December 4, 2004
Reflections on retroactivity and constitutional responsibilities
Though courts and litigants are now working through what Blakely means for current cases, and legislatures and sentencing commissions are having to contemplate what Blakely means for future cases, an extraordinarily compelling concern — at least for a lot of prisoners and their families — is what Blakely means for past cases. (Especially during the Dickens time of year, I have come to think about the sentencing world in terms of the ghosts of Blakely past, present and future.)
I have spotlighted retroactivity issues in a number of prior posts (some of which are linked at the end of this post), but I have now added a category archive on "Apprendi / Blakely retroactivity." I suspect the doctrine and policy debate over Blakely's backward reach is just starting to heat up.
Indeed, the amazing opinions coming from the 11th Circuit yesterday in the Levy case (noted here), which address when the court will consider a Blakely claim, spotlight the complicated legal and policy issues that arise when already-sentenced defendants seek to benefit from Blakely. Judge Gerald Tjoflat's dissent from the denial of rehearing en banc in Levy is a particularly compelling opinion — and not just because it cites this blog on page 33 — and it highlights that defendants' ability to benefit from Blakely may ultimately depend more on matters of timing than matters of justice.
But, as I have suggested in a few of the posts listed below, I hope that retroactivity issues become not only the concern of courts. All branches of government pledge commitment to the US Constitution, and thus all branches of government should be concerned if a large number of defendants have been sentenced in an unconstitutional way. Indeed, I think executive and legislative officials have a constitutional responsibility to at least consider possible remedies for already-sentenced defendants with valid Blakely claims who, because of judicial retroactivity doctrines, may not get relief in the courts.
I have collected and linked here some prior posts discussing retroactivity issues, and I will have more to say on these topics in coming posts:
- Thoughts and holdings on Blakely retroactivity
- Thoughts on Retroactivity and Clemency
- More on Blakely's retroactivity
- Pragmatism and Blakely's retroactivity
- Careful retroactivity analysis from WD of Virginia
SCOTUS concerns about capital justice in Texas
Adam Liptak and Ralph Blumenthal of the New York Times have produced this insightful article on the quality — or lack thereof — of appellate justice in capital cases coming from Texas. The article's opening paragraphs set the theme:
In the past year, the Supreme Court has heard three appeals from inmates on death row in Texas, and in each case the prosecutors and the lower courts suffered stinging reversals. In a case to be argued on Monday, the court appears poised to deliver another rebuke.
Lawyers for a Texas death row inmate, Thomas Miller-El, will appear before the justices for the second time in two years. To legal experts, the Supreme Court's decision to hear his case yet again is a sign of its growing impatience with two of the courts that handle death penalty cases from Texas: its highest criminal court, the Court of Criminal Appeals, and the United States Court of Appeals for the Fifth Circuit, in New Orleans.
The rest of the (lengthy) article does a masterful job examining the composition and contextual influences of both the Texas Court of Criminal Appeals and the Fifth Circuit to provide an explanation for why these courts seem almost systematically disinclined to reverse troublesome death sentences.
Ashcroft's death penalty "legacy"
David Hechler of the The National Law Journal has this terrific law.com article examining in depth outgoing Attorney General John Ashcroft's handling — many might say "mishandling" — of the federal death penalty during his tenure. Among other astute observations, the article notes that "In a long list of 'successes' linked to the farewell letter posted on the Justice Department Web site [available here], [Ashcroft] never mentioned the death penalty."
The article thoughtfully details Ashcroft's "effort to federalize the death penalty" and notes "his penchant for overruling local prosecutors, which sometimes hamstrung their ability to negotiate cooperation agreements with defendants." The article also suggests that Ashcroft's likely successor, AG nominee Alberto Gonzales might "be flooded with requests to reconsider Ashcroft's death penalty decisions." And interviews produce contrasting speculations about how Gonzales might approach death penalty issues.
Additional background on these and related issues can be found in these posts:
Profiles in Litigation
Though perhaps not quite Pulitzer Prize material like "Profiles in Courage," the LA Times has this lovely profile of Jeff Fisher, the (young) Seattle lawyer who argued and won both Blakely and Crawford v. Washington last term before the Supreme Court. Entitled "The Supreme Beginner," the article is authored by David Feige, a public defender and a Soros Justice Media Fellow, and it rightfully suggests that Jeff Fisher now "might be one of the most influential lawyers of his generation."
The article details how Fisher as an appellate attorney took over, and then won, Blakely and Crawford, both legal blockbusters and either of which alone could be consider a career's crowning achievement. The article is filled with great tales and quotes, but I particularly like Judge Stephen Reinhardt, for whom Fisher clerked, describing Fisher's accomplishments this way: "That's like borrowing a sailboat and discovering America—twice."
December 3, 2004
More weekend reading from the Second Circuit
As if we all do not already have enough interesting opinions to read (as well as opinions to get ready to read), thanks again to Howard Bashman, I can spotlight one more pre-weekend decision of note. As Howard discusses in great detail here, the Second Circuit today issued an interesting opinion in an appeal from a harsh mandatory minimum sentence imposed on a defendant convicted of advertising to distribute child pornography. The opinion is available here, and I hope to add to Howard's great commentary before too long.
Third FSR Blakely issue to press
As previously discussed here, now complete is the third Federal Sentencing Reporter issue covering Blakely — which likely will be the last issue we send to press before Booker and Fanfan re-shape the post-Blakely landscape. The issue, FSR Volume 17, Number 2 (Dec. 2004), has the title "Further Implications of Blakely" and its covers can be downloaded below.
As you will see if you download the cover, the final page numbers for all the articles detailed here are now available. In addition, I now have a finalized version (with final FSR page numbers) of my "Conceptualizing Blakely" article. Here it is: Download final_conceptualizing_blakely.pdf
Details about the two previous Blakely issues are here and here. FSR subscribers a few weeks ago should now have received their hard copies of these issues, both of which can be ordered here and accessed electronically here. I expect this latest FSR issue will be available electronically with a week or so.
The 11th Circuit (sort of) speaks on retroactivity
With many thanks to Howard Bashman at How Appealing for the tip here, the Eleventh Circuit issued today a brief order denying rehearing en banc in US v. Levy (original discussed here), which led to lengthy concurrences and dissents addressing the retroactive application of Blakely.
I will need at least part of weekend to consume and comment on the opinions, which can all be accessed here, though I can say now that I never get tired of non-decisions making news in the Blakely world. There is also an amazing Apprendi retroactivity case that came down from the Illinois Supreme Court yesterday that I also hope to discuss at length this weekend.
Wolf! Wolf! ... I mean Booker and Fanfan
Like the young man in the fable "The boy who cried wolf," I am going to (yet again) predict that Booker and Fanfan are on the horizon. Marty Lederman at the SCOTUS Blog is reporting here that the Supreme Court "will be issuing one or more opinions from argued cases on both Tuesday and Wednesday of next week."
I hope that means we will see Booker and Fanfan within a week, but of course I have been wrong in predicting a forthcoming opinion twice before. This time I am wondering as well if we might even see an opinion in Roper v. Simmons, the juvenile death penalty case, although I have been assuming that one would not be coming for a while. Of course, stay tuned.
The slowing pace of executions
Constituting (in my view) a remarkable development, the Death Penalty Information Center is reporting here that "the last six executions scheduled for 2004 have all been granted stays by various courts and governors:"
Executions slated in Pennsylvania, Kentucky, Texas, Maryland and North Carolina were halted for review of claims regarding possible innocence, mental disabilities, execution procedures, and other issues. The last execution occurred on November 17 in Texas. No other state has an execution scheduled for 2004.
The National Coalition to Abolish the Death Penalty has more details on some of these stays here. Among other newsworthy aspects of this development, these stays mean that, according to DPIC data, there will only have been 59 total executions in the United States in 2004, the lowest number in nearly a decade.
The decline in the number of executions provides another piece of statistical evidence suggesting that the death penalty is on the decline in the United States (other statistical evidence can be found here and here). It also makes me extra excited to be heading now to this workshop in which David Jacobs, Professor of Sociology at The Ohio State University, will speak on "Survival on Death Row: Exploring Individual, Conflict, and Political Explanations for Executions."
Another view of waiting from the states
Anne Skove of the National Center for State Courts was kind enough this morning to send along the latest Jur-E Bulletin from NCSC. (You can get free subscription information and access to back issues of this helpful resource here.) Supplementing some of the state sentencing issues I developed here, this latest bulletin has an interesting discussion (with helpful links) concerning the state of Blakely in the states:
After the flurry of Blakely activity last July and October's First Monday fun with Booker and Fanfan, there has been little Blakely action. Now, a decision is imminent, but not as imminent as some had hoped. We will not hear anything until December 7 at the earliest, and do not plan to hold our breath.
Even when we do hear, there will still (yes, STILL!) be unanswered jury sentencing questions, or perhaps new answers to seemingly settled questions, such as:
- Retroactivity--whether and how much?
- Probation and parole issues
- Can consecutive sentences stand?
- How will truth-in-sentencing fare?
- Whither mandatory minimums?
- How broad is the right of notice?
- What's up with the USSC?
- and the most burning question: how might Hollywood resolve Blakely?
December 2, 2004
Rethinking the way jurors think(?) about death
Dahlia Lithwick — who continues to merit this fan site's label as "the rockingest Supreme Court columnist ever ever ever" — today has a this terrific Slate commentary on the death penalty entitled "The Crying Game: Should we decide capital punishment with our hearts or our heads?"
Focused on the emotional testimony of the penalty phase of the Scott Peterson trial, the commentary laments that, in the Peterson trial, it is "clear that 'penalty phase' is simply a term of art for 'blatant emotional manipulation,' as both sides did everything in their power to persuade the jury to vote only with their hearts." Dahlia does a wonderful job linking this reality to the modern doctrines and practices of capital punishment "in which the penalty phase no longer represents a contest between the defendant and the state but, rather, becomes a contest between the defendant and the victims' survivors." And she concludes by contending that this reveals that "the only real justification for capital punishment is vengeance."
This provocative commentary raises a lot of great questions, and thus highlights for me an ironic quality of the Peterson trial. Though I am always turned off by the media circus that surrounds high-profile trials, I am pleased that the effort to sentence Scott Peterson to death is getting a lot of media to explore many of the problematic realities of our modern capital punishment system. (This USA Today article and last night's Nightline show, which is thoughtfully discussed by one of my favorite student bloggers here, are other good examples.)
Of course, for even fuller examination of these issues, the Fall 2004 issue of the Ohio State Journal of Criminal Law (detailed here) includes a terrific symposium all about Capital Juries. All the articles are available on-line here; especially on point are pieces by Brandeis Professor Jeffrey Abramson, Death-Is-Different Jurisprudence and the Role of the Capital Jury, and by Cornell Professors Theodore Eisenberg & Stephen Garvey, The Merciful Capital Juror, and by Vanderbilt Professor Nancy King, How Different Is Death? Jury Sentencing in Capital and Non-Capital Cases Compared.
Latest Ohio State Journal of Criminal Law now on-line
As detailed in this prior post, the Fall 2004 issue of the Ohio State Journal of Criminal Law was sent to press earlier this week. I am now pleased to report that the issue, which includes a wonderful tribute to criminal law legend Yale Kamisar and a symposium I helped put together on Capital Juries, is now fully available on-line here. You can also browse on-line prior and future forthcoming OSJCL issues here. (And though you can get all this great OSJCL content on-line, I would remiss if I did not also encourage everyone to sign up for a subscription here.)
More musings and speculations while we wait
Baylor Law Professor Mark Osler was kind enough to send me a number of thoughtful reflections as a follow up to my recent posts here and here musing and speculating about the time it is taking the Supreme Court to issue a ruling in Booker and Fanfan. (Professor Osler, readers may recall, is the progenitor one of the most sensible and straight-forward "solutions" to reforming federal sentencing after Blakely, which can be accessed here, and he also previously shared in October here sobering observations of the future of federal sentencing reform.)
Here is how Mark previews his comments, which are downloadable below in an attached document: "While we wait (and wait) for the Booker and Fanfan decisions, a few thoughts about the delay and what will follow the decision's announcement."
Spotlighting problems with quantity-based sentencing
Continuing its amazing work on sentencing issues, the Wall Street Journal today has this terrific article on how drug weights play a critical (and highly problematic) role in federal sentencing determinations. (A subscription is required for on-line access, which I have finally bought.) Some of the other recent potent WSJ sentencing articles, on issues ranging from snitching to Blakely, can be found here and here and here and here.
Today's article by Gary Fields is entitled "Imperfect Measure: In Drug Sentences, Guesswork Often Plays Heavy Role," and it spotlights the realities of — and serious problems with — the federal sentencing system's heavy reliance on drug weights to determine sentencing outcomes. Here are just some highlights from the article, which includes a number of amazing stories about how arbitrary a sentencing system can become when it relies greatly on precise drug quantities:
Under 1987 federal sentencing guidelines and other federal laws, the amount of drugs involved in a crime is crucial.... The goal of the guidelines is to standardize sentences, so that criminals dealing in the same amount of drugs get roughly the same sentence.
But when it comes to measuring the weight of drugs, procedures around the country are anything but standard. The amount of cocaine or marijuana in the defendant's possession is just the start: What really matters is how much a person intended to procure or produce. That question leads the justice system into a speculative realm where botanists, chemists and forensic scientists imagine what might have happened if the defendant had had more time or skill.
The government is "very arbitrary in the way they are calculating yields that aren't based on any scientific foundation," says Warren James Woodford, an independent research biochemist who has testified about drug yields in many federal cases, often for the defense.
Prosecutors and defense lawyers have debated, for example, whether a man who hoarded bags of Chinese tea could have made a significant quantity of speed from it were he an expert chemist -- which he wasn't. Another man was caught growing thousands of baby marijuana plants. Had they grown up, how much marijuana would they have yielded? The answers to such questions can mean the difference of a decade or more in a prison sentence.
Reports on case-specific Blakely impact
Two newspaper articles this morning provide case-specific windows on Blakely's (uncertain) impact on federal and state sentencing decision-making.
This article in the St. Petersburg Times reports on a federal fraud case and all the sentencing issues that may, or may not, have to be decided by a jury in the wake of Blakely. This article in the Pittsburgh Tribune-Review details the case of a defendant, who was convicted and sentenced six years ago of aggravated assault and reckless endangerment, arguing that Blakely now renders his state sentence unconstitutional.
December 1, 2004
A peculiar (but important) Blakely ruling in Ohio
The Ohio Supreme Court truly had an eventful first day of December. As detailed here, the court was forced to reverse a death sentence imposed on a defendant who gruesomely murdered two Ohio college students for lack of jurisdiction. In addition, the court rendered a quirky, and yet perhaps quite important, Blakely-related ruling in State ex rel. Mason v. Griffin, __ Ohio St.3d __, 2004-Ohio-6384 (Dec. 1, 2004) (available here).
Mason did not directly address Blakely's applicability to Ohio's sentencing scheme (which is, as detailed here and here and here, an issue of much controversy). Rather, the case considered whether a Judge Burt Griffin (who happens to be one of the prime authors of Ohio's sentencing laws) had authority to convene a sentencing jury to make findings that might be required in Blakely. The Ohio Supreme Court, noting a lack of statutory authority, ruled that a court lacked this authority. As it explained:
Neither the Ohio Constitution nor any statute authorizes Judge Griffin to conduct a jury-sentencing hearing.... No statute authorizes Judge Griffin to convene a jury to make findings concerning sentencing in the underlying criminal cases.
In fact, the sentencing statutes pertinent to Moore’s criminal cases vest the exclusive responsibility to make these determinations in the court and not in a jury....
[I]nsofar as Judge Griffin determined that Blakely might render these statutes unconstitutional, he should apply the pertinent sentencing statutes without any enhancement provisions found to be unconstitutional by him. Instead, he ordered a hybrid procedure — a jury-sentencing hearing to make certain findings upon which he would base his sentencing decision — that is not sanctioned by any current or former version of a statute. That is, Judge Griffin had two choices: (1) apply the statutes as if Blakely did not render them unconstitutional and conduct a sentencing hearing without a jury or (2) find the statutes unconstitutional under Blakely and refuse to impose those enhancement provisions he deemed unconstitutional. By choosing neither, he proceeded in a manner in which he patently and unambiguously lacked jurisdiction to act.
Continued death penalty news on many fronts
Yet again, like yesterday, today was another eventful day in the arena of the death penalty. Here are some quick highlights with links for more:
- With thanks again to TalkLeft for its continuing coverage here, from Texas we hear this news that Governor Rick Perry followed his Board of Pardons and Paroles recommendation to grant a 120-day reprieve for Frances Newton, who had been scheduled today to become the first African-American woman to be executed in modern Texas history.
- Following up on a topic discussed at length here, the defense had its turn in the penalty phase of Scott Peterson's death penalty trial. Details can be found in news accounts here and here. Also, the Peterson case prompted this thoughtful USA Today article about the dynamics and uneven application of capital punishment throughout the US.
- And the media have covered the startling Ohio death penalty reversal detailed here with extended articles here and here.
More snippets on Blakely's federal impact
As discussed at length here, there are lots of ways to view and assess the preliminary data about post-Blakely federal sentencings in July and August recently made available by the US Sentencing Commission in three pretty charts here. And more empirical food for thought can be found in this brief article from The Third Branch, the official newsletter of the federal courts. The article, which I assume is based on statistics collected by the Administrative Office of the Courts, explains:
Although it is impossible to predict a trend on just three months of data, it appears that during the post-Blakely period from June 24 to September 30, 2004, district and appellate courts are reporting civil, criminal, and appellate caseload data in which the impact of the Blakely decision can be identified. For example, motion to vacate sentence petitions in the district courts are up 80 percent compared to the same three-month period in 2003. Appellate proceedings not originating in the district courts also are up 30 percent. On the other hand, criminal sentences, pursuant to both guilty pleas and trials, declined in over half of the district courts.
The article is an interesting read even though it conflates a bit the Blakely story and a discussion of Oregon US District Judge Panner's dramatic decision in US v. Detwiler (discussed here with commentary here), which declared the federal sentencing guidelines unconstitutional on separation of powers grounds due to the passage of the Feeney Amendment. Most telling, the article highlights that, though "a Supreme Court opinion on the sentencing guidelines is expected this term, for attorneys, defendants, federal judges, and convicted offenders, a resolution in this debate can't come soon enough."
A remarkable (capital) lesson for lawyers and law students
In a remarkable and quite sad ruling, the Ohio Supreme Court today in State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087 (Dec. 1, 2004) (available here) was forced to reverse a death sentence for lack of jurisdiction. Here is the unanimous court's initial explanation of this peculiar and disconcerting result, which reverses a death sentence imposed in the gruesome murders of two Ohio college students:
This is a regrettable case in which the attorneys involved — the prosecutor, defense counsel, and even the trial judge — failed to exercise the level of assiduity we expect of participants in the criminal prosecution of a capital case. The General Assembly has not authorized an Ohio court of common pleas to exercise jurisdiction over the prosecution of a defendant for the crime of aggravated murder when, as here, the killing occurred in another state. As a result, it is our duty to reverse the convictions of aggravated murder and vacate the death sentences imposed on defendant-appellant, Terrell Yarbrough....
The genesis of the error that mandates this reversal appears to be the prosecutor’s failure to distinguish between the venue statute and the jurisdiction statute in drafting the indictment. Incorrectly relying on the language of the venue statute, both the state and the defense proceeded — indeed, through the appeal to this court — under the assumption that Ohio courts had subjectmatter jurisdiction to try Yarbrough for aggravated murder when the homicides did not occur in Ohio, but in Pennsylvania. The Ohio jurisdiction statute, however — because of the limited manner in which the General Assembly has drafted it — simply does not provide jurisdiction over homicides that occur outside the borders of Ohio. See R.C. 2901.11.
Nothing in the record reflects that the defense counsel or the trial court ever recognized this error — despite the fact that the prosecutor was seeking the death penalty. It was not until our review of the record and our request for supplemental briefing that the issue of the jurisdiction of the trial court over the aggravated-murder charges was addressed.... One would expect that those charged with the responsibility of participating in the prosecution of a defendant who is subject to the ultimate penalty would exercise more diligence. In failing to observe the General Assembly’s statutory rules of jurisdiction, these attorneys disserved the citizens of Ohio and, in particular, the victims of these abhorrent crimes.
Despite the time that has passed since the homicides were committed in Pennsylvania, despite overwhelming evidence that the defendant participated in the murders, and despite the anguish suffered by the family and friends of the victims, it is our responsibility as members of this court to preserve the integrity of the criminal-justice system in Ohio.
The Ohio Supreme Court did not have to order the release the defendant; Yarbrough was convicted of other crimes for which jurisdiction did lie in Ohio. Here's how the Court tried to find some saving grace:
We do, however, affirm multiple other convictions, including convictions for robbery, burglary, and kidnapping, and a total prison sentence of 59 years for those crimes. Moreover, we note that Yarbrough may yet be tried in an appropriate court for crimes relating to the deaths of the men he victimized. We are not aware of any precedent that would prevent Pennsylvania, whose law also provides for the death penalty, from trying appellant for the abhorrent murders of the two college students.
The impact of delayed Booker and Fanfan on the states
One reason I sincerely hope we won't have to wait until next year to see Booker and Fanfan (possibility noted here) is because state systems, as well as the federal system, are in desperate need of additional Blakely guidance as soon as possible. As well documented by the great two publications of the Vera Institute's State Sentencing and Corrections Program (available here and here), and also by the terrific memo by Kevin Reitz for the ALI (available here), it is extraordinarily difficult for state policy-makers — not to mention state courts and state litigants — to take stock of modern sentencing reforms in light of all the critical questions that Blakely raises but does not answer.
Of course, Booker and Fanfan are federal cases and thus will not provide direct guidance to states. But the way in which the High Court describes (or refines or changes) the meaning and application of Blakely should provide (I hope) some help to all the state actors now forced to cope with Blakely.
Indeed, I would suspect that the state supreme courts with Blakely cases in front of them — which I know includes at least California, Colorado, Indiana, Maine, Minnesota and Washington (and probably others) — would like the benefits of the High Court's wisdom in Booker and Fanfan before rendering their state-specific rulings about Blakely's impact in their jurisdictions. Moreover, state legislators and sentencing commission — both in states with structured sentencing now and also in states considering guideline reforms — certainly need more explanation of what judges can and can't do at sentencing before they can effectively and confidently more forward with planned sentencing reforms.