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 (4) | 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.