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.
More Booker and Fanfan speculation
Over at SCOTUS Blog, Tom Goldstein here builds on Marty Lederman's speculation about what a question asked by Justice Ginsburg at oral argument yesterday might tell us about the eagerly anticipated Booker and Fanfan. As I noted here, the Ginsburg question prompted Marty to suggest we might not see a decision until at least January.
Interestingly, Tom is not convinced the Ginsburg question hints at a long wait for the Booker and Fanfan opinion. But Tom thinks the question "does suggest (albeit certainly not decisively) ... that the government lost Booker/Fanfan." This speculation dovetails with my own prognosticating here that the time it is taking for the Court issue an opinion is a sign that the Justices have decided to apply Blakely to the federal system but are struggling with the severability issue.
Interesting morning Blakely news reports
This article from the South Florida Sun Sentinel details that District Judge Jose Martinez decided to delay sentencing yet again in a high profile fraud case to wait for a decision in Booker and Fanfan. Here is a telling quote from the Judge:
"This is the one I might have to hold up on," Martinez said. "When it comes right down to it, I need a little more guidance than I've gotten from the higher courts. I don't want to do this twice."
This article serves as a useful reminder that, even though USSC data suggest most federal cases are moving along, many cases are being held up. (It also reinforces my sense that fraud cases might be the type of case most likely to be delayed.)
And a truly remarkable story about Blakely comes from Iowa, where this article in the Des Moines Register reports that "Chief U.S. District Judge Mark Bennett recently tried to hold in contempt a prosecutor who had repeatedly challenged Bennett's efforts to reduce prison terms." Though the contempt charge has been dropped, the story explains how it came to pass:
The contempt charge was the latest flare-up in a years-long battle between the judge and U.S. Attorney Charles Larson Sr.'s office over how severely to treat defendants who cooperate with the government....
In August, [AUSA] Fletcher asked Bennett to consider a stiffer prison sentence against a Sheldon man because the shotgun he used in an accidental slaying was illegal. Bennett, noting the Blakely decision, said he could not recognize the request because a jury had never heard the evidence. When Fletcher suggested that Blakely was not relevant to the federal courts, Bennett announced his intention to hold Fletcher — and his entire office — in criminal contempt.
This story serves as a sad commentary on how pitched the battle has become between federal judges and federal prosecutors over sentencing decision-making.
Dynamic and debatable preliminary USSC data
Though providing only a sliver of preliminary information about post-Blakely federal sentencings in July and August, the information made available by the US Sentencing Commission in three pretty charts here is fascinating on many levels. Heeding the USSC's warning that this data is preliminary and thus "should be viewed cautiously," I won't (and really can't) reach any firm conclusions based on this data. But I think I can make a few preliminary observations about what this data might tells us (and not tell us) about some post-Blakely realities of federal sentencing:
1. Despite all the Blakely uncertainty, it seems that the vast majority of criminal cases — apparently more than 80% — still moved through the federal system in the months after Blakely. More than 10,000 federal sentences were imposed in July and August. This represents a tangible reduction in total sentences imposed, which probably reflects the impact of Blakely, but the federal criminal justice system apparently still functioned pretty well throughout the summer.
2. These numbers hint that a majority — perhaps a large majority — of federal cases either (a) do not involve Blakely factors, or (b) do not involve contested Blakely factors that are extraordinarily consequential. Though the government represented to the Supreme Court that perhaps as many as 2/3 of all federal cases involve Blakely factors, the preliminary case processing data suggests to me that a much, much smaller percentage of cases involve contested and/or consequential Blakely factors.
3. As highlighted in the third chart, cumulative national data mask important circuit variations. The Second and Seventh Circuits experienced the most significant relative decline in sentencings in the two months post-Blakely, while there were relative increases in sentences imposed in the Eighth and Tenth Circuit. The other circuits scattered between these extremes in diverse ways.
4. Mixes in caseloads, as well as different Blakely rulings and different case-specific circuit and district practices, surely account for some variations in case processing. I would guess that nothing can significantly slow down fast-track immigration cases in the border districts, whereas fraud cases may be touched most by Blakely concerns and lead to the most postponements. And whether a district's public defender office is comfortable with Blakely waivers has a significant case processing impact.
5. I am already now eager to see additional analyses by the USSC of this data and also to see additional data from September to November as it becomes available. The month-by-month story is especially interesting since there was a sizeable decline in the relative number of sentencings in July, while August registered only a blip. But I would speculate there might actually be more case processing delays in the fall as courts postpone cases on the belief that Booker and Fanfan will be decided in short order.
6. The USSC and its staff deserve both praise and thanks for this valuable data release and all of its work in this arena, and I look forward to its Booker/Fanfan page continuing to expand in such informative ways.
November 30, 2004
Noteworthy recent capital developments
With all the fanfare over the possibility of a decision in Booker and Fanfan, I have not be able to keep up effectively with all the noteworthy death penalty stories of late. Here are some quick highlights with links for more:
- With thanks to TalkLeft for its coverage here, the big news from Texas reported here is that the Texas Board of Pardons and Paroles, in a rare action, today voted 5-1 to recommend a 120-day reprieve for Frances Newton, who is scheduled to be executed on Wednesday. Newton could still tomorrow become the first African-American woman to be executed in modern Texas history if Texas Governor Rick Perry rejects the Board's recommendation.
- As noted over at CrimProf Blog here, the ACLU has this week released an interesting and depressing report on the women on death row in the United States. The report's executive summary can be accessed here.
- And, following up on a topic discussed at length here, the penalty phase of Scott Peterson's death penalty trial got underway today. Details can be found in news accounts here and here.
A long wait for Booker and Fanfan?
Marty Lederman over at the SCOTUS Blog has this fascinating post which speculates, based on a question Justice Ginsburg asked today during oral argument, that we might not be getting a decision in Booker and Fanfan until at least January. (The post concludes, however, with Marty willing to "venture to predict a decision next week -- say, on December 8th.")
Interestingly, though just earlier today I was urging the Supreme Court to "get on the stick," I am not sure there should be a big rush now that I have seen the USSC's preliminary post-Blakely case processing data. Though this data tells (and perhaps hides) a lot of different stories, I cannot help but get a sense that the vast majority of criminal cases are still moving through the federal system despite all the Blakely uncertainty.
With the federal criminal justice apparently still functioning pretty well, the Supreme Court should definitely take all the time it needs to render a complete and clear decision in Booker and Fanfan.
Post-Blakely data on the state of federal sentencing
Though we did not get an opinion form the Supreme Court, I will still consider today a huge day because the US Sentencing Commission has now posted, here on its Booker/Fanfan page, some fascinating preliminary data about post-Blakely case processing in the federal system, as well as a memo with a review of lower federal court opinions addressing Blakely.
The sentencing data, comprising three pretty charts and described as "Preliminary Comparison of Case Submissions July and August 2003 and 2004," can be accessed here; the memo, which is more of a database than a substantive memo, can be accessed here.
I am looking forward to consuming and commenting on these documents later this evening. For now I will just say huzzah and thanks to the USSC and its staff for becoming much more public and transparent on these issues at a very important time.
November 30, 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
More Blakely developments in Ohio
I have previously highlighted that Ohio sentencing laws and practices make the state a real Blakely bellwether because the impact of Blakely's formal rule on Ohio's functional sentencing laws could be extreme or extremely minor (background here and here). I have been following the Ohio Blakely story closely (more details here), and there have been a set of recent state intermediate court rulings that continue this interesting state Blakely tale.
Helpfully, a terrific criminal appellate attorney sent me today (and allowed me to share) a helpful round-up of recent Ohio decisions. Here is his appellate district-by-district update of the state of Blakely in Ohio:
The Fourth District decided to stick by State v. Scheer, 4th Dist. No. 03CA21, 2004-Ohio-4792 [rejecting a Blakely claim], in State v. Wheeler, 4th Dist. No. 04CA1, 2004-Ohio-____. The opinion is not yet online, but should be within a week. I think the court is clear that it does not want to revisit Scheer until the Ohio Supreme Court has ruled. That means don't waste your time trying to persuade that court to change its mind. Preserve Blakely, and then concentrate on issues that might persuade the court to reverse on other grounds.
Unfortunately, the Fourth District decided the Blakely issue even though it reversed because of a Comer error [based on a failure to articulate adequately sentencing rulings]. This means Mr. Wheeler has to appeal to the Ohio Supreme Court to preserve his Blakely issue. Fortunately for Mr. Wheeler's issues, but unfortunately for Mr. Wheeler, he has a long West Virginia sentence to serve before his Ohio term starts. So there is time to take this to the Ohio Supreme Court.
The time factor leads to a strategy point. It's worth thinking about not raising Blakely if there is another strong sentencing issue. Raising Blakely risks getting an adverse Blakely decision, like Wheeler. That could mean a year or more delay in resentencing. But if you ignore Blakely and win on another issue, you can almost certainly raise Blakely for the first time in the trial court. But a lawyer would need to be extremely confident of a victory on the non-Blakely issue to try this all-eggs-in-one-basket strategy. There may also be ethical issues about dropping a valid claim without a client's consent.
Over a dissent, the Fifth District said Blakely does not apply to Ohio. State v. Hughett, 5th Dist. No. 04CAA06051, 2004-Ohio-6207.
The Sixth District refused to consider Blakely because the defendant raised the issue in his reply brief. State v. Warden, 6th Dist No. WD-03-065, 2004-Ohio-6306. The court said the defendant should have asked for leave to amend his brief.
The Eighth District is all over the map depending on what panel you get.
The Eleventh District correctly declined to address Blakely when it reversed the sentence on other grounds. State v. Sprowls, 11th Dist. No. 2003-L-056, 2004-Ohio-6328.
Gauging the impact of delay and uncertainty
I am trying not to be grumpy about having to continue to wait for a ruling in Booker and Fanfan. After all, the Supreme Court is obviously hard at work, as evidenced by the big arguments yesterday in Ashcroft v. Raich, the medical marijuana/federalism case (lots of details here and here), and also by the (civil law) opinion issued today with five Justices writing.
Nevertheless, I might have a hard time avoiding grumpiness if I was a judge, lawyer or defendant trying to move forward with my docket or my life at this time of great sentencing uncertainty. The issues in Booker and Fanfan have been in stark relief for nearly five months since Judge Cassell in Croxford and Judge Goodwin in Shambin set out the Blakely basics for federal sentencing. And many federal circuits weighed in with major opinions within weeks of Blakely (e.g., the 7th Circuit heard argument and ruled in Booker only two weeks after Blakely, the 2d Circuit issued its in banc certification ruling only a few days later, and four other circuits had at least partially weighed on Blakely before the end of July).
Of course, getting Booker/Fanfan and federal sentencing done right is much more important than getting it done fast (which is a useful lesson for Congress when it considers responses to Booker and Fanfan). Thus, the Court should take whatever time it needs to issue a great opinion. But, with so many federal cases likely on hold and now backed up awaiting Booker and Fanfan (as noted here and here), not to mention all the states also looking for more Blakely guidance ASAP, I suspect that the continued delay is having a profound impact on the administration of criminal justice throughout the country.
I am hopeful that the US Sentencing Commission might soon release the data it has about post-Blakely case processing, which could provide a clearer picture of where matters stand while we all wait. But in the meantime, perhaps readers might use the comments to report on the impact of the continued delay and uncertainty.
They're still not here: more waiting for Booker and Fanfan
The eagle still has not yet landed. This morning the Supreme Court did not issue its opinion in the eagerly anticipated Booker and Fanfan. All of us, and sentencing courts around the country, will just have to keep waiting. According to this SCOTUS Blog post, there are only a few more days this year on which the Court is likely to issue opinions. I am starting now to wonder whether we will see a decision before January (although I will surely keep crying wolf every time the Supreme Court announces an opinion is forthcoming).
Since now it appears that a decision in Booker and Fanfan has taken at least a full two months since argument in early October (and a full four months since the cert. grant in early August), it is hard not to speculate that the Court is struggling with the second severability issue (some background here). Though this is a bit like making predictions based on how long a jury is out, I think we would have seen a pretty quick decision if there were five votes to keep Blakely from applying to the federal system.
Gearing up for Booker and Fanfan
As we gear up for a perhaps imminent Booker and Fanfan decision, let me spotlight a post from earlier this month in which I provided a Booker and Fanfan pre-reading guide. In addition, some other useful background reading from this blog might include prior posts covering:
- What Booker and Fanfan are about (and not about)
- Principle versus pragmatism
- Blakely, federalism, retroactivity and pragmatism
- What Blakely is really about: adversarial versus administrative justice
- Lawlessness versus leniency: the real severability debate
- How the Blakely saga would get resolved in Hollywood
Additonal posts of note and other background materials on Blakely and Booker and Fanfan can also be found on this Blakely Basics page. And, of course, a wealth of additional information can be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.
Is today the day for Booker and Fanfan?
With the Supreme Court having indicated that an opinion is to be issued today, I am hopeful that later this morning the Godot-like wait for Booker and Fanfan will end. As discussed before here, much in the sentencing world (both federal and state) has been put on hold awaiting further Blakely guidance, and thus a decision cannot come too soon.
Interestingly, this article from the Pittsburgh Post-Gazzette indicates that the decision is "expected this week -- maybe as soon as today." The article also notes that "most of the 10 judges on the federal bench [in Pittsburgh] have been taking a wait-and-see approach on the issue ever since the June 24 Supreme Court decision in Blakely v. Washington." And the article closes by detailing that, while waiting for more guidance, the federal judges in Pittsburgh have rendered disparate rulings about the federal guidelines constitutionality.
UPDATE: Marty Lederman at the SCOTUS Blog confirms here that the Supreme Court will issue at least one opinion today, but none more this week.
November 30, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack
Another report about jury involvement in federal sentencing
With thanks to Marcia Oddi at the Indiana Law Blog for the tip, this article in Monday's Munster Times discusses a recent (apparently positive) experience with a "sentencing jury" in an Indiana federal district court. Though specific details about the sentencing proceeding are sketchy, the article suggests that the jury in a high-profile public fraud, like the jury in the recently concluded Enron Nigerian barge case (details here and here), reached a compromise sentencing "verdict" on the facts. Moreover, the article reinforces my suggestion here that a decision in Booker and Fanfan applying Blakely to the federal system might be positively perceived by the press and public as an appropriate vindication of the role of juries in the criminal justice system.
November 30, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
How and how fast might Congress react to Booker and Fanfan?
If Booker and Fanfan are handed down Tuesday morning and if Blakely is held applicable to the federal guidelines (both of which are big ifs), I wonder how and how quickly Congress might seek to respond to the decision.
Obviously, exactly what is said (and not said) in Booker and Fanfan will profoundly shape any congressional response. But I also suspect how the media and the public — not to mention the Justice Department, the USSC and federal judges — perceives what is said in Booker and Fanfan, as well as fortuities of timing and other congressional concerns, could also greatly impact what happens after we see a Booker and Fanfan decision.
Many followers of federal sentencing reform, who recall how quickly the dramatic Feeney Amendment became law, are understandably concerned about a hasty and potentially rash congressional response to a ruling in Booker and Fanfan. Yet, if the decision is cast by the High Court and perceived by the press and public as a vindication of the role of juries, which is how Blakely has be viewed by some, then cries to "undo" Booker and Fanfan may have less political traction. Then again, if the decision is perceived as giving a break to undeserving criminals, a "tough-on-crime" response to the may be politically unavoidable (as recently suggested by representative Tom Feeney himself).
As noted previously here, the NACDL and a broad group of other organizations have already written this letter to the House and Senate Judiciary Committees opposing any hasty legislative fix in the wake of a decision in Booker and Fanfan. Similarly, the Federal Sentencing Guidelines Task Force of the Federal Bar Association's DC Chapter (of which I am a member) on Monday sent a similar letter to the House and Senate Judiciary Committees. This letter, which can be downloaded below, not only advocates "careful deliberation" by Congress in any response to Booker and Fanfan, but also collects numerous public statements by leading policy-makers and judges opposing reliance on mandatory minimum sentencing provisions.
November 29, 2004
Debating death in New York
Someone was kind enough to forward to me a fascinating notice, available for downloading below, concerning two planned hearings to be conducted by the New York State Assembly to "examine the future of capital punishment in New York State." Here are just some of the highlights from the notice, which provides background and information about the death penalty in New York and why these hearings are needed:
New York's most recent death penalty statute ... became effective on September 1st of that year.... On June 24th, 2004, the New York Court of Appeals in People v. LaValle invalidated the "deadlock instruction" provision of New York's death penalty law, holding that the instruction created a "substantial risk of coercing jurors into sentencing a defendant to death" in violation of the Due Process clause of the New York State Constitution. The Court also held that the absence of any deadlock instruction would be constitutionally impermissible and that the Court was not judicially empowered to create a new deadlock instruction. The Court thus found that "under the present statute, the death penalty may not be imposed" under New York law, but that first degree murder prosecutions could continue to go forward as non-capital cases under the current statute....
New York's death penalty law was in effect for slightly less than nine years before it was struck down this past June. In that time, it is estimated that the state and local governments have spent approximately $170 million administering the statute. Not a single person has been executed in New York since the law's enactment. Seven persons have been sentenced to death [and only two of these sentences have not been reversed or converted yet].
New York's death penalty statute has remained highly controversial since its enactment and continues to be roundly criticized. The question of whether the statute should now be revived and, if so, in what form, has also been the subject of intense interest and debate since the Court of Appeals decision in LaValle. These hearings are intended to provide a public forum to review what New York's experience with the death penalty over the past nine years has been and what that experience has taught us. It is intended to solicit views on how the experience of other states, the federal government and other nations can help inform New York's actions on this issue. Finally, the hearings are intended to foster a public dialogue on the ultimate question of whether New York's death penalty law should be reinstated and, if so, what form any new law should take.
After providing this background, the notice also includes a lengthy list of "Select questions to which witnesses may direct their testimony." Fascinating stuff (as was the Lavalle decision, which you can access here). I am actually somewhat surprised that New York has spent "only" $170 million on administering its death penalty statute over the last decade.
Latest Ohio State Journal of Criminal Law issue heading to press
As I noted in my Thanksgiving post, I am thankful that the tireless faculty and student staff have finalized the final edits for the Fall 2004 issue of the Ohio State Journal of Criminal Law and we are now sending the issue to press. This is the first issue of our second volume, and I do not think I am being immodest by saying the latest issue maintains the high-quality OSJCL tradition (the credit for which should go principally to my colleague and co-editor Joshua Dressler).
As detailed in the OSJCL's cover page, which you can download below, the Fall 2004 issue includes a wonderful tribute to criminal law legend Yale Kamisar, which was organized by my colleague Marc Spindelman. The issue's symposium is focused on Capital Juries, and here's my (Blakely influenced) introduction to the symposium:
Few institutions in the criminal justice system are more revered, or perhaps less understood, than juries. And though juries have a central place in our conception of the criminal justice system, the reality of plea bargaining means that juries in fact have a relatively minor role in the actual administration of criminal justice in most cases. In the operation of the death penalty, however, juries are in fact central decision-makers. Most capital convictions are the result of jury trials, and juries also have, literally, a life-or-death role during the sentencing phase of death penalty cases.
Though there is significant academic literature examining the death penalty, the scholarly spotlight is not often focused directly on the meaning and impact of juries in the operation of capital sentencing systems. As evidenced by the articles that follow, the story of capital juries is rich and dynamic: our authors examine, from a range of perspectives, various legal, policy and practical issues which surround the selection and decision-making of capital juries. Especially at a time when the Supreme Court’s recent decision in Blakely v. Washington is leading to a broad reconsideration of the role of juries in the criminal justice system, we expect that even readers who do not regularly work in or study capital sentencing systems will be able to draw many important insights from this symposium.
We expect to have all the articles from the issue available for full on-line access soon (perhaps even before the end of this coming week). In the meantime, you can enjoy the cover provided here, Download osjcl_cover_v2n1.pdf, and also browse our prior and future forthcoming issues here.
Of note around the blogsphere
More than a few items of potential sentencing interest has the blogsphere buzzing after the long holiday weekend. Here's a very quick round-up:
- SCOTUS Blog reports here on today's Supreme Court's cert. grant in Dodd v. United States to clarify an issue concerning retroactivity in habeas corpus actions. I cannot help but speculate that some members of the Court think this issue is extra important after Blakely (and with Booker and Fanfan coming soon?).
- TalkLeft has a disconcerting post here about Texas' planned execution this week of Frances Newton, who could become the first African-American woman to be executed in modern Texas history.
- CrimProf Blog has the highlights here of today's two Supreme Court arguments on criminal law topics. Of course, Ashcroft v. Raich, the medical marijuana case, is getting lots of media buzz and blogsphere buzz (here and here and here) because of its important federalism features. But I like to think of it as a sentencing case, too, since the severity of federal penalties for marijuana raises the stakes of any federal criminal prosecution.
Great WSJ article on cooperation disparity
I have been praising the press a lot lately (examples here and here) for its coverage of various sentencing law and policy issues, and today the Wall Street Journal vindicates my extra praise for its continuing coverage of federal sentencing realities. A front-page WSJ article by Laurie Cohen, entitled "Split Decisions: Federal Cases Show Big Gap in Reward For Cooperation," provides the most complete and effective media examination of federal cooperation practices (and the disparities they create) that I have seen. (Earlier powerful WSJ articles can be found here and here and here.)
This article (available to subscribers) focuses particularly on the authority of federal prosecutors to reward, through "substantial assistance" letters to the judge, significant sentencing reductions for cooperation (that is, for being a snitch, as PBS has put it). And the WSJ article provides both anecdotal and empirical evidence to support a wide-spread concern, articulated by one defense attorney in the article, that sentencing reductions for cooperating often means that the "big fish gets off and the little fish gets eaten." As the article explains:
[T]he procedure for deciding who gets these valuable letters is often haphazard and tilted toward higher-ranking veteran criminals who can tell prosecutors what they want to know. U.S. attorneys in different parts of the country vary widely in how they reward cooperation, even though they're all part of the same federal justice system. Studies suggest blacks and Hispanics are less likely to get credit than whites, perhaps partly because they are more mistrustful of authorities. And once prosecutors decide that cooperation is insufficient for a letter, their word is usually final -- defendants can't appeal the decision to a judge....
Disparities in one aspect of cooperation letters have attracted the attention of the Department of Justice. Robert McCampbell, the U.S. attorney in Oklahoma City and head of a sentencing subcommittee advising the attorney general, says the department is worried that while some prosecutors have strictly followed the requirements for giving the letters, others seem to hand them out more liberally. Following a September 2003 memo by Attorney General John Ashcroft to all federal prosecutors, Mr. McCampbell says the department's message is now: "Only use substantial assistance departures where cooperation is truly substantial."
And last week, a report by the U.S. Sentencing Commission reviewing the 15-year record of the guidelines warned that "unwarranted disparity" in cooperation letters may play a role in increasing sentence variation.
A restorative ending to "Truth in Sentencing" coverage
The Milwaukee Journal Sentinel concludes its terrific series of sentencing articles, entitled "Locked In: The Price Of Truth In Sentencing," with this fascinating article discussing the restorative justice movement in Wisconsin. Another article today discusses the operation of drug courts in Wisconsin. Terrific and informative graphics about recidivism rates accompany both pieces and can be accessed here and here.
The prior articles in the Milwaukee Journal Sentinel series are discussed and linked here and here, and the already significant impact of the series is detailed here. In addition, the newspapers were buzzing all through the long weekend with first-rate sentencing coverage, as detailed in the following posts:
- Feeney speaks about Blakely
- Broad public support of juries and Blakely
- Media reports from the front lines
- In praise of the Fourth Estate
New Booker/Fanfan resources
Perhaps it is a sign that others, like me, expect to see Booker and Fanfan handed down soon: I now count two web pages already (pre)covering the Booker/Fanfan story.
As noted before, the US Sentencing Commmission has earned my kudos for having created this designated webpage for Booker and Fanfan materials. And now I see that the National Association of Criminal Defense Lawyers has this special webpage here described as the NACDL's Booker/Fanfan and Federal Sentencing Press Room.
One of many items of interest on the NACDL site (and one I have been meaning to post) is this recent letter to the House and Senate Judiciary Committees from NACDL and other organizations opposing any hasty legislative fix in the wake of a decision in Booker and Fanfan.
November 28, 2004
Two must-reads from Professor Frase
I just came across on SSRN two articles recently posted by Professor Richard S. Frase, a leading (and prolific) academic voice in the field of sentencing reform. From a review of the abstracts and a quick scan of the text, both articles appear to be must-reads for any scholar (or policy-maker) seriously interested in sentencing law and policy. Here are the abstracts, with links to SSRN, for both pieces:
Sentencing Guidelines in Minnesota, 1978-2003 (in Crime and Justice: A Review of Research, Vol. 32, Michael Tonry, ed., University of Chicago Press):
This article examines the origins, purposes, evolution, and impact of Minnesota's pioneering sentencing guidelines reform. The Guidelines, related sentencing laws, and charging and sentencing practices have evolved considerably since 1980, and so have Minnesota's reform goals. Most of these goals have been achieved: sentences are more uniform and proportionate; policy formulation is more systematic and informed by data; sentencing has been coordinated with available correctional resources, avoiding prison overcrowding and ensuring that space is available to hold the most serious offenders; "truth in sentencing" has been achieved; custodial sanctions have been used sparingly; and the Guidelines remain fairly simple to understand and apply. The Guidelines have been least successful when they have attempted to change firmly-established practices and values. In particular, the Guidelines Commission's emphasis on Just Deserts was undercut by subsequent appellate caselaw, legislation, and sentencing practices (although the system created by the enabling statute and the Commission was always a hybrid, allowing utilitarian purposes to play a very important role). Minnesota has achieved a workable and sustainable balance not only between sentencing purposes but in other important areas - in the tradeoff between uniformity and flexibility, and in the powers of the Commission, the Legislature, appellate courts, and practitioners to control sentencing policy and case outcomes.
Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: Proportionality Relative To What? (forthcoming in the Minnesota Law Review, Vol. 89):
This article examines constitutional proportionality requirements. The focus is on the assessment of lengthy prison sentences under the Eighth Amendment. However, the proportionality principles discussed have much broader application, both within and outside the field of sentencing. In the wake of the recent California three-strikes cases, upholding sentences of 25-to-life and 50-to-life imposed on two repeat property offenders, it is very unclear when a prison term will be held to violate the Eighth Amendment, and on what precise grounds. Justices Scalia and Thomas believe that the concept of proportionality is unworkable; they assert that the concept is inherently tied to retributive sentencing goals, yet the Court's cases specify that the Constitution permits sentences to be based on a variety of non-retributive (crime-preventive) goals. What does it mean to say that a penalty is disproportionate relative to non-retributive goals? None of the justices has ever addressed this question, and scholars have not done so in any systematic way. The answers to this question can be found in the Court's own cases. This article identifies one retributive and two non-retributive proportionality principles which are implicit in Eighth Amendment decisions, and also in cases from many other fields of constitutional law. The same three principles also find strong support in lower court decisions, in constitutional cases from other Western countries, and in regional and international law. The article examines the many forms these principles have taken, and suggests how they can be used to make proportionality analysis of prison terms more precise and more meaningful. The article is principally addressed to scholars, lawyers, and judges seeking to interpret the Eighth Amendment and its state constitutional counterparts. However, these proportionality principles can also be helpful in formulating subconstitutional sentencing law and policy. A third goal of the article is to increase awareness of proportionality principles that are implicit in U.S. law but rarely identified as such.
November 28, 2004 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
More powerful coverage of Wisconsin's "Truth in Sentencing"
Lots more great articles to read this weekend in the on-going series by the Milwaukee Journal Sentinel under the banner "Locked In: The Price Of Truth In Sentencing." (The first set of article are linked here, and the already significant impact of the series is detailed here.)
The third of the four main articles in the series is available here; entitled "Once released, inmates find little help," this article highlights the many challenges of community re-entry for prisoners upon being released from custody. And the Sentinel again runs with the main series this terrific set of companion pieces:
- This article, entitled "Touched by crime, parents work to break cycle," highlights efforts by parents to help their children escape a cycle of repeated criminality.
- This article, entitled "Survive this and get out of prison," provides a brief account of Wisconsin's boot camps.
- This editorial, entitled simply "Reform truth in sentencing," sets forth a powerful and compelling list of state law reforms that the paper says should be made by Governor Jim Doyle and the Legislature to improve the state of sentencing and corrections in Wisconsin.
Interesting Blakely decisions from Maine
I recently came across two interesting federal Blakely rulings coming from the District of Maine (home, of course, of Fanfan). These rulings reveal that cases are still moving along in one federal district. However, a footnote in the Thomas opinion (discussed below) notes that, "although two judges in this district have concluded that the Blakely rationale reaches the Federal Sentencing Guidelines, this intra-district view is not unanimous."
In US v. Morehouse, 2004 WL 2668347 (D. Me. Nov. 22, 2004), District Judge Woodcock held that, because of Blakely, he could "not upwardly depart from guideline sentence range based on wrongful convictions of others for crimes defendant had committed," but he still could "consider those wrongful convictions in determining the sentence within the guideline range."
In Thomas v. US, 2004 WL 2674362 (D. Me. Nov. 19, 2004), Magistrate Judge Kravchuk recommends denying a defendant's federal habeas petition over claims that he was "sentenced under unconstitutional sentencing guidelines and his attorney was ineffective because he did not raise a challenge to the constitutionality of the guidelines." The recommendation relies heavily on existing First Circuit holdings that Blakely has not (yet) clearly rendered the federal guidelines unconstitutional.