December 11, 2004
More prognosticating on Booker and Fanfan (and Roper)
Attorney Mark Stancil, who produces a newsletter on Supreme Court cases and whose insightful thoughts on the Booker and Fanfan oral argument were previously provided by Crime and Federalism here, has now shared his latest thoughts on the decisions for which we are all waiting. Here is his intriguing thinking:
Shocking Booker/FanFan Prediction
Quite frankly, I'm surprised these monsters haven't come down already, particularly in light of Acting SG Clement's opening statement at oral argument that the federal system averages 1,200 sentencings per week. This is shaping up to be a nasty logjam, but I predict the end is in sight. Official word from the Court's opinion/weather hotline is that one or more decisions will be handed down on Monday (also, highs in the mid-40s, chance of showers). I figure the Apprendi/Blakely majority will serve up these stocking stuffers just in the nick of time.
For your amusement, I'll also take a stab and say Justice Thomas is writing the majority opinion on question 1 (whether Blakely applies to the Federal Sentencing Guidelines). Why? Assuming the Blakely lineup holds, Justice Stevens would be the assigning Justice and methinks he'd be inclined to let his infrequent ally take a shot after giving Blakely to Scalia. And Souter already has a majority assignment from the first week (KP Permanent Makeup), and surely that would have been on the back burner if he was also slogging through Booker/Fanfan. Ginsburg also has a first-week majority (Koons Buick).
But why wouldn't Stevens just keep it for himself? Because I'd wager he'd expect to be knee deep in Roper v. Simmons (execution of juvenile offenders) on one side or the other, and would probably recognize the value of letting the always thorough Thomas plow through the minutiae of the Sentencing Reform Act and the Guidelines. Thomas' authorship is also likely to have started a war of words with Breyer, which would account for the extra weeks of back-and-forth (and, perhaps, the false rumor circulating around Washington a few weeks ago that the opinions were coming down). I make no predictions on the severability issue, except that there will be at least 4 separate opinions and bodies flying every which way. All of this, of course, is just half-baked tea-leaf-reading by a guy hopped up on generic Day-Quil.
UPDATE: This post has prompted the (magical?) mystery blog, previously discussed here, to post another astute analysis (following up this earlier effort) concerning what might be going on inside chambers as Booker and Fanfan get hammered out.
December 11, 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 (3) | TrackBack
Death is definitely different this month
I have previously noted declines in the number of death sentences and in the number of executions as statistical evidence suggesting the death penalty is on the decline in the United States. But yesterday while talking to a reporter I discovered an even more remarkable capital development, which perhaps marks the start of a new modern death penalty era:
Due to the fact, noted here, that the last six executions scheduled for 2004 were all stayed, this December will be the first month without an execution in the United States since July 1994.
Using this reality as useful markers, it is interesting to note that, as detailed in this DPIC chart, from 1985 through 1994, the US averaged 23 executions per year, but from 1995 through 2004 the US has averaged 69 executions per year.
Speculating on what these number are going to look like from 2005 to 2014, the still-huge size of death row suggests that the number of yearly executions will not drop dramatically in the coming years. But recent polls indicating declining support for the death penalty, combined with heightened Supreme Court scrutiny of capital cases, leads me to predict we may have a lot more execution-free months in the coming years. (For thoughtful perspective on what the death penalty might look like in 2022, consider this great piece by Professors Carol Steiker and Jordan Steiker from the inaugural issue of the Ohio State Journal of Criminal Law.)
The Supreme Court's latest grant of cert. in the Medellin foreign nationals case (excellently covered by the New York Times and by TalkLeft), as well as the international aspect of the Roper juvenile case now before the Court (background here), highlights that our approach to capital punishment may, slowly but surely, become more in line international perspectives on the death penalty. This reality suggests that the Professor Steikers may indeed be clairvoyant when they forecast, in their article's title, that we could see "Abolition in Our Time."
UPDATE: This article from Reuters has picked up the story of an execution-free month and does a great job discussing the factors influencing, and future of, the death penalty in the US.
State Blakely stories in the newspapers
- This article from Metropolitan News-Enterprise discusses a noteworthy recent Blakely ruling, People v. Vu, from California's Fourth District Court of Appeal. Though I am not sure Vu breaks new ground, the article details how "messy" Blakely issues are in California (a point also highlighted in the California-centric Blakely coverage by the FDAP and ADI).
- This article from the Yuma Sun discusses at length an Arizona case in which the litigants and courts are dickering over the status of a plea deal in the wake of Blakely. According to the article, in a case involving a Marine accused in the stabbing death of an elderly man, the "Arizona Court of Appeals ruled that the Yuma County Attorney's Office may not withdraw from a plea agreement in it previously made." The article also reports that the court held that "the Blakely decision required a jury to determine aggravating factors, and that the [sentencing] judge could empanel a jury for that limited purpose."
December 10, 2004
Is the Booker/Fanfan delay all my fault?
As I previously obliquely noted in this post, I have discovered a mysterious blog that has developed apparently with the sole purpose, as detailed here and here, of blaming my prognostications for delays in the release of Booker and Fanfan.
Though the anonymous blog so far has only two posts, it may soon earn a place in my blogroll; not only do I enjoy the mocking, but I am quite impressed with this post's trenchant analysis of how the Justices are voting, and what is taking so long, in Booker and Fanfan.
Lots of friday afternoon news
Heading into the weekend, there are lots of sentencing stories to note and track that have nothing to do with Blakely. Here is a quick round-up:
- The Christian Science Monitor has this thoughtful article connecting the recent changes to the Rockefeller drug laws passed by the New York legislature this week (details here and here) to the "growing movement in dozens of states to rethink how they deal with nonviolent drug offenders."
- Gina Holland has this helpful AP report about the Supreme Court's cert. grant in Wilkinson v. Austin, a case from Ohio concerning the procedures required before a prisoner can be transferred to a SuperMax prison. (Shameless OSU plug: This will be the third Supreme Court prisoner case this term to be argued by my colleague, OSU Professor and now Ohio State Solicitor Doug Cole.)
- Gina Holland also has this report about the Supreme Court's cert. grant in Medellin v. Dretke, which concerns the rights of foreign nationals on death row. (Another shameless OSU plug: my colleague OSU Professor John Quigley filed an amicus brief in support of cert. in this case, and he is a national leader on this issue.)
- Marty Lederman at SCOTUSblog is reporting here that Chief Justice Rehnquist will swear in President Bush at his January inauguration. Some folks have been speculating that the Chief's health might be impacting the Court's decision-making in Booker and Fanfan, and we now have another tea leaf to read.
December 10, 2004 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack
More Supreme Court news and speculation
What I thought would be a quiet Friday has turned into a noteworthy day because of Supreme Court announcements. In addition to the news that more decisions are coming Monday, the Court today granted cert. on four cases, two of which have sentencing stories.
As always, the SCOTUSblog here has all the goods. The Court's decision to take Medellin v. Dretke, 04-5928, which concerns the right of foreign nationals on death row in the US to meet with a consular officer from their home country is especially noteworthy. Because of the intersection of international law and the death penalty — which is raised by not central to the juvenile death penalty case Roper v. Simmons now before the Court (background here) — Medellin will surely get a lot of national and international attention. Tony Mauro wrote this great Legal Times piece providing a lot of background on the case a few weeks ago.
Meanwhile, I have heard from a range of folks about my (wishful thinking?) prediction here that we may get Booker and Fanfan on Monday. Some have given very good reasons to think the decision is coming Monday, and others have given very good reasons to think we will not see the decision until January. Most compelling was this reaction from a defense attorney (which I hope it is okay to share):
Your ivory tower is showing. I would have liked to see a relatively quick decision in Booker Booker and Fanfan provided it was well thought out. But, a decision on Dec. 13 is going to leave many defendants/prisoners, their families and assorted others in limbo until after Jan. 1 and/or ruin their holidays with bad news.
It could also trigger some Chirstmas madness for some of us defense attorneys [who have briefs due in early January] Better a decision on Jan. 13 with an opportunity to file a supplemental brief unencumbered by the holidays.
It has to be Booker and Fanfan, no?
Marty Lederman at SCOTUSblog confirms here that the Supreme Court will be issuing an opinion this coming Monday. Thus, I am going to predict, yet again, that we are only days away from (finally) seeing an opinion in Booker and Fanfan.
Though I have already cried wolf more times than the fabled shepard boy, and though the blogsphere has taken to blaming me for decision's delay, I really hope this coming Monday will be the real deal on Booker and Fanfan. I say that in part because the always-in-the-know SCOTUSblog folks say here that if we do not get the decision this coming Monday, then we will not get it until mid-January. And I want to believe the High Court is trying its best to render a decision this year.
I have highlighted here and here and here how many different persons and institutions are eager for a decision in Booker and Fanfan. And it is useful to recall that it has already been nearly five full months since, as detailed here, the US Congress passed a Concurrent Resolution stating "the Supreme Court of the United States should act expeditiously to resolve the current confusion and inconsistency in the Federal criminal justice system by promptly considering and ruling on the constitutionality of the Federal Sentencing Guidelines."
Moreover, there is precedent from last year for the Supreme Court completing a major "rushed" decision in December. Last year's rushed case was, of course, McConnell v. Federal Election Commission, which dealt with the constitutionality of the new federal campaign finance laws. The High Court managed to issue its opinions — a total of 298 written pages!! — in that extraordinarily complicated case on December 10, 2003 before its holiday break. Here's hoping we get another December to remember.
Come all thee clemencies
The holiday season is a common time for clemency grants (and not just for turkeys), and the clemency news has been quite encouraging of late in at least a few states.
As detailed in this Miami Herald story, just yesterday Florida Governor Jeb Bush and the Florida Clemency Board "made historic changes to Florida's troubled clemency system, easing rules that will restore civil rights to tens of thousands of former felons." The Herald article appropriately highlights that this positive development appears to be a response to a recent series of Herald articles documenting severe problems in the state's clemency system (which can be accessed here).
Meanwhile, up the coast in Maryland, as detailed in this press release, Maryland Governor Robert Ehrlich late last month granted executive clemency to seven individuals. This Baltimore Sun op-ed, authored by Maryland Law Professor Michael Millemann who represented one of the defendants receiving clemency, praises Governor Ehrlich for having the courage to "reaffirm the traditional 'clemency' role of Maryland's governor."
And, on the other side of the country, this Albuquerque Tribune article reports on the decision late last month by New Mexico Governor Bill Richardson to grant executive clemency to Janet Vigil, a battered woman sentenced to life in prison in 1989 after being convicted of murdering her husband. The Tribune article include Governor Richardson's fascinating statement in support of this decision, in which he stresses that "Janet Vigil has already served nearly three times the average total prison time served by men convicted of a similar crime [and that new statements ] corroborate Ms. Vigil's trial testimony regarding allegations of domestic violence that led up to the shooting."
In posts here and here, I have previously discussed the reality that courts seem unlikely to deem Blakely retroactive, and thus executive clemency might be the appropriate (and perhaps only) means for defendants with final, Blakely-violative sentences to get relief. It would be heartening to see a continued reinvigoration of historic clemency powers as one of the positive aftershocks of the Blakely earthquake.
Weighing in on Rockefeller reform
The editorial pages of some New York papers are weighing in on the changes to the Rockefeller drug laws passed by the New York legislature this week (details here and here). Here are contrasting editorials from the New York Daily News and the Poughkeepsie Journal.
The recent BOP memo on Booker and Fanfan
With thanks to a reader for sending the link, you can now access the Bureau of Prisons memo sent to all federal prisons last week.
Previously discussed here and here, this two-page memo provides "talking points" and other advice for sharing information with prisoners in anticipation of an imminent decision in Booker and Fanfan. The memo is an interesting read, and it reflects well on BOP's efforts to ensure federal prisoners have, in the words of the memo, "timely and accurate information" concerning "what is likely to be a very complicated decision."
December 9, 2004
Some capital case buzz
With closing arguments in the penalty phase of Scott Peterson's trial being CNN.com's lead story this afternoon, it seems like a good time to span the internet for various important death penalty stories. And there are lots of stories to note:
- Reinforcing serious concerns about Texas capital (in)justice (detailed here and here), this disconcerting Chicago Tribune article suggests that Texas earlier this year might have possibly executed an innocent man. The blogshpere, as evidenced by posts from TalkLeft and Buckeye Law Guy, is already buzzing about the article.
- At the other extreme, this New Jersey Star Ledger article details that acting NJ Gov. Richard Codey has endorsed a moratorium on executions pending a proposed state study of the death penalty. That announcement has already garnered support in this Philadelphia Inquirer editorial.
- The Death Penalty Information Center has this interesting post about a new book entitled "The Biblical Truth About America's Death Penalty" which apparently argues that "People of biblical faith must abolish the American death penalty, and we must do so in our time. Moratorium is a way of stopping the practice while others of biblical faith become educated to the biblical truth, a truth that demands nothing less than abolition."
More Blakely news from the field
Two more interesting news reports about the post-Blakely worlds of state and federal sentencing:
- This article from Minnesota discusses a state sentencing in which, because of Blakely, "a separate sentencing hearing was conducted before the jury, and prosecutors successfully argued that [the defendant] should be given the maximum sentence under Minnesota's dangerous offender law."
- This article from Iowa discusses another federal sentencing which has been postponed awaiting a decision in Booker and Fanfan. The article indicates that the defendant's appointed federal public defender has objected — apparently unsuccessfully — to all of the government's continuance requests.
Revealing my sentencing bias
Via Howard Bashman here, I discovered that legalaffairs.org is conducting this entertainingly silly poll entitled "Who Are the Top 20 Legal Thinkers in America?" It helps pass the time as we wait for Booker and Fanfan.
I found my votes were greatly biased by my sentencing-focused view of the legal world — although, as a matter of principle, I did not vote for any Supreme Court justices because they have not yet given us Booker and Fanfan (and because they sort of have an unfair name-recognition advantage).
In re state Blakely interpretations
As suggested in this recent post, I have largely given up trying to comprehensively track Blakely decisions coming from lower state courts. (Actually, as noted here, I gave up tracking the California caselaw weeks ago — there are now nearly 250 California state Blakely rulings on-line!)
There are just too many opinions from too many states to follow all the Blakely state action: including the Oregon rulings noted here, there have been more than two dozen consequential lower state court Blakely rulings — coming from 10 different states — in the last week alone. I previously noted here that, as of October 16, a total 239 state Blakely cases were on-line via Westlaw; as of this morning, less than two months later, that total is up to 506.
With the state Blakely caselaw starting to mature, most of the recent state rulings do not break major new ground. Nevertheless, they provide a rich view of all the different ways the Blakely earthquake is rumbling through the states. Moreover, even a quick review of some of these decisions spotlights how many Blakely questions — on issues ranging from admissions to retroactivity to the prior conviction exception — are in need of definite answers as soon as possible.
The many intra-state disputes over interpretations of Blakely — see examples in Ohio and California — can and will, of course, first get resolved in state supreme court rulings. But, I think that, before too long, the US Supreme Court will have to get involved and resolve the (perhaps inevitable) inter-state disputes about key Blakely issues. These issues will surely be making their way into lower federal courts through federal habeas actions, and their definite resolution as soon as possible will be critical for the efficient administration of justice.
Of late, I have been thinking that the Booker and Fanfan delay could be the result of the Court trying to speak broadly about Blakely's meaning (so as to provide additional guidance on all these issues), but having struggles with the exact language. But that may be just wishful thinking on my part as I worry about how many years and cases we might need to get all the Blakely kinks worked out. (After all, we are nearly 40 years since Miranda and 30+ years since Furman and we are still working to figure out these areas of criminal procedure jurisprudence.)
More on Rockefeller and other drug sentencing reform
The discussion and analysis of New York's reform of its harsh Rockefeller drug sentencing laws (noted here) continues to be nuanced. As detailed in articles and editorials from various New York papers, there is praise that something has been done, but criticisms of how limited the reforms are. This NPR report captures all the perspectives quite effectively.
This New York Times article particularly focuses on the disappointment felt by advocates for major drug sentencing reform, and it notes data that the new reforms may only affect the sentences of 446 prisoners from a total New York state population of 15,600 felons imprisoned on drug charges. This Newday opinion piece by Robert Gangi, executive director of the Correctional Association of New York, echoes similar themes; Gangi complains that the law still does not give judges sufficient discretion in drug sentencing cases.
Meanwhile, in a developing story that will surely get much less press, this AP article coming from South Dakota details that drug sentencing reform is a key component major changes proposed by the South Dakota Criminal Code Revision Commission. The proposed reforms apparently suggest eliminating a number of mandatory minimum sentences, while also increasing the available maximum sentence for many drug crimes:
One measure endorsed by the commission would remove mandatory minimum sentences for some drug crimes. For instance, judges no longer would be required to put people in prison for at least one year if caught dealing methamphetamine, cocaine or heroin.
The proposal also would increase several drug penalties, and it attempts to add uniformity in the link between penalties and the quantities of drugs involved in crimes.
Currently, people can be put in prison for up to 10 years if they are convicted of dealing any amount of hard drugs. A trace quantity is treated the same as 100 pounds. The legislation provides up to 15 years for selling one pound or less of cocaine, methamphetamine or heroin and 25 years for more than a pound.
Mandatory minimum sentences should be repealed, said Circuit Judge Tim Dallas Tucker of Madison. He said judges should have full discretion to determine if the facts of cases merit tough prison terms or leniency. "The individual judge is in the best position to decide ... what penalty should be imposed," Tucker said.
Changes also are recommended in marijuana laws. The current mandatory minimum sentence of 30 days in jail for felony marijuana dealing would be eliminated, but maximum sentences would be lengthened. The bill also would provide a lighter sentence for simple marijuana possession....
December 9, 2004 in Criminal Sentences Alternatives, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (6) | TrackBack
December 8, 2004
Another side to Texas justice
As detailed here and here, the stories of Texas justice is pretty grim when considering capital punishment. But thanks to Scott Henson at Grits for Breakfast, I see from this encouraging Austin American Statesman article that there is another side to Texas justice. Here are some snippets from an article which provides another example of how tight budgets and the high costs of mass incarceration are forcing states to reconsider "tough on crime" policies:
These days [Texas state Representative Ray] Allen is among a growing list of key state leaders and officials who are arguing for more programs to benefit convicts -- such as drug treatment, therapy and education in prisons as well as job placement, mentoring and re-entry initiatives once they get out. It is part of growing national trend, experts say, a stark contrast to the days of passing three-strikes laws, building more prisons and cutting programs in order to make the environment inside the lockups as punitive as possible.
"These wouldn't have been things I'd have thought about or said back in those days," said Allen, chairman of the House Corrections Committee, who earned the nickname "No Way, Ray" for his hard-line views on crime a decade ago. "Tight budgets have forced fiscal conservatives like myself to ask the same questions liberals were asking 10 years ago. We're all at the same reality now on criminal justice, I think: We simply cannot afford to keep everyone behind bars."
It costs Texans about $2 a day to keep a convict on probation, and $45 a day to keep him in prison, Allen said.
Signs of the slow shift in public policy are everywhere as lawmakers prepare to return to Austin in January.
Last spring, the Department of Criminal Justice created the Rehabilitation and Re-entry Programs Division to consolidate and better coordinate existing state and local initiatives to help the 60,000 inmates who leave Texas prisons each year. Top prison administrators are participating in a Travis County experiment establishing a community network to help ex-offenders. New programs are being offered for convicts who are leaving solitary confinement to return home.
Scott Henson provides more excerpts and commentary on this article and Texas justice here. And for just a few other recent examples of state officials expressing concerns about the high costs of mass incarceration, see:
More cases in limbo awaiting Booker and Fanfan
Two articles today report on the continuing impact of the uncertain state of federal sentencing as we all await a ruling in Booker and Fanfan:
- This article from the New York Law Journal provides details surrounding a Second Circuit decision (apparently from last week) which meant that "two lawyers convicted in an insurance kickback scheme four years ago have won another delay in serving their jail terms because of uncertainty over federal sentencing guidelines."
- This article from the Pacific Daily News discusses a ruling yesterday in District Court of Guam (which is in the Ninth Circuit) to release from jail pending resentencing former high-ranking government official A.J. "Sonny" Shelton. As the article details, Shelton's 10-year sentence on several corruption charges including bribery and bid-rigging (of which Shelton has already served 3+ years) was reversed by the Ninth Circuit after Blakely. And, according to the article, "a resentencing hearing is not scheduled to be held for Shelton until the decision on the Booker and Fanfan is made."
An Oregon Blakely trifecta
With thanks to many for spotlighting these rulings for me, Oregon's intermediate court at least made sure that there would be judicial Blakely news of note today by rendering three noteworthy Blakely opinions: Oregon v. Perez, No. 0201-30132; A119741(Or. Ct. App. Dec. 8, 2004); Oregon v. Gornick, No. 02C53376; A121042 (Or. Ct. App. Dec. 8, 2004); Oregon v. Ross, 03CR0143; A121410 (Or. Ct. App. Dec. 8, 2004).
There is a lot of "there there" in these opinions, all three of which were authored by Chief Judge David V. Brewer. Perez seems especially noteworthy for giving the "prior conviction exception" a narrow reading:
We conclude that the Supreme Court plainly meant what it said when it described the holding in Almendarez-Torres as "a narrow exception to the general rule" and stated that, other than "the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 US at 490 (emphasis added). It is therefore beyond reasonable dispute that the exception applies only to the fact of a prior conviction.
ABA's view of the post-Blakely world
With thanks to Jim Felman for passing this along, I am pleased to be able to share for downloading below "the current working draft of the ten points of consensus among the non-DOJ members of the ABA Blakely Task Force." As Jim explained in his e-mail:
There has been no objection to any of these points by the DOJ members, but they have refrained from taking any position in deference to DOJ formal policy which, as I understand it, has not yet been finalized because, in addition to perhaps other reasons, the Booker/Fanfan cases are still pending.
December 8, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack
The costs of delay
I am sure federal prisoners throughout the country are disappointed that we did not get a sentencing decision from the Supreme Court today, especially since, as noted here and here, the federal prisons have been systematically been gearing up for the opinion. But I also have to think that federal prosecutors and defense attorneys, not to mention federal court judges, are also very ready to know more about the future of the federal sentencing system.
With all the extra time I now have, I went back and re-read this post from July in which I excerpted quotes from the Acting Solicitor General's Supreme Court filings urging the Court to grant cert. in Booker and Fanfan and to schedule oral arguments in September. All the quotes are amazing to re-read, and they reinforce my belief that the Court should, and likely still will, give us a decision before the end of this year.
Blakely-ization plans in North Carolina
Following up on this post about state Blakely developments, a lawyer was kind enough to forward to me a recommendation to the North Carolina legislature from the NC Sentencing Commission's Blakely Subcommittee concerning how the state ought to respond to Blakely. You can download the two-page "draft final report" below, and I was amazed and impressed with how easy the report makes Blakely-ization sound.
Here's how the proposed North Carolina Blakely reforms were summarized for me:
The recommendation is to keep the three range grid in place (there had been talk of blending the aggravated range and presumptive range into one to solve the problem). Aggravators set out in the statute are incorporated by reference into indictments, but "nonstatutory aggravators" must be pled.
A separate jury phase is allowed but not mandated. It would be up to the judge whether to bifurcate the guilt/innocence and sentencing stage.
An amendment to the recommendation, not included in the information provided, requires the state to give the defense notice ten days before trial of the aggravators that the state contends exist.
I have tried cases for thirty years. All in all, I think this will be workable.
SCOTUS still struggling: the wait for Booker and Fanfan continues
Yet again, no news on the Supreme Court sentencing front: the Court did not hand down its decision in Booker and Fanfan today. Sorry for all the false alarms; I am as disappointed and surprised as anyone that the Court has completed now seven decisions before being able to speak to the state of federal sentencing. I continue to speculate that the Court is really struggling with the second severability issue (some background here).
According to the SCOTUSblog folks here and Howard Bashman here, the only other possible date for the decision this year is Monday, December 13. And, as noted before, perhaps even a longer wait is in store for us. Whenever the decision comes out, I trust it will be worth the wait.
In the meantime, there are lots of other state and federal sentencing stories to share and discuss (and now the mysterious Milbarge, the "Weird Al" Yankovic for the sentencing world, has more time to write more great Blakely and Booker songs).
December 8, 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 (6) | TrackBack
'twas the morning before Booker?
Well, here we go again, again. The Supreme Court has said it will be issuing an opinion today, and so (now for the fourth time) I am getting prepared for a decision in Booker and Fanfan. (Prior posts in preparation include Booker and Fanfan pre-reading guide and Gearing up for Booker and Fanfan.)
Credit for this post's title goes to the mysterious Milbarge of the blog Begging the Question. Seizing upon my comment here that I would award a complete set of FSR Blakely issues (Issues 16.5, 17.1 and 17.2) for appropriate sentencing jocularity, Milbarge has penned 'Twas the Night Before Booker. Here is the opening refrain from Milbarge's brilliant sentencing lyrics to put everyone in the mood for what could be a very big day:
'Twas the night before Booker, and all through the prison,
Inmates packed up the cells that they wouldn't be missing.
The lawbooks and transcripts were bound up with care,
In hopes that the verdict soon would be there.
Rockefeller reform a (compromise) reality
After years of false starts, state lawmakers voted Tuesday evening to reduce the steep mandatory prison sentences given to people convicted of drug crimes in
New York State, sanctions considered among the most severe in the nation.
The push to soften the so-called Rockefeller drug laws came after a nearly decade-long campaign to ease the drug penalties instituted in the 1970's that put some low-level first-time drug offenders behind bars for sentences ranging from 15 years to life.
Under the changes passed Tuesday, which Gov. George E. Pataki said he would sign, the sentence for those same offenders would be reduced to 8 to 20 years in prison. The law will allow more than 400 inmates serving lengthy prison terms on those top counts to apply to judges to get out of jail early.
Quotes throughout the Times article, as well as additional effective articles from other New York newspapers here and here and here and here, highlight that the changes are the product of a legislative compromise that has disappointed many who were pushing for broader drug sentencing reform. As noted in the lead of this Albany Times Union article:
Depending on who you talked to Tuesday, state lawmakers either broke a long-standing logjam and took real steps to reform the Rockefeller Drug Laws, or merely tinkered with the harsh laws and frittered away any chance of future negotiations.
TalkLeft here provides more highlights, and more concerns, about the Rockefeller reform outcome in Albany. Ever the optimist, I am inclined to celebrate an important (and overdue) step forward, and hope it is only the first step toward continued rethinking of drug sentencing policies and practices both in New York and throughout the nation.
December 8, 2004 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (30) | TrackBack
Deep thoughts about shallow conceptions of equality
Sentencing guru Professor Marc Miller (who is also one of my casebook co-authors and a great friend) has posted on SSRN a draft of his latest sentencing article, entitled "Sentencing Equality Pathology." The first line of Marc's abstract spotlights both the article's theme and its great importance: "This short article critiques the highly constrained notions of equality in modern sentencing reform."
The article terrifically details (in under 20 pages!) how stunted and underdeveloped — and yet dominant — the concepts of "equality" and "disparity" have been in the federal sentencing reform dialogue, and this makes the article a must-read for everyone contemplating the post-Blakely sentencing landscape. Though Marc's article is focused on pre-Blakely developments and perspectives, I view the Blakely decision in part as a (long-overdue) statement by the Supreme Court that some other values — such as the jury trial right and a commitment to adversarial justice — need to be balanced with, or perhaps integrated into, our modern quest to achieve sentencing equality.
Here are more highlights from the article's abstract:
While Congress made the reduction of unwarranted sentencing disparity a primary goal of the Sentencing Reform Act of 1984, the past two decades have not produced nuanced conceptions of disparity and equality in the federal system. The language of formal equality has continued to dominate the federal discussion of sentencing. The focus on apparent outcome equality in sentencing has become a pathology of federal sentencing reform for the past twenty years. The narrow focus of judges and the United States Sentencing Commission on achieving sentences that appear similar for offenders who appear similar — in other words, the absence of any context beyond formal outcome equality — has allowed Congress to shape federal sentences into a ready political tool....
Building on work by Professor Martha Fineman on the contextual nature of equality in other areas, this article suggests that fuller conceptions of equality in sentencing must reject narrow time-framing, account for the multiple screening and sorting functions of the criminal process (including sorting within and among criminal justice systems), attend to the justifications for punishment and evidence in support or against those justifications, and consider sentencing within the broader context of the causes and solutions to the social problem of crime. Functionally these goals can be advanced through continuing efforts at defining ideas and through comparative study of different places (including state and non-U.S. systems) and different times.
December 8, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack
December 7, 2004
Seeking help on Blakely in the states
I have regularly highlighted the important and intriguing Blakely work being done in the state appellate courts — e.g.,November posts here and here and here and here and here detailed the breath and scope some of the major state Blakely rulings from last month alone. But, with so many state issues and opinions (and with all the time I am spending crying Wolf about the coming of Booker and Fanfan), I have of late been unable to track effectively the still developing and always evolving story of Blakely in the state courts.
I hope readers will continue to spotlight for me especially compelling and important state Blakely rulings in the days and weeks ahead. I would be especially grateful to get information and resources from anyone trying to track systematically state court Blakely rulings. As I noted here last week, a number of state supreme courts have Blakely cases in front of them and might be expecting (or at least hoping) additional guidance will come from Booker and Fanfan; it will be interesting to see if one consequence of the (eventual) ruling in Booker and Fanfan is a rapid-fire series of major state supreme court rulings.
And, of course, state courts are only one of many state institutions forced to cope with the Blakely earthquake. I know the Minnesota Sentencing Guidelines Commission is having hearings in the coming days "to consider proposed modifications to the sentencing guidelines and commentary resulting from the recent U.S. Supreme Court decision Blakely v. Washington" (details here). And newspaper articles noted in posts here and here document that other state commissions and legislatures are, at a seemingly cautious pace, working through Blakely concerns. I highly encourage readers also to report on state legislative or policy developments on all state Blakely issues in the days and weeks ahead.
As I have noted before, the federal sentencing story will surely grab all the headlines in the wake of a decision in Booker and Fanfan. But I find the state Blakely story engaging, critically important, and often far more encouraging than the federal story.
More on Pablon-Cruz
With thank to a favorite reader for the link, the New York Times today has this article discussing the Second Circuit's remarkable recent ruling in US v. Pabon-Cruz, No. 03-1457 (2d Cir. Dec. 3, 2004). As noted in my post here and in Howard Bashman's coverage here, the Second Circuit in Pablon-Cruz determined that a (now amended) federal sentencing statute provides that a sentencing judge has authority in a child pornography case to impose a fine or a 10-year (or longer) imprisonment term, but nothing in between.
The full opinion in Pablon-Cruz merits attention not only for its thoughtful explanation of this ruling, but also because it reviews the efforts of US District Judge Gerard Lynch (also a likely nominee for my imaginary Sentencing Judges Hall of Fame) to inform juror about the sentencing consequences of a conviction. (The Second Circuit last year disallowed Judge Lynch's proposed jury instruction in a mandamus action brought by the government, and it reaffirms that decision in this latest Pablon-Cruz ruling.) The NY Times article merits a full read because it provides more of the factual and social stories surrounding this bizarre and sad case.
December 7, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (10) | TrackBack
Preparing to cover Booker and Fanfan in FSR
As I have highlighted (repeatedly) in this space, the Federal Sentencing Reporter has produced three rapid-fire issues covering Blakely since June. FSR hopes to be able to provide similar coverage of Booker and Fanfan (whenever that decision arrives) by continuing with a flexible production schedule as the dust continues to settle in the aftermath of the Blakely earthquake. However, because the pages of future issues are already filing fast, I encourage prospective authors to let me know ASAP about any planned article.
A full-page version of front cover (with final page numbers) of the latest FSR issue, Volume 17, Number 2 (Dec. 2004), entitled "Further Implications of Blakely" can be downloaded below. I have also made available again for downloading a finalized version of my article "Conceptualizing Blakely" which also has final page numbers:
While I am in shameless self-promotion mode, let me note again that details about the two previous Blakely issues are here and here, and that FSR can be ordered on-line here and accessed electronically here. For true sentencing geeks like me, an FSR subscription might even make a nice Hanukkah or Christmas gift. (Okay, I know I am going to lose all my credibility with that last claim.)
Compelling reading from the drug war front
In July, US District Judge Gregory Presnell made a strong case for inclusion in my imaginary Sentencing Judges Hall of Fame through his opinion in US v. King, where Judge Presnell not only found the federal sentencing guidelines unconstitutional in light of Blakely, but also identified the illogic in the government's tortured severability claims (background here). Judge Presnell followed up King with other noteworthy rulings in recent months (accessible here and here) that spotlight injustices in the current federal sentencing system. And, last week, Judge Presnell in US v. Williams, No. 6:04-cr-69-Orl-31KRS (M.D. Fla. Nov. 30, 2004), once again detailed how ugly the "war on drugs" can appear on the judicial front lines.
Williams, a to-the-point, four-page opinion, can be downloaded below and it is a must-read for anyone concerned about mandatory drug sentencing or cooperation credit or the human realities of our criminal justice system. Here are some highlights:
Torrey Williams was caught in a sting operation selling 12.3 grams of crack cocaine to an undercover law enforcement officer for a total of $500.00.... [T]he government seeks to impose a sentence of 188-235 months [for this] 24-year-old unemployed African-American male [who] has been convicted of two prior drug-related felonies both involving relatively minor amounts of crack cocaine.
Defendant has metastic medullary thyroid cancer [and his] prognosis is uncertain; however his doctor does note that this form of cancer portends a poorer prognosis than some of the other forms of thyroid cancer. [FOOTNOTE: recent publicity concerning our Chief Justice’s thyroid cancer [suggests] the three-year survival rate for this type of cancer is 20%.] Indeed, the cancer appears to have metastasized into his lungs [and] Defendant will require adjunctive therapy (radiation and chemotherapy) as well as possible additional surgery in the future.
As a result of this medical condition, Defendant moves for a downward departure... [which the law suggests] is appropriate in only "extraordinary circumstances." ... Therefore, the question becomes, is this an "extraordinary circumstance"? Many people sentenced by this Court are incarcerated with physical or medical disabilities, and the Court has always been assured that the Bureau of Prisons will provide all reasonable and necessary medical care to its inmates. Indeed, it may well be that Defendant would receive better health care as a ward of the federal government than he would as a poor, uneducated and unemployed citizen of this state.
A guideline sentence in this case starkly illustrates the problem of attempting to fit the human experience into a discrete mathematical matrix. It just can’t be done, and this Court cannot in good conscience do it, because it offends the Court’s concept of justice.... [Departing on th basis of extraordinary physical impairment and overstated criminal history] Defendant will, therefore, be sentenced to a term of 70 months incarceration....
In the meantime, the "war on drugs" goes on. Others will undoubtedly replace Torrey Williams in the chain of drug commerce, and the Courts will continue to incarcerate them for long periods at alarming rates.
December 7, 2004 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (265) | TrackBack
Movement on mandatories?
There are this morning interesting discussions of mandatory minimum sentencing in federal and state systems.
On the federal front, there is this potent op-ed in today's Washington Post entitled "Mandatory Madness" authored by Professor Barry Scheck, who is currently serving as the president of the National Association of Criminal Defense Lawyers. (Thanks to CrimProf Blog for the tip here.) The piece calls upon Congress to use the legislative moment that Booker and Fanfan may create "to rectify an unfair and senseless disgrace that it should have confronted years ago: mandatory minimum sentences." Stressing the facts of the Angelos case (background here, commentary here and here), the recommendations of the ABA's Kennedy Commission (available here), and the costs of incarcerating low-level, small-time and nonviolent offenders, Professor Scheck concludes:
There is a developing consensus among judges, prosecutors and the defense bar that something must be done to restore sanity to federal sentencing. Let's hope it infiltrates the Capitol. Congress and the Sentencing Commission should create a blue-ribbon panel to study constitutional and human issues raised in the sentencing cases now before the Supreme Court. The panel should look at the good and the bad of what developed from the last effort at sentencing reform, 20 years ago. We can make the system better.
On the state front, TalkLeft notes here that there is talk once again in New York about reforming the state's Rockefeller drug laws. As TalkLeft notes, a key advocate pushing for reform is Manhattan District Attorney Robert Morgenthau, who, according to this New York Post article, is advocating a specific proposal that would "toughen sentences for violent and repeat drug felons while channeling low-level dealers away from the current mandatory prison sentences and into treatment." This recent Newday article provides more details on the legislative debate over drug sentencing reform, which has been raging in Albany for quite some time (as detailed here in FAMM's coverage).
More background on New York's Rockefeller drug laws can be found here from the Drug Policy Alliance, and a compelling (and lengthy) report critical of these laws, produced by the group Physicians for Human Rights and entitled "Unjust and Counterproductive: New York’s Rockefeller Drug Laws," can be accessed here (with highlights here).
At least one more day to wait for Booker and Fanfan
The Supreme Court did not hand down its decision in Booker and Fanfan today, although I have now heard from a large group of insightful folks predicting that tomorrow will (finally) bring the decision. As knowledgeable court-watchers detailed for me, the Court heard 11 arguments in the first sitting and has already issued four (relatively "easy") opinions from that sitting (as well as two other opinions).
Thus, it seems the smart money is on an opinion tomorrow. At this point, I will believe it when I see it. Fortunately, there is a lot of noteworthy sentencing law and policy development to keep us busy at least for the next 24 hours. Noticing some sentencing buzz around the blogsphere this morning, I will have posts soon about mandatory minimum sentencing and Blakely in the states.
December 7, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack
Here we go again
As previously reported here, the Supreme Court has announced that one or more opinions from argued cases will be issued today and tomorrow. Thus, I am preparing yet again for a decision in Booker and Fanfan. (I figure if I keep predicting the decision is coming, eventually I have to be right.)
Here are a few recent posts which I think are useful reading if a decision is indeed forthcoming:
- Booker and Fanfan pre-reading guide
- Gearing up for Booker and Fanfan
- Are federal prisons gearing up for Booker and Fanfan?
- How and how fast might Congress react to Booker and Fanfan?
- Will federal judges engage in the policy debate after Booker and Fanfan?
Additonal posts of note and other background materials on Blakely and Booker and Fanfan can also be found on this Blakely Basics page. And a wealth of additional information can be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.
December 7, 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 (2) | TrackBack
Compelling capital cases nationwide
The media provided lots of coverage of the Miller-El case argued before the Supreme Court yesterday, and Linda Greenhouse's NY Times account here includes all the highlights. The Texas case now in front of the Supreme Court for the second time (details here and here) is about jury selection more than sentencing, though it is a stark reminder of how, as we have seen throughout American history, racial dynamics infect the administration of capital punishment. Reading tea leaves, it was interesting that, according to the Times account, Justice Breyer said jokingly during the Miller-El argument that "It might be in my interest if people followed dissents more often." Perhaps this reveals Justice Breyer has Blakely on the brain.
In other interesting capital news, it now appears virtually certain that next month Connecticut will have its first execution in the modern death penalty era. As detailed in this news story, Connecticut Governor M. Jodi Rell stated yesterday that she will not issue a reprieve for serial killer Michael Ross, who is scheduled to be executed in January. In her public statement, which you can read here, Governor Rell also said she would veto any legislation that repeals the state's death penalty.
Replaying a common pattern for the first execution in a state, Michael Ross is a "volunteer" who is seeking to speed his path to Connecticut's death chamber. (The very first person executed after Furman was volunteer Gary Gilmore; here in Ohio, the first person executed was volunteer Wilford Berry; the federal death penalty got back in business with volunteer Timothy McVeigh.) In this case, defendant Ross even wrote a long letter to Governor Rell asking her not to use her reprieve power, which you can read about in this AP story.
And, on the other coast, this news story reports on the California Supreme Court case which will try to resolve which criminal defendants qualify as "mentally retarded" and thus constitutionally ineligible for execution. In 2002, the Supreme Court in Atkins v. Virginia declared that executing persons with mental retardation was now unconstitutional, but the Justices punted to the states the tough medical/legal question of who qualifies as "mentally retarded."
UPDATE: Thanks to Howard Bashman at How Appealing for the links here, you can read more this morning from the The Hartford Courant about Connecticut Governor Rell's decision not to issue a reprieve for serial killer Michael Ross.
December 6, 2004
Will Booker and Fanfan clarify Blakely admissions?
I noted here not long after Blakely came down how many questions the decision raised, but left off that initial list was what qualifies as a sufficient factual "admission" by a defendant to allow for an enhanced sentence. As detailed here, the Northern District of Texas Federal Public Defender filed an amicus brief in Booker and Fanfan just to address this "admissions" issue, which spotlights its considerable importance.
I have been meaning to highlight some insightful dicta from a Third Circuit case last month discussing the admissions issue. In US v. Thomas, 2004 WL 2680755 (3d Cir. Nov. 26, 2004), the court detailed the ambiguities stemming from the fact that "the Blakely opinion excepts from its scope sentences imposed 'on the basis of the facts ... admitted by the defendant.'" Here is the court's lament:
There are at least four possible interpretations of the language "facts ... admitted by the defendant." First, that language could refer to facts set forth in the indictment to which the defendant pled guilty. Second, it could refer to facts set forth in the written plea agreement entered into by the defendant. Third, it could be limited to the facts necessary to prove a violation of the offense charged in the indictment. Fourth, it could refer to facts admitted in the colloquy with the District Court.
Based on the facts before it, the Thomas court could avoid resolving this matter. But in a number of state and federal decisions since Blakely, lower courts have given various interpretations as to what sort of admissions are sufficient for Blakely purposes: e.g., Michael Ausbrook at INCourts thoughtfully noted how this issue was addressed in the case of Trusley v. State, No. 41A01-0403-CR-109 (Ind. Ct. App. Nov. 24, 2004), from Indiana in this post, and judges on the Tennessee appellate court tussled over this issue recently in State v. Walters, 2004 WL 2726034 (Tenn. Crim. App. Nov. 30, 2004).
Because both Booker and Fanfan arise from jury trials rather than pleas, it seems unlikely this addmissions issue will be directly addressed by the High Court. However, what sort of admissions are sufficient for Blakely purposes is yet another critical practical issue that will need to be worked through in the post-Blakely world.
Seventh Circuit remedies ugly case of prosecutorial (in)discretion
The recently released US Sentencing Commission 15-year report (highlights here) and the recent Wall Street Journal article on inconsistent application of cooperation credit (details here) both suggest that variations in the exercise of prosecutorial discretion may produce disparities in federal sentencing outcomes. And a decision last week from the Seventh Circuit in US v. Wilson, No. 03-2170 (7th Cir. Dec. 2, 2004), in which the court found prosecutors acted in bad faith in denying a sentence reduction to a defendant for "substantial assistance," reveals how this discretion can be badly abused. (Hat tip to CrimProf Blog for noting the case here.)
In recent posts, I noted a Kafkaesque quality to recent federal and state sentencing cases; but the Wilson case was precipitated by facts which might make even Franz Kafka blush. Defendant Wilson in a previous case had been granted a two-year reduction in his sentence, but
on account of a bureaucratic bungle, the reduction was never communicated to the individuals who could effectuate it (presumably officials at the Bureau of Prisons). Thus, Wilson neither learned about nor received the benefit of the two-year reduction the district court had granted him.
In the current case, Wilson's defense attorney sought to get him the benefit of the lost two years, in addition to a reduction Wilson was promised for his substantial assistance with authorities. But, after an elaborate series of events, prosecutors refused to make a necessary motion for the promised reduction. However, the Seventh Circuit in Wilson ultimately held that the USA's Office in Southern Illinois acted in "bad faith" and "abused" its discretion by conditioning the reduction on concessions that had absolutely nothing to do with "substantial assistance".
Fascinating and sobering evidence of sentencing discrimination
By Afro-centric features, we mean those features that are perceived as typical of African Americans, e.g., darker skin, fuller lips, or a broader nose. What our research found was that when one examines sentencing from this perspective, those inmates who have more pronounced Afro-centric features tend to receive longer sentences than others within their racial category who have less pronounced Afro-centric features.
If you are intrigued by this brief account of the piece (and how could you not be), you can download the full draft here:
More consequences while we wait for Booker and Fanfan
As detailed in this AP report, US District Judge Sylvia H. Rambo today allowed recently convicted Rite Aid executive Franklin Brown to remain free on bail pending appeal, at least until the Supreme Court decides Booker and Fanfan. As article explains, "Brown was convicted last year of 10 criminal counts related to his tenure as the pharmacy chain's vice chairman and top lawyer [and] had been scheduled to turn himself in Dec. 13 to begin serving a 10-year prison term." Here are more snippets from the story:
"The Blakely issues in this case are significant, and a definitive resolution of the matter could be forthcoming," Rambo wrote in a seven-page ruling.
Brown attorney Peter Goldberger said Monday his client was "relieved" to get news of Rambo's decision. "But in the short term. For now," Goldberger said.... "It's not a case where you can say, this side will win or that side will win, and that you'll know the minute the decision is handed out," he said.
Perhaps this means there may be one person rooting for the decisions in Booker and Fanfan to take a lot longer. But I continue to hope that this week we finally get a decision from the Supreme Court. As noted before, the Court has announced that opinions will be issued each of the next two days, and eventually I have to be right when predicting the decision is coming soon.
More on BOP gearing up for Booker and Fanfan
I have received a lot of terrific feedback from many quarters to this post inquiring about efforts inside federal prisons to gear up for a decision in Booker and Fanfan. The feedback has all essentially confirmed that the Bureau of Prisons has encouraged each of its 100-plus institutions to take appropriate steps to inform prisoners about the outcome in Booker and Fanfan (whenever that happens) and to make the opinion and other legal materials available as part of a broader effort to ensure open communication at this dynamic time in federal sentencing.
In the course of my discussions of these matters, I was reminded of the riots that took place in more than a few federal facilities in October 1995 after Congress rejected the US Sentencing Commission's recommendation to lower crack cocaine penalties, which forced the US Department of Justice declared a lockdown at federal prisons nationwide. Whatever the outcome in Booker and Fanfan, I sincerely hope the reaction is calm and orderly everywhere.
Resources on Texas justice
Responding to some of my weekend posts here and here on the unique brand of justice in Texas, Scott Henson, a non-lawyer working on sentencing issues in the Texas legislature, referred me to his blog on criminal justice topics, wonderfully named Grits for Breakfast.
The Grits Blog includes a lot of coverage of non-capital sentencing issues in Texas — e.g., a great post on drug courts in Texas can be found here, which is a terrific supplement to my recent drug courts post here. The blog also has many useful links to Texas criminal justice resources and organizations. Check it out, especially if you have a particular interest in Lone Star justice.
Remarkable retro retroactivity reality
I reported here on a federal case with Kafkaesque qualities, but a case coming from the Illinois Supreme Court last week has a factual backdrop that perhaps not even Franz Kafka could have imagined. The case of Lucien v. Briley, 2004 WL 2743586 (Ill. Dec. 2, 2004), concerns the retroactive application of Apprendi and Blakely, and it raises some issues I recently highlighted here.
Lucien is not remarkable legally, though it does reiterate the view of the Illinois Supreme Court that Apprendi (as well as Blakely) is a "new procedural rule" that will "not apply retroactively to cases in which the direct appeal process had concluded when Apprendi was decided." But Lucien is quite remarkably factually because the lower Illinois courts had applied Apprendi retroactively in state habeas and had released the defendant from custody in December 2001. Thus, at the time of the Illinois Supreme Court's decision last week, defendant Lucien had been free for three years (after having served more than 20 years of the 60-year extended-term sentence that had been imposed based on judicial fact-finding in 1980).
Interestingly, Lucien argued to the Illinois Supreme Court that he should not be reincarcerted because "his conduct while at liberty establishes that he is rehabilitated." The Court ducks this compelling claim, even though it seems to find support in a provision of the Illinois Constitution, by remanding the case for further proceedings in the lower courts.
Based on these remarkable facts, it is interesting to speculate whether (1) Lucien might seek cert. on the Apprendi retroactivity issue (if only perhaps to try to extend his time free), and (2) whether lower courts might accept Lucien's claim that "public policy forbids reincarcerating a rehabilitated person at further public expense." But, regardless of the court happenings, this seems like a case where executive clemency could bring a close to a case which seems more appropriate for resolution in equity than at law.
December 5, 2004
Monday's SCOTUS sentencing docket
Professor Mark Godsey at CrimProf here provides the basics on the two cases with sentencing law and policy issues that the Supreme Court hears tomorrow. As evidenced by the coverage of the Miller-El case over at SCOTUSblog and today's articles in the NY Times and the Houston Chronicle, the death penalty aspect of the Miller-El case will ensure it gets plenty of attention. However, the case of Wilkinson v. Dotson could ultimately prove more consequential.
As detailed in this summary, Dotson is legally quite complicated, but at its core the case concerns whether challenges to parole procedures must be brought as habeas corpus claims or can be brought in section 1983 actions. Last week, I had a chance to moot OSU Professor and now Ohio State Solicitor Doug Cole, who will be arguing this case for the state of Ohio. The case might be called a doctrinal Gordian Knot, and it will ultimately be interesting to see if any of the Justices steps up in the case to play the role of Alexander.
A Kafkaesque federal sentencing story
Though the history of the case, not to mention the circuit court's interpretation of a federal sentencing statute, has too many twists and turns to recount here, Pabon-Cruz highlights substantively and procedurally how bewildering federal sentencing can be. Howard Bashman provided the essentials of the case here, and the bizarre upshot now is that US District Judge Gerard Lynch — in a case which he described as "without question the worst case of [his] judicial career" due in part to the inconsistencies in federal sentencing of child pornography offenses — has discretion to impose a fine or a 10-year imprisonment term but nothing in between.
Continuing coverage of capital (in)justice, Texas-style
Providing additional coverage of the various Texas death penalty issues making headlines, this Houston Chronicle story examines why the Supreme Court has had to consider repeatedly capital cases arising from the Fifth Circuit. Read together with a similar article making the front page of today's NY Times (discussed here), it should be clear to everyone what capital litigators have known for a long time: Texas, especially in death penalty cases, has its own brand of justice.
Relatedly, this Village Voice article by Nat Hentoff provides another review and lament of the role that AG nominee Alberto Gonzales played in Texas capital justice when advising then-Texas Governor Bush on clemency petitions. (Additional background on this issue can be found prior posts entitled The AG and the death penalty and AG nominee Gonzales and sentencing issues.)
Are federal prisons gearing up for Booker and Fanfan?
I have heard a fascinating rumor that the Justice Department last week sent a long memo to those who oversee federal prisons. As reported to me, this memo indicated that a decision in Booker and Fanfan is expected soon and it called for making preparations in prison law libraries and elsewhere for a possible major increase in the "legal workload."
As described to me, the memo would suggest that the executive branch is making a very appropriate effort to help deal with all the prisoners who will claim their sentence is unconstitutionally problematic after Booker and Fanfan (an issue I recently spotlighted here). But I have not seen this memo, and thus now I am reporting this information third-hand.
Can any readers confirm (or deny) this existence of this memo? And if anyone has a copy of this memo, I would be grateful to receive it by e-mail or fax. Whether this memo exists or not, I doubt I am the only one seriously gearing up for Booker and Fanfan.
UPDATE: I have already received a few e-mails from prisoners' family members relaying that prisoners have reported unusual lockdowns and/or meetings apparently related to Booker and Fanfan this past week. Keep the reports coming in the comments and via e-mail.
For the death penalty historian
With great thanks to Jack Chin for this post at CrimProf Blog, I came across an amazing series of articles in the Richmond Times Dispatch looking at the history of Virginia's use of the death penalty from 1908 to 1954. The series of articles, like Virginia's use of the death penalty during this period, is dominated by race. As the main article details, of the "the 221 men and one woman executed in that 46-year period, 191 were black" and all of the "37 men executed for rape, all 13 executed for attempted rape and all five executed for robbery were black."
The main article, which is entitled "The execution files: State's death penalty history told in personal records of the condemned," draws on letters from prisoners to spotlight the many human stories behind these statistics. And the series includes an article on the "Martinsville Seven", a group of black defendants quickly prosecuted and executed for the rape on one woman, as well as pieces focused on the way race was built into Virginia's capital punishment laws, and the racial realities of a 1931 rape trial.
On a much lighter note, and on a history subject that has nothing to do with sentencing (unless King Tut was actually murdered), this Steve Martin op-ed in the NY Times made me laugh out loud, as did reviewing the song he is discussing.
Debating the structure of post-Blakely sentencing
This article from the Seattle Post Intelligencer entitled "Lawyers work to recraft sentencing guidelines" provides a thoughtful and intriguing account of the on-going debate in Washington over how to amend the state's guidelines to best accommodate the demands of Blakely. The article details that prosecutors and defense attorneys are dickering over how to define and structure aggravating and mitigating sentencing factors, although there are apparently significant points of consensus:
Defense attorneys and prosecutors agree that prosecutors should declare their intention to seek above-standard sentences when they file charges, and that juries generally would consider aggravating circumstances during the trial.
The article closes by noting that some of Washington's state judges are actually advocating the most radical response to Blakely. According to the article, the "state Superior Court Judges' Association favors a simple solution: making the guidelines voluntary."