November 22, 2004
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