March 12, 2005
Sentenced for three uncharged murders
In his opinion for the majority in Blakely, Justice Scalia assailed the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge." The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it — or of making an illegal lane change while fleeing the death scene."
Though this expressed concern about punishing for an uncharged murder might seem like just Scalia rhetoric, I discussed in this post last year the case of US v. Vernier, 2004 WL 2110413 (S.D. Fla. Sept. 17, 2004), in which a defendant in federal court was sentenced for a uncharged murder. And today I came across this news report of a federal sentencing in which the defendant pled guilty to drug and firearm charges, but received a life sentence after the judge at sentencing found that there was clear and convincing evidence that the defendant was involved in three related killings.
Of course, had the remedy proposed by Justices Scalia and Stevens carried the day in Booker, the imposition of a longer term based on uncharged conduct would no longer be permitted in the federal system. But, because Justice Breyer's remedy prevailed in Booker, increasing a sentence based on such uncharged conduct is still permissible (though, now under advisory guidelines, no longer required).
March 11, 2005
Ninth Circuit's Ameline goes en banc!
As Howard Bashman reports here, the Ninth Circuit today granted rehearing en banc in Ameline, the case in which the circuit had established a broad plain error standard for Booker cases (detailed here). The Ninth Circuit's order, which serves to vacate the panel's ruling, is available here, and all the paper related to the case can be accessed here.
With this development, combined with the Fourth Circuit's intriguing rehearing decision in Hughes, leaves only the Third and Sixth Circuits applying the broad "presumption of prejudice" plain error standard (discussed more fully here).
On the road again
I am off to the airport yet again this afternoon, though this time the travel is for fantasy baseball and not work purposes. (Sleeper recommendations in the comments are always appreciated.) As is becoming a custom (as established here and here and here and here and here and here), I leave below some thematically organized and linked recent posts:
SHEPARD DECISION AND COMMENTARY
- Summarizing Shepard (and seeking state insights)
- Pondering some post-Shepard questions
- What is the scope of the prior conviction exception post-Shepard?
- Criminal history disputes and Shepard issues
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- The Indiana Supreme Court speaks on Blakely!
- More reasons Smylie made me smile
- Smylie does not make everyone smile
- In epic showdown, Blakely trumps Harris in Minnesota
- If you’re gonna do it, do it right — right?
BOOKER CIRCUIT COURT DEVELOPMENTS
- Three-ring circus ... err, three-way circuit split
- The plain error madness continues in the 4th Circuit
- Tenth Circuit addresses Blakely retroactivity
- DC Circuit joins the Booker world
- Lots more Booker action in the Sixth Circuit
OTHER BOOKER DEVELOPMENTS AND COMMENTARY
- Latest compilation of post-Booker decisions
- Booker meets Roper and the rehabilitation of rehabilitation
- When will we see more post-Booker data?
- Ask and ye shall receive ... Booker data
- Handling Blakely/Booker habeas headaches
- Booker events not to be missed
Smylie does not make everyone smile
As I noted in this post, there is a lot to say about the Blakely work by Indiana Supreme Court in its noteworthy Smylie decision from earlier this week (basics here). Helpfully, Michael Ausbrook at INCourts has this terrific post on the Smylie decision, which covers a lot of important jurisprudential issues and is none too kind to the work of the Indiana Supreme Court.
For folks interested in Blakely state issues, Michael's post criticizing Smylie is a must-read, although I think his negativity about Smylie may reflect his (unreasonably?) high expectations for the work of a state court trying to sort through jurisprudential mess that lies in Blakely's and Booker's wake. (Among Michael's many astute comments is to attribute Smylie to part of "the damage the remedial opinion in Booker has done.")
Booker events not to be missed
As detailed last month in this post, there are no shortage of exciting events to enhance your Booker knowledge. But, as you update your Booker calenders, I want to spotlight two particular coming attractions.
First, next Tuesday, March 15, ALI-ABA has arranged for this webcast/video-conference on "Federal Sentencing Guidelines after Booker and Fanfan." I am very pleased to be participating in this event, along with not only Professors Nancy King and Stephen Saltzburg, but also key "insiders" such as US District Judge Paul Friedman, who is a member of the Advisory Committee on the Federal Rules of Civil Procedure, Michael O'Neill, former USSC Commissioner and now Chief Counsel to the Senate Judiciary Committee, and Deborah Rhodes, who serves as Justice Department's ex-officio member on the USSC. I have already learned a lot from this group just by participating in the event's planning, and the technology facilitates participation no matter where one is located.
Second, in San Francisco on May 25-28, 2005, the mother of all Booker gatherings will take place as part of the 14th Annual National Seminar on the Federal Sentencing Guidelines, which is a joint project of the Federal Bar Association and the US Sentencing Commission. As detailed in the brochure which can be downloaded below, nearly every big name in the Booker world will be participating in this program. I am heartbroken I have to miss this Booker event not to be missed because of a prior commitment (and my family might break me in other ways if I tried to change plans).
Daily dose of Booker in the Sixth Circuit
Continuing to clear its docket, the Sixth Circuit keeps up the pace with Booker rulings through two (unpublished) decisions released today: US v. Story, No. 03-6260 (6th Cir. Mar. 9, 2005) (available here) and US v. Ryan, No. 04-5401 (6th Cir. Mar. 10, 2005) (available here). Both cases involve plain-error remands. Neither seems to break new ground, but they reinforce the reality, noted here yesterday, that the treatment of plain error issues has settled down in the Sixth Circuit (in contrast to the madness which, as detailed here, now rages in the in the Fourth Circuit).
UPDATE: Appellate Law & Practice has some additional coverage here.
In epic showdown, Blakely trumps Harris in Minnesota
Though not quite having the cinematic quality of, say, Godzilla versus Megalon, in the recent Minnesota case of State v. Barker, No. A04-1453 (Minn. App. Mar. 8, 2005) (available here), the state Court of Appeals held that, despite the fact that Harris v. US allows for judicial fact-finding in support of mandatory minimums, where the mandatory minimum sentence is greater than the presumptive guideline sentence, imposition of the higher "mandatory minimum sentence" sentence violates Blakely when based on facts not found by a jury. In other words, Blakely trumps Harris when they are in tension:
Because the statute creates a mandatory-minimum sentence that replaces the ordinary presumptive sentence, Blakely v. Washington, 124 S. Ct. 2531 (2004) requires that the finding be made by a jury if the mandatory-minimum sentence exceeds the ordinary guidelines presumptive sentence.... [In this case] the mandatory-minimum statute functions the same as an aggravating factor by increasing what otherwise would be the presumptive sentence. Because it functions in the same way, we conclude, it should be treated the same as an upward departure from the presumptive sentence for purposes of Blakely.
March 10, 2005
Criminal history disputes and Shepard issues
I believe the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here), and the possible demise of the Almendarez-Torres prior conviction exception, could prove so consequential not only because many states have sentence enhancers based on criminal history, but also because the facts surrounding a defendant's criminal are uncertain and subject to dispute more often than we might suppose.
The letter brief from the NJ Blakely litigation posted here provides some flavor of these issues, but another great example comes from a brief sent to me by North Carolina attorney Bruce Cunningham. This brief, which I have been authorized to post and is available for downloading below, spotlights in various ways a range of the disputable issues that surround criminal history which may now bw subject to Shepard challenges.
March 10, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Lots more Booker action in the Sixth Circuit
I joked in my earlier review of yesterday's circuit court work that the Sixth Circuit was surprisingly Booker quiet yesterday. I see now from posts at Appellate Law & Practice that the Sixth Circuit is back at it today with a set of notable Booker rulings. For now I can only give the highlights, since I am busy with the great conference here at OSU on "The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law" co-sponspored by my own Ohio State Journal of Criminal Law.
- In US v. Bradley, No. 03-6328 (6th Cir. Mar. 10, 2005) (available here, summary from AL&P here), the court appears to uphold a pre-Blakely appeal waiver. I have previously pondered the fate and future of appeal waivers after Booker in this post.
- In Ballard v. US, No. 03-5117 (6th Cir. Mar. 10, 2005) (available here, summary from AL&P here), the court appears to sustain a defendant's ineefective assistance claim based on counsel's failure to raise an Apprendi issue.
- In US v. Barnett, No. 03-6328 (6th Cir. Mar. 10, 2005) (available here, summary from AL&P here), the court denies the government's rehearing petition in the Circuit's leading plain-error case (Barnett background is here.) Thus, while the plain error madness rages on the in the Fourth Circuit (details here), it would now appear to be settled in the Sixth.
More on Medellin issues
In this post I spotlighted dynamic developments surrounding the the Supreme Court's consideration in Medellin v. Dretke of the right of foreign nationals on death row to meet with a consular officer from their home country. Adding timely intrigue to these matters, a reader has alerted me that this morning the Oregon Supreme Court issued an opinion in State v. Sanchez-Llamas, No. S51289 (Ore. Mar. 10, 2005) (available here), which plows related ground.
In Sanchez-Llamas, the Oregon Supreme Court rejects the a claim to suppress evidence based on a violation of the "right to consular notification and communication, as guaranteed by Article 36 of the Vienna Convention on Consular Relations (VCCR)," by holding that "Article 36 of the VCCR does not create rights that individual foreign nationals may assert in a criminal proceeding." Here is the Court's interesting final footnote:
Our legal conclusion in this case is consonant with every other state and federal case of which we are aware that has addressed the issue. [citations omitted.] We also note that the Supreme Court of the United States on December 10, 2004, granted certiorari in Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004). That case, which is set for argument on March 28, 2005, involves certain of the issues that we decide today.
More reasons Smylie made me smile
There is a lot to say about yesterday's Blakely work by Indiana Supreme Court in its Smylie decision (basics here). Thanks to The Indiana Law Blog's coverage here, I can link to press stories about Smylie from the Indianapolis Star and the AP. In addition, Michael Ausbrook at INCourts has interesting posts covering Smylie here and here .
Though Smylie is of particular concern for Indiana lawyers, this comment spotlights that it could be a very significant precedent for other state courts working through a range of Blakely issues. Though I will need subsequent posts to discuss the intriguing jurisprudential aspects of Smylie, I wanted first to spotlight the two amusingly snarky comments in the Smylie court's discussion of the Supreme Court's work in Blakely:
1. Early on in describing Blakely, the Smylie court states: "While many who read Apprendi deduced that 'statutory maximum' meant 'statutory maximum,' the Blakely majority chose to define it as 'the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.'"
2. After fully explaining Blakely, the Smylie court states: "Whether [Blakely] represents sound jurisprudence or policy is of no moment for us under the Supremacy Clause, and we cannot see any grounds for sustaining Indiana's sentencing scheme given the Blakely holding."
A morning shot of Booker circuit action
Even though yesterday was — gasp — a day without a Sixth Circuit Booker ruling, we did have the big, crazy Fourth Circuit plain-error news and also another group of Booker circuit decisions. As suggested in yesterday's review here of circuit cases from earlier this week, it is becoming ever more difficult to keep up with all the circuit Booker action. Here is a very quick review of yesterday's notable rulings:
The Third Circuit in US v. Benjamin, 2005 WL 546647 (3d Cir. Mar. 09, 2005), and US v. Pinkston, 2005 WL 546648 (3d Cir. Mar. 09, 2005), continued its practice of sending all Booker issues back to the district court. In Benjamin, though, the Third Circuit did affirm a restitution order that seems to rest on judicial fact-finding without any consideration of Blakely issues that might be implicated.
The Seventh Circuit, and particularly Judge Easterbrook, used the rejection of a habeas claim in Knox v. US, 2005 WL 545269 (7th Cir. Mar. 09, 2005), to discuss a number of the Supreme Court's recent sentencing precedents. Along the way, the Knox court makes the seemingly significant assertion, citing Supreme Court precedents, that "judicial resolution of a factual dispute that should have been presented to a jury is not a 'structural error' that requires automatic reversal."
The Eighth Circuit was able to affirmed two sentences: in US v. Sayre, 2005 WL 544819 (8th Cir. Mar. 09, 2005), the court ducked the plain-error/harmless-error debate by concluding that, whatever the review standard, "the result is the same for Sayre ... [because] while the district court followed a sentencing scheme that is no longer mandatory, doing so did not affect Sayre's ultimate sentence in this case"; In US v. Quinn, 2005 U.S. App. LEXIS 3903 (8th Cir. Mar. 09, 2005), the court affirmed a 10-year mandatory sentence based on a prior conviction (notably, without mentioning Shepard).
The meddling resulting from Medellin
As discussed here a few months ago, the Supreme Court's decision to take on the case of Medellin v. Dretke, which concerns the right of foreign nationals on death row in the US to meet with a consular officer from their home country, seemed like an important development in the intersection of international law and the death penalty. (See this old background piece by Tony Mauro.) And, as is being extremely well documented by SCOTUSblog, the ripple effect of just the Supreme Court's decision to take this case is remarkable.
Because I have enough trouble keeping tract of domestic law, I will just urge readers interested in this subject to jump to the great Medellin coverage to be found at the SCOTUSblog here and here and here and here. In addition, How Appealing has some of yesterday's coverage of developments here, and this New York Times article provides the latest news.
March 9, 2005
The Indiana Supreme Court speaks on Blakely!
In what appears to be the most comprehensive state supreme court decision to date (and the first major post-Booker state supreme court ruling), the Indiana Supreme Court today has ruled on Blakely's applicability to Indiana's sentencing structure in Smylie v. Indiana, No. 41 SO 1-0409-CR-408 (Ind. Mar. 9, 2005) (available here courtesy of The Indiana Law Blog, which already has highlights here).
Smylie appears to be, from a quick skim, a very thorough and thoughtful decision (and I was very pleased and flattered to see this blog getting a "shout out" in footnote 12 of the Court's opinion, although The Indiana Law Blog notes here that I am slightly mis-cited). The Indiana Supreme Court in Smylie has held Blakely applicable to Indiana's laws and has concluded that Blakely-ization (and not Booker-ization) is the appropriate remedy — i.e., the Court rejects the suggestion to make its statutory sentencing structure advisory and instead calls for jury determinations of sentence enhancing facts.
The Smylie decision also covers some retroactivity issues and is certainly today's must-read for Blakely addicts. I am already looking forward to Marci Oddi's commentary at The Indiana Law Blog and also Michale Ausbrook's at INCourts.
The plain error madness continues in the 4th Circuit
As detailed in this brief order, the panel of the Fourth Circuit that issued its broad plain error ruling in Hughes (background here) has granted the government's petition to rehear the case. That would suggest, I think, that the Fourth Circuit's placement in the remarkable three-way circuit split on plain error (detailed here) is now back in play. Here is the full text of the (unusual?) order:
Panel rehearing of this case is granted at the direction of the Court. Entered for a panel composed of Chief Judge Wilkins, Judge Traxler, and Judge Gregory.
Ironically, when I first went to the Fourth Circuit's website to look for more information, I found an unpublished disposition in US v. Calloway, No. 03-4906 (4th Cir. Mar. 8, 2005) (available here), which vacates two defendants' sentences and remands "for proceedings consistent with Hughes." A quick Westlaw search indicated that perhaps more than 10 cases have been remanded on the basis of Hughes. I'm not sure what "panel rehearing" might mean for these cases or others in the Fourth Circuit pipeline, although I have been told that "the Fourth Circuit's rules (Internal Operating Procedure 40.2) state that if a panel rehearing is granted, the original judgment is vacated and the case will be reheard by the original panel."
In addition, and adding to what is becoming an almost comical story, now also appearing on the Fourth Circuit's website is US v. Gilchrist, No. 03-4379 (4th Cir. Mar. 8, 2005) (available here), where the Fourth Circuit responds to a defendant's petition for rehearing by stating "the panel is of the opinion that Gilchrist's sentences must be vacated and the case remanded for resentencing in light of United States v. Booker, 125 S. Ct. 738 (2005), which was decided after the panel opinion issued in this case." Then, in a 12-page concurrence(?!?), Judge Luttig explains in detailed terms why he believes "that our decision in United States v. Hughes was fundamentally flawed."
Anyone with additional information or insights about these notable Fourth Circuit developments (or about the still pending rehearing petition in the Ameline case from the Ninth Circuit) are encouraged to report in the comments or via e-mail what they know.
Ask and ye shall receive ... Booker data
In this post yesterday, I noted my eagerness for post-Booker data. Thanks to the kind folks at the US Sentencing Commission, I now have (and can share for downloading below) the USSC's "last complete data cut" which was prepared on February 28 and reflects all post-Booker cases received by the USSC as of February 17. (These materials are also now posted on the USSC's Booker/Fanfan page.)
These data reports cover 2,056 total cases, though in the USSC's analysis 70 cases had to be excluded due to incomplete or missing information. Thus, for the five weeks post-Booker, we have nearly 2000 cases to chew on (which is, of course, only one-third of what would have moved through the system if it were operating at a pre-Booker pace of 1,200 cases/week). The data is fascinating and the memos below are so clear (and brief) that I will let them speak for themselves. Importantly, USSC folks indicated that the "next data cut" will be likely taken around the end of this month.
Booker meets Roper and the rehabilitation of rehabilitation
The fascinating Booker work being done in the district courts merits as much attention as the Supreme Court's work in Shepard (basics summarized here, commentary here and here) and the steady stream of circuit dispositions (discussed and linked here). I see on-line this morning two remarkable district court rulings, each of which provides intriguing justifications for refusing to follow the federal guidelines' severe career offender enhancements.
In US v. Naylor, 2005 WL 525409 (W.D. Va. Mar. 07, 2005) (also available here), Chief US District Judge James Jones discusses and quotes from the Supreme Court's recent Roper decision to discount the defendant's prior convictions for robberies committed as a juvenile. In a thoughtful ruling (which echoes points I made here about Roper's possible impact on non-capital sentencing), Judge Jones carefully explains in Naylor why only legal technicalities suggest the application of the career offender enhancements and thus "a reasonable sentence for Naylor is 120 months imprisonment, within the sentencing range had he not been determined to be a career offender."
In US v. Carvajal, 2005 WL 476125 (S.D.N.Y. Feb. 22, 2005), Judge Alvin K. Hellerstein explains, when imposing a 14-year sentence, his rationale for "departures from the strictures of Career Offender punishments that I considered not entirely applicable to Carvajal's offenses and criminal history." Judge Hellerstein carefully explains that career offender enhancements would raise the defendant's sentence from a range of 63 to 78 months to a range of 262 to 327 months. He then decides that neither range is appropriate in light of 3553(a) and Booker's instructions:
In my opinion, a 168 month (14-year) term of custodial punishment of 168 month would be just punishment. Joseph Carvajal is 34 years old, and will be 48 years old when he emerges from prison (or 15% less if he wins reductions for good behavior).
Rehabilitation is also a goal of punishment. 18 U.S.C. § 3553(a)(2)(D). That goal cannot be served if a defendant can look forward to nothing beyond imprisonment. Hope is the necessary condition of mankind, for we are all created in the image of God. A judge should be hesitant before sentencing so severely that he destroys all hope and takes away all possibility of useful life. Punishment should not be more severe than that necessary to satisfy the goals of punishment.
DC Circuit joins the Booker world
Issuing its very first Booker opinion, the DC Circuit yesterday in US v. Coumaris, No. 03-3024 (D.C. Cir. Mar. 08, 2005) (available here), did not have to struggle much because the government itself "moved to vacate Coumaris' sentence and to remand for resentencing." In Coumaris, the government conceded that the defendant had preserved the Sixth Amendment issue through objections to his PSR. The DC Circuit then explains:
This means that the Booker challenge here is governed by the harmless error standard appropriate for constitutional error, which the Government states it cannot satisfy. That is, the government concedes that it cannot demonstrate "beyond a reasonable doubt that the error complained of did not contribute to the [sentence] obtained."
The government's harmless error concession seems notable, since the defendant's 48-month sentence presumably was not at the bottom of a guideline range.
Interestingly, the Coumaris court expressly rejects the defendant's request to "resolve his specific challenges to the district court's application of the Guidelines before remanding." The DC Circuit asserts, that because "the district court might impose a different sentence on remand, and because the parties might choose not to appeal that sentence," addressing now "objections to the court's original guidelines calculations would be premature at best and unnecessary at worst." However, as I discussed here in connection with the Sixth Circuit's ruling in Hamm, this dodge may make life harder for the district court at resentencing: the sentencing judge is left uncertain about whether it has calculated the applicable guideline range properly, and thus the judge cannot be fully confident concerning post-Booker efforts to "consider" the guidelines.
Tenth Circuit addresses Blakely retroactivity
Standing out among other circuit dispositions this week is the Tenth Circuit's discussion of Blakely's retroactivity in US v. Price, 2005 WL 535361 (10th Cir. Mar 08, 2005). The petitioner in Price had failed on his habeas claim in the wake of Blakely, but he sought rehearing after Booker, and the Tenth Circuit denies the rehearing petition with an opinion that provides an extended explanation for why "Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004."
The Tenth Circuit thus becomes, I believe, the third circuit to address directly Blakely/Booker retroactivity after Booker, joining the Seventh Circuit in McReynolds and the Sixth Circuit in Humphress. Unlike the plain-error splits for cases still on direct appeal, the circuits have been uniform to date in rejecting Blakely/Booker challenges in cases that have become final.
UPDATE: As Adam kindly notes in the comments to this post and as another fine reader has brought to my attention, I keep forgetting that the Eleventh Circuit in Varela has also ruled that that Blakely and Booker are not retroactively applicable to cases on collateral review. So, we have four circuits that have officially spoken on this issue — the 6th, 7th, 10th and 11th — and I suspect that it is only a matter of time before the other eight follow suit.
Circuits keeping Booker busy
With my sentencing focus having been Shepard-ized this week (Shepard basics are summarized here, commentary here and here), I have gotten a bit behind tracking Booker action in the circuits. But a quick check on-line reveals that the circuits have already rendered nearly a dozen Booker rulings this week.
The only especially noteworthy rulings result from the DC Circuit's first foray into the Booker world (discussed here) and the Tenth Circuit's discussion of retroactivity (discussed here), which are cover in other posts. Here is a quick run-down of what's come this week from other circuits (in addition to the Sixth Circuit's ruling in Hamm discussed here):
The Third Circuit through US v. Kleinpaste, 2005 WL 524949 (3d Cir. Mar. 07, 2005), continues its trend of kicking all Booker issues back to the district courts, stating simply "the sentencing issues appellant raises are best determined by the district court in the first instance."
The Fourth Circuit maintains its fidelity to its Hughes approach to plain error by remanding for resentencing in US v. Johnson, 2005 WL 526889 (4th Cir. Mar. 08, 2005). However, in US v. Pierce, 2005 WL 523364 (4th Cir. Mar. 07, 2005), the court affirms a sentence because the defendant only challenged its computation and not its constitutionality, which prompts Judge Gregory in dissent to assert that the court should "sua sponte recognize the plain Booker error in this case."
The Eighth Circuit in two cases, US v. Edwards, 2005 WL 517019 (8th Cir. Mar. 07, 2005) and US v. Cotton, 2005 WL 525226 (8th Cir. Mar. 08, 2005), affirmed sentences involving the revocation of supervised release, and stated in Edwards that Booker's "effect on sentences imposed for supervised release violations is far less dramatic" than its impact on standard guideline sentencing.
The Ninth Circuit in US v. Luna, 2005 WL 518721 (9th Cir. Mar. 07, 2005), determined that the district court properly calculated the defendant's guideline sentence, but still remanded "for discretionary reconsideration of the sentence in light of Booker and Ameline."
March 8, 2005
What is the scope of the prior conviction exception post-Shepard?
In this post pondering the state of sentencing following the Supreme Court's work in Shepard (summary here), I wondered whether state supreme courts considering Blakely cases will start to get Shepard-focused supplemental briefs. This question was answered quickly, as today I received from attorney Steve Sanders — who has been involved in New Jersey's Blakely cases as an amicus for the Association of Criminal Defense Lawyers of New Jersey — a copy of a letter brief filled today in the Supreme Court of New Jersey highlighting the significance of Shepard in a pending case.
This New Jersey Shepard letter brief can be downloaded below, and it emphasizes the oblique statement from Justice Souter's opinion in Shepard concerning the scope of the Almendarez-Torres "prior conviction exception." Recall this passage from Shepard (previously discussed here):
While the disputed fact [in Shepard's case] can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.
I have been struggling with exactly what this means for lower courts now considering the scope of the Almendarez-Torres prior conviction exception. I think Shepard stands for the proposition that the exception is relatively narrow (i.e., the exception does not extend to facts "too far removed from the conclusive significance of a prior judicial record"). And yet, I also read this passage to imply that the Almendarez-Torres prior coviction exception may cover more than just the bare fact of a prior conviction (i.e., the exception perhaps does extend to facts which are very close to "the conclusive significance of a prior judicial record").
I believe a number of states have sentence enhancers that turn on whether an offender was on parole at the time of his offense or on whether the defendant previously served a prison term. Are such facts close enough to "the conclusive significance of a prior judicial record" to fall within the Almendarez-Torres prior conviction exception or are they "too far removed" and "too much like the findings subject to Jones and Apprendi"? I guess only future Supreme Court decisions will tell.
March 8, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
More for your reading pleasure (Booker and Booker-free)
The kind folks at TalkLeft here suggest I am a source for "Blakely and Booker Articles and Advice." Hoping to earn (and perhaps broaden) that reference, I have two more articles to spotlight today. (Articles spotlighted previously in recent days are here and here.) The first is "all about Booker" and provides a practitioner-friendly review of the decision and subsequent caselaw, the other concerns collateral consequences and provides an astute academic perspective on a very important, but largely under-examined, criminal justice issue.
- The practitioner-oriented Booker piece is called "All about Booker" and comes courtesy of experienced practitioners Alan Ellis and James H. Feldman, Jr. It covers both basic and advanced Booker ground and seems current through last week's major developments in the Booker caselaw. Download it here: Download ellis_and_feldman_all_about_booker.pdf
- The academic piece is entitled "Enforcing State Law in Congress's Shadow" and comes from Professor Robert Mikos. An abstract and the full paper can be accessed here. As the abstract explains, the article examines "congressional statutes that impose federal sanctions on individuals convicted of state crimes" and suggests these sanctions "may profoundly influence state criminal proceedings."
March 8, 2005 in Booker and Fanfan Commentary, Criminal Sentences Alternatives, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack
When will we see more post-Booker data?
A few weeks ago, I was already eager for more post-Booker data. And now, as we approach the two month anniversary of Booker, my eagerness is evolving into (perhaps unhealthy and unjustified?) impatience. Were the federal sentencing system operating under "normal" conditions, roughly 10,000 sentences would have been imposed in the two months since Booker. And thus, even if the system post-Booker is operating only at half its normal speed, we still should have a universe of 5000+ cases (and at least a couple hundred in each circuit) from which to start drawing some preliminary insights.
Moreover, is seems plausible that the federal sentencing system might be back to operating at its "normal" 1,200 sentencing per week clip. Though the plain-error mess continues to produce interesting circuit case law, I surmise that the district courts are settling into the post-Booker world. (It is worth recalling here that, as the US Sentencing Commission detailed in a "Preliminary Comparison of Case Submissions in July and August 2003 and 2004" available here, the federal courts still imposed over 10,000 sentences in the confusing two months after Blakely.)
As noted before, this USSC webpage indicated that the USSC has a public hearing scheduled for April 12, which is (coincidentally?) the exact three-month anniversary of Booker. I think we could expect more data from the USSC in conjunction with that hearing, but I sincerely hope we get at least of glimpse of the developing sentencing patterns before that time.
If you’re gonna do it, do it right — right?
I jokingly call Blakely the case that launched a thousand law review articles, and I have a new one to spotlight (on the heels of the numerous articles noted here). J.J. Prescott and Sonja Starr have an interesting piece entitled "Improving Criminal Jury Decision-Making After the Blakely Revolution," which to proposes a model for sentencing-stage jury proceedings that would foster improved decision-making by juries. An abstract and the full paper can be accessed here.
As detailed in their abstract, Prescott and Starr suggest that effective jury decision-making post-Blakely calls for "bifurcation of proceedings, partial application of the rules of evidence, formulation of special verdict forms in certain specific ways that will minimize framing effects, structural simplification of sentencing tasks, a more active jury, and guidance for jurors on bias-reducing deliberation structures." The issues and concerns spotlighted in this paper will become even more pressing if, as Shepard hints (summary here, questions here), juries may some day have to consider prior conviction facts as well as offense facts that can enhance sentences.
In the immortal words of Wham!, "If you're gonna do it, do it right — right?"
Back to the Sixth Circuit Booker beat
I have a lot more to say about the Supreme Court's work in Shepard (summary here, questions here), but the Sixth Circuit, as it seemingly does every day, gives us reason to return to the Booker beat. Today's entry is US v. Hamm, No. 03-5658 (6th Cir. Mar. 8, 2005) (available here), which does not break any new ground, but covers the Circuit's now established plain-error ground fairly thoroughly. (A full review on the three-way plain-error circuit split is provided here.)
Hamm is notable in part because we see the Sixth Circuit remanding for resentencing despite the absence of a Sixth Amendment problem in the case or any preserved objection on Apprendi-Blakely-Booker grounds. It is also notable because the Sixth Circuit ducks a seemingly important issue concerning whether ex post facto principles preclude the application of the PROTECT Act's limits on downward departures in a sentencing for pre-PROTECT Act criminal conduct. The Hamm court asserts: "We need not address the merits of Hamm's [ex post facto] arguments, however, because we conclude that the sentence imposed by the district court is invalid in light of Booker."
In one sense, the Hamm court is being prudential: if Booker requires resentencing anyway, the court can (and perhaps should) avoid adjudicating the constitutional issue raised by Hamm's ex post facto argument. But, in another sense, the Hamm court is making life harder for the district court: the sentencing judge is left uncertain about whether ex post facto considerations might impact how it can and should calculate the applicable guideline range (including departure considerations), and thus the judge cannot be fully confident concerning post-Booker efforts to "consider" the guidelines.
Pondering some post-Shepard questions
I continue to ruminate over the Supreme Court's opaque work in Shepard and its tantalizing hints that the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule may be eliminated in some future case (the Shepard basics are summarized in this post). Here are just a few questions jumping to mind:
1. A number of state supreme courts considering Blakely cases received or asked for supplemental briefs in the wake of Booker. Will there now also be Shepard-focused supplemental briefs? (Consider this comment about the impact of Shepard on New Jersey's Blakely litigation.)
2. Might state and federal prosecutors, fearing the eventual demise of the Almendarez-Torres "prior conviction exception," start regularly including prior conviction facts in at least some indictments? Put another way, might some indictments now get "Shepard-ized"? (True law geeks like me should enjoy that pun.)
3. How long will it take for the Supreme Court to grant cert. (and then decided) what Justice Thomas calls "Almendarez-Torres' continuing viability"? Since Blakely, as I explained here, this issue has been of critical importance, but I now fear we may have to wait another year or longer before we get a resolution.
4. Will Justice Thomas' statement that "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided" and his lament that "[i]nnumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres" have any traction in lower courts? Might a state Supreme Court consider using state constitutional law to eliminate the exception rather than await the work of a fickle US Supreme Court.
March 8, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
March 7, 2005
Helpful accounts of Shepard
I have tried my best to summarize the impact of the Supreme Court's opaque work today in Shepard v. US in this post. Helping to add light are astute accounts of Shepard here from the AP and here from the Second Circuit Blog. (UPDATE: And here are a New York Times account, a Pittsburgh Post-Gazette account and a Wall Street Journal account of Shepard.)
In addition, I think the questons posed here by my colleague Alan Michaels help spotlight the craziness that is Shepard. (And, in a future post, I hope to set forth a set of post-Shepard questions rattling in my brain this evening.)
March 7, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Today's other SCOTUS sentencing ruling
Because I have been focused on today's SCOTUS GVRs and the Shepard craziness, I have not yet completely taken in the Supreme Court's other notable sentencing decision today. In Wilkinson v. Dotson, No. 03-287 (S. Ct. Mar. 7, 2005) (available here), the Court ruled 8-1 that state prisoners challenging the constitutionality of state parole procedures are not limited to pursuing relief via federal habeas, but may bring a § 1983 action for declaratory and injunctive relief. This AP report provides a few more details.
The intricacies of these issues actually make Apprendi doctrines seem simple, and the ruling makes me wonder whether a number of state defendants might now try to challenge a range of state sentencing procedures via § 1983 actions. Readers are highly encouraged to use the comments to detail whether they think Dotson might bring a new wave of § 1983 litigation.
UPDATE: Mike over at Crime & Federalism has two great posts on Dotson: this one reviews the basics of the case; this one suggests, rightly I believe, that we may see a slew of § 1983 actions challenging parole procedures.
Summarizing Shepard (and seeking state insights)
The Supreme Court's opaque work today in Shepard v. US (basics here) is hard to fully comprehend (consider this comment). Consequently, let me spotlight again the basic summary of the case here from the SCOTUSblog and summarize below my recent Shepard posts:
- The Shepard scramble discusses the Court's opinion and seeks to explain its significance concerning the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule.
- Just when you thought it was safe discusses Justice Thomas' concurrence in Shepard which calls for the elimination of the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule.
- O'Connor's Apprendi laments discusses Justice O'Connor's dissent in in Shepard which complains about the prospect of extending the Apprendi rule "into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed."
I am making such a big deal over Shepard and the possible demise of the Almendarez-Torres "prior conviction exception" in part because many states — including many without guideline structures — have sentencing laws (such as three-strikes laws) that rely on judges finding prior conviction facts. In the wake of Booker and its "advisory dodge," the Almendarez-Torres "prior conviction exception" may seem like a very minor issue for the federal system. But because every state, I believe, has some sort of mandatory recidivist or three-strikes law, the overall impact of the demise of the Almendarez-Torres could be, dare I say, perhaps even greater than Blakely.
Of course, if the Harris mandatory minimum exception to the Jones-Apprendi-Blakely rule remains standing (a big IF), some judicial fact-finding at sentencing will still be permissible even if (when?) the Almendarez-Torres "prior conviction exception" is eliminated. But my own sense of state sentence laws is that the demise of the Almendarez-Torres could be hugely important. But I may lack any real perspective, and thus I would be grateful if those folks most familiar with state sentencing systems might use the comments to explain the possible impact if the Almendarez-Torres "prior conviction exception" was formally eliminated.
UPDATE: Jonathan Soglin at Criminal Appeal here contributes a number of important insights about Shepard and also details its likely immediate impact on People v. McGee, no. S123474, a California Supreme Court case concerning the applications of California's Three Strikes Law.
March 7, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack
O'Connor's Apprendi laments in her Shepard dissent
In trying to make sense of today's Shepard ruling (basics here) for our post-Blakely world, I have covered Justice Thomas's concurrence in this post and Justice Souter opinion for the Court in this post. Now let me complete the series with the work of Justice O'Connor in dissent. Here are her points (with citation mostly omitted) about the now lively debate over the future of the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi rule:
I strongly suspect that the driving force behind today's decision is not Taylor itself, but rather "[d]evelopments in the law since Taylor." Ante, at 9. A majority of the Court defends its rule as necessary to avoid a result that might otherwise be unconstitutional under Apprendi v. New Jersey, 530 U. S. 466 (2000), and related cases. I have criticized that line of cases from the beginning, and I need not repeat my reasoning here. It is a battle I have lost.
But it is one thing for the majority to apply its Apprendi rule within that rule's own bounds, and quite another to extend the rule into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed. Yet today's decision reads Apprendi to cast a shadow possibly implicating recidivism determinations, which until now had been safe from such formalism.
Even in a post-Apprendi world, I cannot understand how today's case raises any reasonable constitutional concern. To the contrary, this case presents especially good reasons for respecting Congress' long "tradition of treating recidivism as a sentencing factor" determined by the judge, Almendarez-Torres v. United States, 523 U. S. 224, 243 (1998), rather than as a substantive offense element determined by the jury....
In short, whatever the merits of the Apprendi doctrine, that doctrine does not currently bear on, and should not be extended to bear on, determinations of a defendant's past crimes, like the ACCA predicates at issue in Shepard's case. The plurality's concern about constitutional doubt, ante, at 10–12, and JUSTICE THOMAS' concern about constitutional error, ante, at 2–3, are therefore misplaced.
March 7, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (3) | TrackBack
The Shepard scramble of the "prior conviction" exception
I have created a new Almendarez-Torres and the prior conviction exception category archive because I fear that the Supreme Court's Shepard ruling today (basics here, first commentary here) will open up a huge new can of litigation worms.
I have detailed in a number of pre-Booker posts the significance the "prior conviction exception," especially for states as they deal with the Blakely fall-out (examples here and here and here, collected here), and both the ruling and the dicta in Shepard make this confusing area of the law even more confusing. Though Shepard is already making my head hurt, I hope to explain the case's importance and why it makes the post-Blakely world, especially for the states, even messier.
First, a great many sentencing determinations depend on judicial findings of prior conviction facts (even in states without guideline systems), and a great many pre-Blakely sentences have been affirmed post-Blakely by relying on the prior conviction exception (see, e.g., the recent Ordaz decision by the Third Circuit). Thus, a great many past, present and future sentences may hinge on the continued validity of the Almendarez-Torres "prior conviction exception."
Second, in addition to the post-Blakely questions about the validity of the "prior conviction exception," there has also been great uncertainty concerning the scope of the exception. Indeed, a number of lower courts have split over (a) whether the exception only applies to the fact of a prior conviction or more broadly to surrounding facts (such as whether an offender was on parole), and (b) whether juvenile convictions (which themselves did not include a jury right) fall within the exception. (See generally this post on an Indiana case dealing with these issues or my recent Conceptualizing Blakely article which talks through some of these issues.)
Third, the Shepard ruling is opaque about both the validity and scope of the Almendarez-Torres "prior conviction exception." As detailed in this post, Justice Thomas, who in 1998 provided the key fifth vote for allowing judicial fact-finding of prior convictions in Almendarez-Torres, is trying to declare the "prior conviction exception" dead for all purposes. But four other Justices — the Almendarez-Torres dissenters, no less — seem to be keeping the "prior conviction exception" on life support for now, but its fate and application seem uncertain at best.
Here are the key passages from Justice Souter's opinion for the Court in Shepard, the first of which seems to concern the scope of the prior conviction exception, the second (from a footnote) concerns its future validity:
[T]he sentencing judge considering the ACCA enhancement would (on the Government's view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence. While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute....
The dissent charges that our decision may portend the extension of Apprendi v. New Jersey, 530 U. S. 466 (2000), to proof of prior convictions, a move which (if it should occur) "surely will do no favors for future defendants in Shepard's shoes." Post, at 11. According to the dissent, the Government, bearing the burden of proving the defendant's prior burglaries to the jury, would then have the right to introduce evidence of those burglaries at trial, and so threaten severe prejudice to the defendant. It is up to the future to show whether the dissent is good prophesy, but the dissent's apprehensiveness can be resolved right now, for if the dissent turns out to be right that Apprendi will reach further, any defendant who feels that the risk of prejudice is too high can waive the right to have a jury decide questions about his prior convictions.
March 7, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (5) | TrackBack
Just when you thought it was safe to go back into the (cert. pool) water
Please excuse the silly Jaws 2 reference, but I am suffering a bit of the shakes after now having had a chance to read the the Supreme Court's opinions in Shepard, all of which can now be accessed at this link. Because the facts and law surrounding the actual holding in Shepard are complicated and opaque, few may instantly realize its block-buster status. But Shepard is huge, because it (1) seems to limit the scope of the Almendarez-Torres "prior conviction exception" to Jones-Appendi, (2) hints that the Alemedarez-Torres "prior conviction exception" will be overruled soon, and yet (3) leaves Almendarez-Torres "prior conviction exception" alive, though now it is bloodied and perhaps gasping its final breath.
I will need future posts to explain why Justice Souter's opinion for the Court so terriby muddies the current status of the Almendarez-Torres "prior conviction exception." For now, let me spotlight that the four Justices speaking for the Court in Shepard, who are keeping the Almendarez-Torres "prior conviction exception" just barely alive, were the four dissenters in the Almendarez-Torres. The key fifth vote upholding judicial factfinding of a prior conviction and thus creating what is now the "prior conviction exception" to Jones-Appendi, back in 1998, was Justice Thomas. Here's what Justice Thomas says today in his Shepard concurrence about the Almendarez-Torres "prior conviction exception":
Almendarez-Torres ... has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. See 523 U. S., at 248–249 (SCALIA, J., joined by STEVENS, SOUTER, and GINSBURG, JJ., dissenting); Apprendi, supra, at 520–521 (THOMAS, J., concurring). The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres' continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental "imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements." Harris v. United States, 536 U. S. 545, 581–582 (2002) (THOMAS, J., dissenting).
March 7, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (10) | TrackBack
SCOTUS rules in Shepard (and muddies the prior conviction waters)
As if the post-Blakely, post-Booker sentencing seas were not choppy enough, today the Supreme Court muddied the waters some more by finally issuing its opinion in Shepard v. United States, No. 03-9168, which concerns a judge's authority to find certain prior conviction facts. Justice Souter opinion for the Court (in part) is available here, the opinion Justice Thomas concurring in part and concurring in the judgment is avaialble here, and the opinion of Justice O'Connor dissenting is available here.
This case, somewhat unsurprisingly, has produced the Blakely line-up of Justices (though the Chief Justice did not participate). And, as Lyle Denniston explains here in his helpful and astute summary, the Shepard ruling raises "the prospect that the Court may be on the verge of removing the last remaining exception to the Apprendi ban on judicial fact-finding on enhanced sentences — that is, prior convictions."
More commentary — a lot more — to follow soon.
Still more SCOTUS GVRs
In what is becoming a weekly tradition, this morning we get a bunch more Booker-inspired GVRs from the Supreme Court (previous examples are here and here and here). The SCOTUS order with this morning's 20-odd Booker-remanded cases is available at this link (where one can also see that we now also have some Roper-inspired GVRs).
Still more Booker from the Sixth Circuit
We can always count on the Sixth Circuit to get our sentencing day off and running. This morning the Circuit released its unpublished decision in US v. Howard, No. 03-1786 (6th Cir. Mar. 4, 2005) (available here), which includes some interesting Booker issues.
Howard is perhaps most interesting because of the absence of any harmless error analysis. In Howard, two defendants challenged sentences based on judicial fact-finding for guideline enhancements, and the Sixth Circuit remands for resentencing on Booker grounds. Without considering harmless error issues, the Howard court simply concludes that remands are appropriate because the defendants "received, under a mandatory regime, a sentence above the maximum sentence [they] could have received based solely on the jury verdict or [their] own admissions."
In addition, the government in Howard cross-appealed to challenge the "district court's decision to grant [a third defendant] a 12-month downward departure for time served on a state conviction." The Sixth Circuit in Howard decides that the downward departure was improper and concludes it must vacate and remand "for re-sentencing without benefit of the 12-month departure, and without treating the correct guideline range as mandatory."
This result on the government cross-appeal has me a bit puzzled post-Booker, since I think the Sixth Circuit could have (perhaps should have) considered affirming the third defendant's sentence based on a form of harmless error analysis, despite its conclusion that the downward departure was improper. A district judge is never obliged to downward depart; such a decision always involves an exercise of a district court's discretion. Thus, the real impact of the district court's (apparently erroneous) conclusion that there was authority to depart essentially put the district judge into a "Booker-like" world in which the calculated guideline range had to be considered, but not followed.
If some defendants are going to have to establish post-Booker that the pre-Booker result would now be different to secure resentencing, shouldn't the government bear that same burden when it is appealing a pre-Booker sentence?
March 6, 2005
Three-ring circus ... err, three-way circuit split
I joked here a few weeks ago that the federal circuits' disparate handling of Booker "pipeline cases" was developing into a twelve-ring circus. However, with the Seventh Circuit's work in Paladino and the Fifth Circuit's work in Mares, now "just" a three-way circuit split on plain error has become pretty clearly defined. Updating my circuit review here from a few weeks ago, here's the simplified plain-error basics:
The "defendant must prove" plain error standard. The 1st, 5th and 11th Circuits are applying the most rigorous plain error standard by requiring defendants to make a specific showing of prejudice from the application of mandatory guidelines (the reasonable probability of a different outcome) to satisfy the third step of plain-error review.
The "let's ask when in doubt" plain error standard. The 2nd and 7th Circuits have adopted the general rule that, whenever the impact of the guidelines being advisory is unclear, the Circuit will ask the sentencing judge whether a defendant was prejudiced by advisory guidelines so as to satisfy the third step of plain-error review.
The "presumption of prejudice" plain error standard. Though only clearly articulated in the 6th Circuit, it seems the 3rd, 4th, 6th, and 9th Circuit have all adopted a general presumption that a defendant was prejudiced by being sentencing pursuant to advisory guidelines so as to satisfy the third step of plain-error review.
Significantly, the government has sought en banc reconsideration of the plain error rules established by Hughes in the 4th Circuit and Ameline in the 9th Circuit. But the rulings by the 2d, 5th and 7th Circuits (and maybe also the 3d Circuit) have all come through quasi-en banc collective decision-making procedures, so it appears that these circuit splits are firmly entrenched. (It also remains to be seen where the 8th, 10th and DC Circuits will place themselves. As detailed here, both the 8th and 10th Circuits have en banc oral arguments scheduled for this week.)
I have speculated previously here and here about whether the Supreme Court or any other institution will seek to clean up this plain error mess. In a system purportedly designed to achieve a measure of sentencing uniformity, the plain error circuit splits — which may be a sign of other significant post-Booker circuit splits still to come — are certainly disconcerting.
Handling Blakely/Booker habeas headaches
In this post, I noted the judiciary's Booker-inspired request for $91.3 million in supplemental funding for the current fiscal year, and spotlighted how in this memo the Judicial Conference details its views of the cost impact of Booker. Though there are many notable features of the memo, I found especially intriguing this estimate of number of possible federal habeas actions in the wake of Booker:
It is estimated that 12,000 to 18,000 new filings could be lodged under 28 U.S.C. § 2255, attacking an original sentence and asking the district court which imposed the sentence to vacate, set aside, or correct the sentence. These filing estimates are based on the Bureau of Prisons population, reduced for the inmates who already received reduced sentences under 5K1.1 (substantial assistance departure), inmates with less than six months to serve, and inmates who received no enhancements.
If the 12,000 to 18,000 estimate is supposed to quantify the number of inmates who might seek habeas relief, this number seems quite low. There are roughly 180,000 persons in federal prison and perhaps, I would guess, another 100,000 on probation or supervised release. And even federal convicts who received a 5K1.1 departure, or have less than six months to serve, or received no enhancements based on judicial fact-finding may have a sound legal reason to try to take advantage of the Booker to reduce the time they are subject to federal supervision. That said, it is also possible, especially if the circuits continue to hold that Booker is not retroactive (as did the Seventh in McReynolds and the Sixth in Humphress), that a much smaller universe of prisoners will actually file federal habeas actions.
Of course, none of this head-counting considers the (potentially much larger) universe of state defendants who are serving sentences rendered constitutionally problematic by Blakely who may file federal habeas actions if/when they do not get relief from state courts. As detailed here and here, for example, the Hawaiian state and federal courts are now in a habeas tussle over Apprendi's applicability to Hawaii's sentencing laws.
Habeas doctrines and numbers aside, a serious commitment to Constitutional principles suggests, as I have argued here and here and here, that all three branches (and not just courts) should be concerned about the potential injustice to certain defendants who, sentenced in a manner now deemed unconstitutional, may be serving longer sentences than they legally should. I continue to think, as suggested long ago in this post, that justice would be served by developing some sort of administrative mechanism for sorting, and considering remedies for, constitutionally problematic sentences that are now final (and perhaps barring the habeas courthouse door to prisoners until they seek relief through such an administrative mechanism).
Sunday morning's must-read section
The Roper decision and Martha's release from prison have generated far more media buzz about sentencing issues than one human could possibly process (although Howard at How Appealing shows he is super-human by coming close). But today's New York Times Week in Review section is my suggested must-read for today. It includes this little article questioning whether the purposes of punishment were served or undermined by Martha's time in Alderson, and this fantastic graphic charting the history of capital punishment in the United States.
But the most intriguing read is Chuck Colson's op-ed about prison life entitled "Martha Stewart Living Free." Here are a few choice excerpts:
I know firsthand why America's approach to criminal justice is such a flawed policy. The idea that prisons are "penitentiaries" (for penitence) or "reformatories" (to reform criminals) or "correctional institutions" (to correct bad behavior) is a myth. When pressed, most correction officials now acknowledge that prisons do not rehabilitate. Anybody who has spent time inside, whether Martha Stewart, Chuck Colson or a six-time drug offender, knows this - which is why I have become an advocate for alternatives.
As with Ms. Stewart, half of all inmates are in for nonviolent offenses. It would be just as much punishment to put them in work programs and make them pay back their victims or do community service. It would cost half as much, do some good, and pose no danger to society....
I was pleased to learn of one of Ms. Stewart's first statements upon her release from prison: "I will never forget the friends that I met here." This is the same promise I made 30 years ago. I hope that Ms. Stewart, who is a remarkable influence on women of all walks of life, uses her talents to reach out to the 100,000-plus women who are still behind bars. If Martha Stewart does this, I am certain she will find the same paradoxical happy ending to her prison journey that I have.
I have previously noted the work of Chuck Colson's organization, the Prison Fellowship, a few months ago in this post pondering whether we are starting to see a "new right" on criminal sentencing issues.