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.