December 20, 2004
Predicting the Supreme Court's coming sentencing docket
It is, of course, premature to speculate about the Supreme Court's next Blakely case before it decides Booker and Fanfan. But interesting posts here and here by Tom Goldstein over at the SCOTUSblog about the Supreme Court's docket has me wondering whether cert. petitions are being filed by federal defendants like Levy (background here) or state defendants like Lucien (background here) to make it possible the Court could speak directly to Apprendi/Blakely retroactivity issues this term. (Of course, it is possible, though I think unlikely, that the High Court will speak directly to retroactivity issues in Booker and Fanfan.)
Meanwhile, as this AP story details, Kansas prosecutors are hoping that the Supreme Court might take up one more death penalty case this term. As the article details, the Kansas Supreme Court agreed to stay its Marsh ruling last week (details here) declaring Kansas's death penalty law unconstitutional while Kansas Attorney General Phill Kline pursues an appeal to the Supreme Court. (However, since only six defendants' fates depend on the Marsh ruling, while the fates of hundreds of thousands of defendants might depend on Blakely's retroactivity, I am not sure the Marsh case ought to be a High Court priority.)
Blakely's lawyer gets more props
I joked here this weekend that Blakely might be called the Rodney Dangerfield of Supreme Court decisions because it may not always gets the respect I think it deserves. But, thankfully, at least Blakely's Supreme Court lawyer is getting the respect he is due.
As discussed here, earlier this month the Los Angeles Times did this lovely profile of Jeff Fisher, the (young) Seattle lawyer who argued and won both Blakely and Crawford v. Washington last term before the Supreme Court. And now, based on this amazing High Court track record, The National Law Journal in this article has named Jeff runner-up as "Lawyer of the Year." (To find out who beat out Jeff, read here; bonus points to any reader who can name the substantial link the winner has to sentencing reform.)
Debating sentencing data
A few weeks ago, as noted here, the Washington Post ran this op-ed entitled "Mandatory Madness" in which law professor and NACDL president Barry Scheck calls for reform of harsh federal mandatory drug sentences. In the middle of his wide-ranging and powerful critique of federal sentencing laws, Professor Scheck stated: "According to the Bureau of Prisons, more than half of the 180,000-plus people in federal institutions are there for drug law violations. Most are low-level, small-time and nonviolent offenders."
This weekend, the Washington Post ran this letter in response from Dan Bryant, who is identified as "assistant attorney general for legal policy at the Justice Department." The letter asserts that Scheck's claim about low-level, federal drug offenders "is inaccurate," and then rattles off the following statistics:
Justice Department data show that 91 percent of all prisoners (state and federal) are either recidivists or violent offenders. Of those in state prisons, 76 percent are multiple offenders and 62 percent have a history of violence, while a full 66 percent of federal offenders have been convicted of multiple or violent crimes.
Furthermore, most nonviolent criminals are neither low-level nor small-time: 84 percent of these "nonviolent" offenders in state prison have prior criminal records, averaging more than nine arrests and four convictions apiece. In fact, a third of these nonviolent offenders could even be classified as "previously violent," as they have previous arrests for violent crimes. Federal nonviolent inmates have only marginally less criminal backgrounds than their state counterparts: 79 percent have prior records, averaging more than six arrests and two convictions. The notion that our prisons are filled with nonviolent, first-time offenders is simply not true.
This letter concludes: "We agree that there should be a healthy debate about sentencing, but we insist that this requires equipping Congress and the American people with the facts, not misleading rhetoric." (The use of the "we" hints that this letter may represent a semi-official Justice Department response, rather than Dan Bryant's personal views. Indeed, the letter echoes points and phrases used by Assistant AG Christopher Wray, in his official testimony to the US Sentencing Commission last month.)
Over the weekend, this letter and its data-based rebuttal of Professor Scheck's assertions have been the buzz of a listserve to which I subscribe. In the dialogue, I noted that the letter makes heavy use of state statistics (or combined state/federal statistics) in response to an op-ed which was focused exclusively on federal sentencing. Another person spotlighted that the letter makes a "rhetorical slip from 'low-level' to 'first-time' offenders." Others noted that even some minor federal drug offenses are statistically categorized as "crimes of violence." For a letter espousing the importance of facts over misleading rhetoric, the letter does a mighty good job stressing facts which could mislead.
Putting aside dickering over rhetorical use of facts, the data stressed in the Bryant letter actually prove Scheck's chief points. The statement that "66 percent of federal offenders have been convicted of multiple or violent crimes" in turn means that 34% (more than 1/3) of all federal offenders are one-time, nonviolent offenders (and I suspect the percentage of low-level, nonviolent drug offenders may be even higher). With a federal prison population of over 180,000, this suggests that in excess of 60,000 persons are serving time in a federal prison as a result of a one-time, nonviolent offense. It seems our federal prisons are in fact filled with nonviolent, first-time offenders. (Notably, the 60,000 persons now serving federal time as a result of a one-time, nonviolent offense is more than double the total federal prison population 25 years ago.)
I am glad to see from the Bryant letter that the Justice Department welcomes "healthy debate about sentencing," and I am also glad to see an emphasis on offenders "convicted of multiple or violent crimes." The states have generally been effective at focusing long sentences on repeat and violent offenders, and federal law should follow their lead. Indeed, based on the themes and claims in the Bryant letter, it would seem that DOJ would and should be against all mandatory sentencing except for serious recidivist or violent criminals. That was the main thrust of Scheck's op-ed, and a careful analysis of the Bryant letter perhaps reveals more harmony than discord in views about sensible federal sentencing policy.
A morning full of sentencing stories
The newspapers this morning have a number of interesting stories on a number of interesting and diverse sentencing topics. Here's a sample of some of the highlights:
- On the Blakely front, this article from the Minneapolis Star Tribune discusses thoughtfully the struggles in Minnesota with state sentencing procedures after Blakely; this article from the Pittsburgh Post-Gazette explores possible reasons why the Supreme Court has not decided Booker and Fanfan yet.
- In other state sentencing stories, this interesting article from Vermont discusses the Governor's plans "to release a detailed proposal to ease the overcrowding that has been plaguing the corrections system." As the article details, the plan includes "recommendations to build a work camp and to use sophisticated technology to monitor inmates outside of the traditional prison setting."
- From the death penalty desk, this article from the New York Times analyzes the on-going debate over revising New York's (now unconstitutional) death penalty law; and editorials from Michigan and Ohio provide more arguments for reconsidering, or at least reexamining, the use of capital punishment (similar recent editorials are discussed here).
December 19, 2004
New California report on women and parole
This weekend I received a copy of "Breaking the Barriers for Women on Parole," a report recently produced by California's Little Hoover Commission, a governmental watchdog agency. This sizeable report — which runs over 100 pages but has an effective executive summary (and can be downloaded here) — addresses not only parole issues, but also California's entire correctional structure while urging using female offenders as pioneers for system-wide reforms.
This fact sheet from the Commission details the growth in California's female prison population over the last two decades, as well as interesting statistics about male and female offenders. And this press release provides both background and context for the report. Here are some highlights from the press release:
The State could save money, improve public safety and break the cycle of crime if it reformed the way it incarcerates women offenders and supervises them on parole, the Little Hoover Commission concluded Wednesday....
Most female felons were victims before they were offenders, most are single parents, and most were convicted of non-violent, drug or property crimes. The Commission urged the State to develop a new strategy for women offenders that relies less on large and remote prisons designed to incapacitate violent offenders and more on community correctional facilities that can better reconnect paroling women to jobs, housing, emotional supports and their families....
In this report, the Commission challenged the State to be smart on crime — not just tough on crime — and to start with women offenders. "Fixing the system for women parolees also can be a good test of the correctional system’s desire and capacity to improve. Lessons learned improving outcomes for women can inspire and guide the management of the critically necessary larger reforms," Commission Chairman Michael E. Alpert said.
State courts gone Blakely wild
The important Blakely rulings this week from the Minnesota Supreme Court in Shattuck (details here) and from the Oregon Supreme Court in Dilts (details here) are just one reflection of all the recent state Blakely activity. To twist my favorite lines from the all-time great movie Airplane!, "Looks like I picked the right weeks to stop tracking state Blakely cases." (Background here and here.)
In the first two weeks of December, there were over 100 state intermediate appellate Blakely decisions appearing on-line. And on December 16 alone there were major Blakely rulings in no less than seven states: in addition to Shattuck from Minnesota and Dilts in Oregon, Arizona had State v. Gatliff, 2004 WL 2902551 (Ariz. App. Div. 1 Dec. 16, 2004), Colorado had People v. Barton, 2004 WL 2903510 (Colo. App. Dec. 16, 2004) (previously discussed here), Indiana had Berry v. State, 2004 WL 2903687 (Ind. App. Dec. 16, 2004), Washington had State v. Mabry, 2004 WL 2905239 (Wash. App. Div. 3 Dec. 16, 2004), and California had its standard daily complement of more than a half-dozen published and unpublished Blakely rulings.
I think all the recent state Blakely activity, especially late last week, likely is partially a result of the non-arrival of Booker and Fanfan. The state courts now know they are going to have to wait at least another month before getting additional Blakely guidance from the US Supreme Court. Thus, even though they realize that, in the words of the Oregon Supreme Court, they "may be shooting at a moving target," these courts perhaps now feel compelled to render decisions in major Blakely cases rather than continue to wait and hope for the US Supreme Court to soon clear up some of the Blakely confusion.
Reconsidering the death penalty
In this editorial, the Wichita Eagle calls for the Kansas legislature to respond to the Kansas Supreme Court's recent decision declaring the state's death penalty unconstitutional (basics here) by taking "a hard look at its troubled 10-year history." This editorial concludes: "The high costs and problems on appeal are making it harder all the time to see why the death penalty is worth having in Kansas."
Relatedly, this editorial from Connecticut uses the planned execution of Michael Ross, the first person due to be executed in Connecticut in the modern death penalty era (details here), to argue that a "civilized nation should not adopt as public policy laws that give prosecutors the right to execute human beings." This editorial concludes: "The legislature needs to act to reaffirm human dignity and the sanctity of human life. Carrying out death penalties does neither."