentencing of a deadbeat dad who had previously been subject to an "antiprocreation order." In September, the Ohio Supreme Court, as detailed in this prior post, overturned the order that defendant make "all reasonable efforts to avoid conceiving another child" during his five-year probationary period.
In the arena of capital sentencing, the Texas papers have sharp pieces here and here about how the state is (mis)hadling death penalty cases. And the NY Times has this fascinating article about an execution scheduled for January in Connecticut which would be "first time in more than 40 years that an inmate has been put to death north or east of Pennsylvania."
November 21, 2004 in Blakely Commentary and News, Death Penalty Reforms, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack