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January 8, 2005

DOJ left hand meet DOJ right hand

On Thursday, as detailed here, AG nominee Alberto Gonzales testified to Congress that he believes "there is a segment of the prison population — juveniles, ... first-time, maybe sometimes second-time offenders — who can be rehabilitated."  He also said, "I think it is not only smart, but I think it's the right thing to do. I think it is part of a compassionate society to give someone another chance."

On Friday, we get news of a much different story on rehabilitation.  According to this article from Buffalo, the "Bush administration plans to eliminate a shock incarceration program that many considered a progressive way to help first-time offenders avoid long federal prison terms."  Here are some highlights, or should I say lowlights, from the article:

While no formal announcement has been made, Carla Wilson, a U.S. Bureau of Prisons spokeswoman in Washington, confirmed Friday that the 14-year-old Intensive Confinement Program will be discontinued.  "Yes, we got word that it's being phased out," she said. "I don't have a lot of information on it at this point."...

"We've been told by (prison officials) that they felt the program was not cost-effective and was not successful at preventing people from becoming repeat offenders," one court official said.

The program was designed for younger, nonviolent, first-time convicts who faced no more than 30 months in federal prison. Those who qualified spent six months in an intensive "boot camp" that provided strict discipline, job training and counseling, followed by time in a community halfway house and home confinement.

Plans to close down the program drew a negative reaction from a federal judge in Buffalo and from defense attorneys, who called it a rare glimmer of hope for young people entering the criminal justice system.

"I'm shocked," said District Judge William M. Skretny, who has recommended about 60 defendants for the program since becoming a judge in 1990. "I'd be very disappointed if this shutdown goes forward. I've had prisoners write to me after going through the program and tell me what a positive experience it has been in their lives."

"This is a step backward for the rehabilitation of criminals," said Timothy W. Hoover, a federal public defender. "This is the crown jewel of the federal prison system. It helps people to get their lives on track. They're shutting it down without even consulting with the most important people - the judges who do the sentencing."  Hoover said he contacted the Bureau of Prisons on Friday and was told rumors of the program's demise were true....

The shutdown also upset Mary Price, general counsel to Families Against Mandatory Minimums, a 35,000-member nationwide group that has been lobbying for sentencing reforms in the federal and state courts.

"This is the kind of program that President Bush and his administration should love," she said. "It's a program designed to give people the tools to improve themselves and get back into the world.  At a time when federal sentencing and law seem to be moving in the wrong direction, this program was a beacon.  It's all about rehabilitation."

January 8, 2005 in Blakely Commentary and News, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

Indiana capital commutation and other capital news

As detailed in this article, out-going Indiana Governor Joe Kernan yesterday commuted the death sentence of Michael W. Daniels to life without parole for his 1978 murder of a minister during a petty robbery that netted $1.  As the article details, this is Gov. Kernan's second capital commutation and his written explanation asserts these cases "should cause us to take a hard look at how Indiana administers and reviews capital sentences."   

The four-page statement by Gov. Kernan in support of this commutation, available here, is a fascinating read which covers many issues including ineffective assistance of counsel, proportionality and the defendant's low IQ.  The statement partially undermines and partially underscores some of Professor Austin Sarat's recent commentary about clemency in capital cases.

And there are other interesting death penalty stories, in addition to the SCOTUS cert. grants, to review this morning:

January 8, 2005 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Gonzales hearing highlights (torture-free)

Busy at this conference, I did not get a chance to see any of the confirmation hearings for AG nominee Alberto Gonzales.  But one of my great research assistants was kind enough to provide me excerpts with some Q & A on topics other than the torture memos.  These excerpts, which can downloaded below, all make for quite interesting reading.

As I expected, there was a little sparing over Gonzales' capital clemency memos for then-Governor Bush in Texas (background here).  But much more interesting, and a lot more encouraging, were some questions from Senators about Gonzales' support for greater rehabilitation programming for federal prisoners. 

Notably, and perhaps not surprisingly, it was Republican Senators Sam Brownback and Tom Coburn and Arlen Specter who had the courage to talk about being smart on crime as well as tough on crime.  As set forth in the first set of excerpts below, Senator Brownback, after noting President Bush's discussion of re-entry issues in his 2004 State of the Union address, promoted his bill for providing intensive treatment and counseling as prisoners are approaching release; Senator Coburn stressed drug crimes and stated boldly "we ought to be doing drug treatment rather than incarceration"; and Senator Specter asserted that these issues are "going to be a priority for the Judiciary Committee this year and next year and into the foreseeable future," and he stressed the importance of distinguishing violent and non-violent criminals.  Among other responses, AG nominee Gonzales said on these issues:

I agree ... that for people who commit violent crimes and are career criminals, they should remain in our prisons.  But there is a segment of the prison population — juveniles, for an example, as you mentioned, and first-time, maybe sometimes second- time offenders — who can be rehabilitated.

And as I said earlier in response to a question, I think it is not only smart, but I think it's the right thing to do. I think it is part of a compassionate society to give someone another chance.

Download gonzales_hearing_excerpts_part_1.doc

In the second set of excerpts below, after more discussion of the clemency memos, Senator Dick Durbin spotlighted racial inequality in both capital and noncapital sentencing and also asked Gonzales directly his opinion of mandatory minimum sentencing.  Gonzales' answers here were a bit more evasive, but I was pleased to see he was up on the legal realities.  Here's the money quote from Gonzales on my favorite topic:

The sentencing guidelines are subject to litigation being reviewed now by the Supreme Court. And so we're all waiting to see whether or not, under Booker and Fanfan, that the court's going to apply the Blakely decision to the sentencing guidelines. And if that happens, I suspect you and I and other — if I’m confirmed — other members of the committee will be spending a lot of time talking about sentencing issues.

Download gonzales_hearing_excerpts_part_2.doc

January 8, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Clemency and Pardons, Criminal Sentences Alternatives, Drug Offense Sentencing, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Still more death penalty SCOTUS litigation

As effectively documented in this AP article, the Supreme Court yesterday granted cert. on two more death penalty cases.  Interestingly, both cases involve state appeals of lower court victories by death row inmates. 

Also quite interesting is that both cases come from the 6th Circuit, which is not thought to be an especially liberal court (although, as these cases show, the 6th Circuit has often been more searching in their review of capital cases).  I am inclined to joke that perhaps the cert. petitions in these cases were handed to the Justices upside-down so they thought they were granting cert. on two 9th Circuit death penalty reversals.

January 8, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

January 7, 2005

Death penalty litigation updates

I previously noted here that, though December was death-penalty free, January would be an active death penalty month, especially because Connecticut is poised to have its first execution in the modern capital era and California is scheduled to have its first execution in a number of years.

Thanks to Howard Bashman at How Appealing, I can provide updates on both of these capital stories.  At this post here, Howard has collected an array of articles and links concerning the legal battle over the planned execution of serial killer Michael Ross, who has voluntarily waived his remaining appeals and adamantly opposed others trying to halt his execution.  And here, Howard has the latest articles detailing Donald Beardslee latest failed efforts to get a court to disrupt his scheduled January 19 execution.

January 7, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

A (too?) clever Blakely plea attempt

With many thanks to a reader for the tip, I can note this fascinating article from Chicago discussing a federal white-collar offender's attempt to plea guilty without "Blakely" enhancements.  As the article details, prosecutors have urged US District Judge Elaine Bucklo to reject the defendant's guilty plea as "fluff."

January 7, 2005 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

A few quick notes from AALS

As detailed in this post, yesterday at the AALS conference the McGeorge School of Law's Capital Center for Government Law and Policy hosted a breakfast meeting to discuss this proposal for wholesale reform of California's sentencing practices.  The discussion was provocative (and the food copious), and I hope the proposed blue-ribbon commission becomes a reality.

Interestingly, as well covered by TalkLeft here and this LA Times article, "Schwarzenegger administration officials Thursday unveiled a new model [for the operation of California's prisons which] aims to reduce crime by better preparing inmates for life on the outside."  Though corrections reform and sentencing reform are distinct issues, the concerns intersect and overlap in important ways.

Also, at the lunch of the Criminal Justice Section, I rambled on for too long about blogging (but, as my students know, that is not uncommon when I am talking about sentencing and have the podium).  Thankfully, Ellen Podgor of the White Collar Crime Prof Blog does a lovely job here making my ramblings seem insightful.  Thanks, Ellen.

I am especially exited for this afternoon's session on "The Rehabilitation of Rehabilitation" (detail at this link), though I am a bit grumpy it will be rain and more rain here in SF now until I head back to Ohio.  At least the family and I got to see the sea lions at Pier 39 yesterday.

January 7, 2005 | Permalink | Comments (0) | TrackBack

Strange 10th Circuit holding

To date, I believe that the Tenth Circuit has not formally ruled on Blakely's applicability to the federal guidelines. But an opaque recent decision from a Tenth Circuit panel seems to suggest that Blakely has not altered the application of the federal sentencing guidelines at all.

In United States v. Sharbutt, 2005 U.S. App. LEXIS 122 (10th Cir. Jan. 5, 2005), the court repeatedly cites and quotes post-Apprendi, pre-Blakely cases in support of the proposition that the Sixth Amendment "does not apply to sentencing factors that increase a defendant's guideline range but do not increase the statutory maximum."  But, of course, Blakely is so consequential because it seems to change this understanding of Apprendi's reach. And, confusing matters in Sharbutt, the court also makes reference to the Apprendi/Blakely exception for "prior convictions," although it seems the defendant in Sharbutt is objecting to judicial fact-finding relating to his possessing a firearm in connection with drug distribution.

Because the Sharbutt ruling is unpublished, only the defendant and his lawyer will have to figure it out.  But the case is further evidence that, even six months after Blakely, applications of the decision can be quite confused.

January 7, 2005 in Blakely in Appellate Courts | Permalink | Comments (0) | TrackBack

January 6, 2005

Big reports from Indiana and Minnesota

I was planning to blog a bit less while at this conference, but there is just too much exciting stuff going on for me to stay away from the computer.  Most notably today, I have received word of two (huge) reports on state sentencing from Indiana and Minnesota:

January 6, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

Blakely not a problem in Idaho

Thanks to a tip from a FOB ("friend of blog"), I can report on the first Blakely case that I know about from Idaho. Today, in Idaho v. Stover, No. 30313 (Idaho Jan. 6, 2005), the Idaho Supreme Court ruled that Blakely does not effect Idaho's "indeterminate sentencing system."  Here's some key language from the opinion:

Idaho's sentencing scheme requires no findings of fact under I.C. § 19-2521... [and] the wording of the statute and Statement of Purpose plainly show these are true guidelines that merely suggest sentencing criteria for exercising the court’s discretion....

Idaho’s review of sentences is under an abuse of discretion standard and is not dependent upon specific fact finding enforced statute. Additionally, Idaho has specified sentences that may be enhanced, i.e., I.C. § 19-2520, extended sentences for use of a firearm or deadly weapon. All of these enhanced sentence schemes for firearm, drug amounts or prior convictions are submitted to the jury as part of the crime and proven beyond a reasonable doubt.

Throughout I.C. § 19-2521, there are references to the full discretion of the sentencing judge. Idaho Code § 19-2521(1) in dealing with aggravating sentencing issues leaves to the "opinion" of the district court as to whether imprisonment is appropriate. The legislative history and statutory language are clear in stipulating that the district court’s decision-making process should include a review of I.C. § 19-2521 criteria but the district court’s own discretion or opinion is the final authority. When looking at the mitigating factors of I.C. § 19-2521(2) the statute states the “grounds, while not controlling the discretion of the court, shall be accorded weight.”...

Idaho’s sentencing scheme is unaffected by the holding in Blakely.

January 6, 2005 in Blakely in the States | Permalink | Comments (6) | TrackBack

Sentencing and religion

The intersection of sentencing issues and religion is a fascinating (and, in my view, underexamined) topic. These matters are actively percolating in the corrections setting, with the faith-based prison movement and a forthcoming Supreme Court case about RLUIPA (background here).  We also often see opposition to the death penalty influenced by religious views, as evidenced by developments last year in Ohio and the work of Sister Helen Prejean.  But on occasion, as evidenced by an intriguing Sixth Circuit case today, these matters can also intersect in individual sentencings.  (Thanks to How Appealing and a reader for the tip.)

In today's Sixth Circuit decision in Arnett v. Jackson, No. 03-4375 (6th Cir. Jan. 6, 2005), a divided panel reversed a grant of habeas corpus in favor of a state prisoner in a child rape case.  The district court granted habeas due to the state trial judge's reference to the Bible during petitioner's sentencing hearing, based on the conclusion that the "trial court's use of the Bible as a 'final source of authority' constituted an impermissible factor for sentencing." 

The Sixth Circuit, over a vigorous dissent, disagreed: it contended that "the principle embedded in the referenced Biblical passage (of not harming young children) is fully consistent with Ohio’s sentencing consideration to the same effect," and it suggested that the state trial judge "cited to the Biblical passage to underscore the contention that our society has a long history of sternly punishing those people who hurt young children."  The whole case is a very interesting read, as this provocative passage from the Judge Clay's dissent highlights:

If the Constitution sanctions such direct reliance on religious sources when imposing criminal sentences, then there is nothing to stop prosecutors and criminal defense lawyers from regularly citing religious sources like the Bible, the Talmud, or the Koran to justify their respective positions on punishment. The judge would be placed in the position of not only considering statutory sentencing factors, but also deciding which religious texts best justify a particular sentence. Under this approach, the judgments of trial courts could begin to resemble the fatwas of religious clerics, and the opinions of appellate courts echo the proclamations of the Sanhedrin. The result would be sentencing procedures that create the perception of the bench as a pulpit for which judges announce their personal sense of religiosity.

January 6, 2005 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

The power of the headline-making crime

I have often lauded Minnesota for its handling of Blakely issues (see here and here), and Professor Richard Frase's recent article (discussed here) highlights Minnesota's guideline system as a model for other jurisdictions.  But the latest news from Minnesota highlights that even this state can have its sentencing policy influenced greatly by one headline-making crime.

As detailed in this article, as a result of the disappearance of Dru Sjodin, a college student kidnapped from a North Dakota mall, the state has been considering sex-offender legislation and Governor Tim Pawlenty has labeled sex offenders "his number public safety issue."  In this well-done editorial, the Minnesota Star-Tribune highlights the problem with such an approach to criminal justice policy-making:

Not every tragedy can be prevented by legislation. Not every crime is reason to revamp the criminal code. These are lessons Minnesota leaders should take to heart as they think about how to handle Minnesota's sex offenders. Though the topic sits near the top of this session's agenda, it's not at all clear that any of the various "reforms" so far proposed would actually enhance public safety.

It's easy to see why state leaders are now so keen to crank up sentences for sex crimes, They are properly horrified by the 2003 kidnapping and murder of student Dru Sjodin and the subsequent arrest of a just-released repeat sex offender for the crime. When constituents get riled about a particular crime, lawmakers scramble to toughen penalties.

It's a natural impulse, and this session has given rise to at least two proposals for cracking down on sex offenders: Gov. Tim Pawlenty's plan to require "indeterminate" prison terms for all sex offenders and a bid by the state's Sentencing Guidelines Commission to stretch sentences for all sex crimes and reserve indefinite terms only for serious repeaters. Both plans call for a parole board to decide whether and when inmates can be released.

Reviving the parole board is indeed appealing -- so long as it's empowered to consider all inmates' fates. The move would likely be unnecessary if the Sentencing Guidelines Commission, which replaced the board in 1982, were left alone to fulfill its term-setting charge. But the legislative habit of tinkering with sentence lengths has hobbled the commission's ability to assure a fair system of punishment -- thereby raising doubts about whether all wrongdoers are ending up where they should. In fact, it seems likely that many Minnesotans would agree that too many prison beds are now filled by offenders who could more readily be helped and held to account in some other venue....

Lawmakers should be skeptical of all proposals to revamp Minnesota's approach to managing sex offenders. After all, it could very well be that the current system generally works very well -- so long as people follow the rules. The heartbreak of Sjodin's murder -- a crime for which Alfonso Rodriguez Jr. stands accused -- can't be attributed to a flaw in state law.... This isn't to say that state sex-crime laws couldn't benefit from fine-tuning. But it's simply incorrect to blame Sjodin's death on feeble state statutes. Fault is more properly placed on a moment of misjudgment, most certainly related to cost-saving pressures within state departments. It could be that the smartest thing lawmakers can do this year is to assure that the programs charged with handling sex offenders have everything they need to perform well.

January 6, 2005 in Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Pitched battle over federal sentencing of elderly offender

Today's Knoxville News Sentinel has this remarkable article about a long-running battle over the sentencing of a severely ill 84-year-old federal gun offender.  Here's the lead:

A veteran judge on Wednesday refused to imprison an 84-year-old man, defying federal sentencing guidelines, the Justice Department and an appellate court mandate.

The judge is Senior US District Court Judge James H. Jarvis, and the article reports that Judge Jarvis said he could not, in good conscience, imprison the defendant:

"I think it'd be cruel and inhuman treatment to put this man in the general prison population in the state he's in now," Jarvis said. "We've got to do our best to do justice."  The judge did, however, order Bostic to be under house arrest and electronically monitored for a year.

January 6, 2005 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Interesting state Blakely reports

After a long but enjoyably uneventful trip to attend this conference, I am now on-line and on west coast time.  And, upon checking my e-mail, I was pleased to find two reports about recent state Blakely developments.  I hope the helpful correspondents won't mind me sharing their text verbatim:

In addition, I see on-line that Washington is keeping Blakely busy in the new year with another Blakely reversal: State v. Smith, 2005 Wash. App. LEXIS 16 (Wash. App. Jan. 4, 2005).  (Other 2005 Washington rulings are detailed here.)  Smith is notable because it generates a dissent over Blakely's applicability in a sex offender case involving a unique provision of Washington's sentencing law.

January 6, 2005 in Blakely in the States | Permalink | Comments (1) | TrackBack

January 5, 2005

Holiday season highlights

I am off to the big law professors' conference in San Francisco (details here) this afternoon, which likely means no more blogging today and light blogging until next week.  For anyone interested in using this break to catch up on notable sentencing developments from the holiday season, here's a list of some major posts of note from the last two weeks:

Federal Blakely issues

State Blakely issues

Death Penalty

Clemency and Pardons

Also, for anyone interested in (yet again) gearing up for a possible decision in Booker and Fanfan next week, here are some of my prior "pre-decision" posts:

And, lots of additional posts of note and other background materials on Blakely and Booker and Fanfan can also be found on my Blakely Basics page.

January 5, 2005 | Permalink | Comments (1) | TrackBack

January 4, 2005

State Blakely cases ring in the new year

I joked here that I was waiting to see which court would be the first to issue a noteworthy Blakely ruling in 2005.  Perhaps fittingly, the honor goes to the Washington state courts, which already has two new year Blakely rulings on-line: State v. Fero, 2005 WL 15171 (Wash. App. Div. 2, Jan. 04, 2005) and State v. Cartwright, 2005 WL 12021 (Wash. App. Div. 1, Jan 03, 2005).  And, for those scoring at home, we also have on-line Blakely decisions from California and New Jersey this new year.  See People v. Standifer, 2005 WL 15449 (Cal. App. 2 Dist. Jan. 04, 2005); State v. Vasquez, 2005 N.J. Super. LEXIS 4 (NJ App. Div. Jan. 4, 2005).

The Fero case is the most notable of the bunch because it (1) reverses a sentence based on Blakely, (2) concludes that "the plain line of Apprendi, Neder, and Blakely, [establish that a Blakely violation] is a structural error and harmless error cannot apply," but (3) decides that the trial court may on remand "empanel a jury to consider aggravating factors without violating double jeopardy or the separation of powers."  On the second point, one judge weighs in with a thoughtful "dissent from that portion of the opinion holding that Blakely violations are structural errors requiring automatic reversal."

Significantly, as detailed here, an Illinois appellate court has also concluded that a Blakely error ought now to be viewed as structural error and not allow for harmless error analysis, although that court felt bound to conduct harmless error analysis because of rulings of its state Supreme Court.  It is thus increasingly evident that the nature of Blakely error is another tough doctrinal issue that SCOTUS might need to resolve in the near future.

January 4, 2005 in Blakely in the States | Permalink | Comments (2) | TrackBack

Gearing up for the Gonzales hearing

AG nominee Alberto Gonzales' role in the "torture memos" is the top story going into his confirmation hearings this week (as detailed in this law.com article and How Appealing's collection here).  But Gonzales' memos advising then-Texas Governor George Bush on clemency decision-making in the late 1990s are also garnering some attention and criticism.  Today, the People For the American Way issued this lengthy statement opposing the confirmation of Alberto Gonzales in which one extended section assails his "Irresponsible Death Penalty Review."

Here are some prior posts relating to Gonzales' clemency work since he was nominated for AG:

January 4, 2005 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Justice Breyer on the Blakely front lines (sort of)

With thanks to How Appealing for the tip, I found this AP article reporting on Justice Breyer's recent experience in Massachusetts state court with jury duty amusing.  Though Justice Breyer apparently did not get seated on a jury, he was quoted as saying: "It proves that everyone can participate, and in a democracy that is important."  Given Professor Bill Stuntz's interesting suggestion that the Blakely decision seems to be trying to make the criminal justice system more democratic (discussed here), perhaps this quote is a sign that Justice Breyer is now on the Blakely bandwagon.

January 4, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (0) | TrackBack

(Copious) capital commentary

Thanks to the Death Penalty Information Center, I see that I will never be able to catch up on all my death penalty reading.  DPIC has notices of two new and notable resources commenting on the death penalty.  Here's their descriptions and links to access the materials:

Based on the abstracts, all the articles in Psychology, Public Policy, & Law look quite interesting.  Also, recall that, as detailed here, the Fall 2004 issue of the Ohio State Journal of Criminal Law also has symposium devoted to "Capital Juries" and it is fully available on-line here.  (You can also browse on-line prior and future forthcoming OSJCL issues here.)

January 4, 2005 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Could Booker/Fanfan impact the Chief Justice sweepstakes?

The blogsphere continues to buzz about possible replacements for Chief Justice Rehnquist, and of late the talk has been a lot about Justice Thomas.  Some of the interesting posts are collected  at SCOTUSblog here and this week's Legal Affairs Debate Club asks "Should Clarence Thomas be Chief Justice?"

Of course, consistent with my "Blakely gets no respect" commentary (details here and here), none of this talk notes Justice Thomas' interesting role and opinions in the Blakely line of precedents.  Justice Thomas became the key fifth vote in Apprendi (after a contrary vote two years earlier in Almendarez-Torres), and his opinions in both Apprendi and for the dissenters in Harris are remarkable in many ways.  If, as some have speculated, Justice Thomas is writing the opinion in Booker and Fanfan to strike down the federal sentencing guidelines, it is fun to speculate how such a headline-making ruling might impact the public and political dialogues about the next Chief.

January 4, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (1) | TrackBack