March 19, 2005
Lots of Blakely and Booker stories in the papers
Though I a still catching my breath from another big sentencing week, my ugly bracket has me focused on work rather than basketball this morning. And I have found a number of interesting Blakely and Booker stories in the papers:
- This article from the Gary Post Tribune explains why the Indiana Supreme Court's Smylie decision (basics here, commentary here and here and here), which applied Blakely to Indiana's sentencing scheme, "has judges, prosecutors and defense lawyers scratching their heads."
- This article from the Billings Gazette provides background on Booker and details how the post-Booker world is playing out in Montana.
- There interesting coverage of former Connecticut Governor Rowland's sentence (basics here) to be found in stories from the New York Times and the Hartford Courant. And the blog Kirby's Reports has a lot more information and links on the Rowland story.
- The papers have a lot of basic coverage of the Second Circuit's remand of Martha Stewart's case for resentencing (see here and here), though the stories do not clearly explain whether Second Circuit ordered resentencing or just gave Judge Cedarbaum discretion to consider resentencing (and I cannot find the Second Circuit's order on line).
DC Circuit joins the plain error fun
Late yesterday, the DC Circuit released US vs. Smith, No. 03-3087 (DC Cir. Mar. 18, 2005) (available here), in which the circuit for the first time weighs in on the Booker plain error issue that has split the circuits (background here). Smith is a brief per curiam opinion with only limited discussion of the legal standard, but it seems that the DC Circuit is joining the 1st, 5th and 11th Circuits in requiring defendants to make a showing of prejudice from the application of mandatory guidelines. In Smith, the DC Circuit affirms the defendant's sentence, stating "Smith fails the plain error test because he cannot show that the constitutional error in this case had a prejudicial effect."
And yet, the defendant in Smith conceded that, because the district judge had upward departed in two prior sentencings, "giving the district judge wider latitude in this case could very well result in a longer sentence." Given the unique facts in Smith, I am not sure the case establishes exactly how the DC Circuit might approach the plain error issue in a case where there is a real possibility of prejudice to the defendant from the application of mandatory guidelines.
March 18, 2005
Another amazing sentencing week!
March continues to amaze me with one remarkable sentencing week after another. (Just some event of note from earlier this month are linked here and here.) In an effort to organize all the action, I link below just some of this week's highlights:
BOOKER DISTRICT COURT DEVELOPMENTS AND COMMENTARY
- Judge Presnell speaks on 5K after Booker
- Judge Goodwin speaks on Booker!
- Booker and crack/powder cocaine sentencing
- Latest, greatest, post-Booker sentencing statistics
BOOKER CIRCUIT COURT DEVELOPMENTS
- Fifth Circuit speaks directly to post-Booker standard of review
- More Sixth Circuit plain error remands
- Eighth Circuit also speaks on harmless error review
- Hughes is back (and better than ever?) in the Fourth Circuit
- Eighth Circuit finds downward departure sentence unreasonable
- Booker remand in the First Circuit
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- An insightful snapshot of Smylie
- Report on the NJ Blakely arguments
- More big Ohio Blakely news
- Insights on Shepard and its impact in California
CELEBRITY SENTENCING DEVELOPMENTS
- Rowland gets a year and a day
- Celebrity federal defendant update
- Another celebrity sentencing update
- What sentence should Bernie Ebbers get under Booker?
- What sentence should former Gov Rowland get under Booker?
Rowland gets a year and a day
The AP report here that former Connecticut Governor John Rowland, who in December pleaded guilty to one count of conspiracy to steal honest service, received a sentence today of one year plus one day in prison. (The extra day, because it makes Rowland eligible for good-time credit, actually make the sentence more lenient than if it was just one year.) As discussed in this prior post, Rowland's guideline range was 15-21 months, and thus Judge Peter Dorsey must have granted either a downward departure or a Booker variance.
Thanks to the Hartford Courant, I now have found links the to sentencing memoranda filed in the case. The defense memo, available here, simply asked for a sentence below 15-21 months, and the prosecutors' memo, available here, requested a sentence of between 30-37 months. Though I suspect the Rowland was hoping to avoid any prison time, the final outcome suggests Rowland's sentence ought to be counted as a post-Booker win for the defense.
Continuing his fine coverage of major Connecticut law stories, the blog Kirby's Reports has a lot more information and links on the Rowland story.
Judge Presnell speaks on 5K after Booker
In addition to being a great day for the Irish, St. Patty's Day 2005 will also go down as an amazing day for the common law of sentencing. The March 17 sentencing work of Judge Sifton in Simon and Judge Goodwin in Gray covers an array of important post-Booker issues, with Simon especially effective on crack sentencing and the purposes of punishment, and Gray doing amazing work on sentencing issues concerning burdens of proof, Crawford and ex post facto doctrine. And now we should add to the Irish stew of notable March 17 opinions the work of Florida District Judge Gregory Presnell in US v. Belvett, No. 6:04-cr-199-Orl-31DAB (MD Fla Mar. 17, 2005).
Judge Presnell made his mark on the post-Blakely sentencing world in various ways, as detailed here and here and here, and now in Belvett he addresses departures for substantial assistance under 5K1.1. Though, as with Simon and Gray, the full Belvett opinion (which can be downloaded below) merits a close read, here is a choice snippet that flows from the prosecutor's objection to Judge Presnell granting a larger 5K1.1 departure than requested by the government:
This case presents the next logical step in the government's philosophically one-sided bid to marginalize the judicial branch. Despite the government's constant refrain that it seeks uniformity in sentencing, the government's actual policy reveals that refrain to be disingenuous. [FN 4]
[FN 4] One of the basic goals of the sentencing guidelines was to reduce sentencing disparity. However, with respect to substantial assistance departures, this goal has not been achieved. Indeed, the commentators and the U.S. Sentencing Commission itself have noted the substantial sentencing disparity among Districts in the application of Section 5K1.1. It would be naive to think that court discretion is the primary culprit driving the disparity, as the government controls the framing of Section 5K1.1 motions and often gets the departure it recommends.
Fifth Circuit speaks directly to post-Booker standard of review
I am back at the computer after a morning of SCOTUS mooting and Booker lecturing, and there is lots of news to report. Though I am still taking in the sentencing work of Judge Sifton in Simon and Judge Goodwin in Gray (on which I will say more later), the Fifth Circuit has my attention shifted briefly to appellate issues with its decision in US v. Villegas, No. 03-21220 (5th Cir. Mar. 17, 2005) (available here), in which the court re-examines "the proper standard of review to employ in our resolution of a claim that the district court improperly applied the Sentencing Guidelines in calculating the sentencing range under the previously mandatory, now advisory, sentencing guideline regime."
Here is what the Villegas court says about the standard of review:
We conclude that when a district court has imposed a sentence under the Guidelines, this court continues after Booker to review the district court's interpretation and application of the Guidelines de novo. We do not speak in this opinion, however, to the situation in which a district court elects to exercise its post-Booker discretion to impose a non-Guidelines sentence....
[N]othing suggests that Booker injected a reasonableness standard into the question whether the district court properly interpreted and applied the Guidelines or that an appellate court no longer reviews a district court's interpretation and application of the Guidelines de novo.
Notably, in Villegas the Fifth Circuit's de novo review leads to a conclusion that a gun enhancement under the guidelines was improperly applied. In turn, explains the court, because "the district courts misapplication of the Guidelines requires a remand in this case, we need not consider Villegas's argument that his Sixth Amendment rights were violated."
Judge Goodwin speaks on Booker!
Providing another must-read for Booker fans on a Friday morning (along with Judge Sifton's work in Simon discussed here), SDWV District Judge Joseph Goodwin gives us his take on the post-Booker world with US v. Gray, No. 3:03-00182 (SD W Va Mar. 17, 2005) (available here). Judge Goodwin did some terrific work post-Blakely (see here and here), and his post-Booker work in Gray does not disappoint. Here is the opinion's introduction:
First, I calculated the applicable Guideline range for each defendant by making appropriate findings of fact and resolving objections to the presentence report. Following this determination, I examined and applied the sentencing factors set forth in 18 U.S.C. § 3553(a). I then considered what the Guideline advice would have been if calculated using only the evidence proven beyond a reasonable doubt. Once I had investigated each applicable factor, I considered these factors, along with the Guideline range, as separate pieces of advice that together informed the exercise of my discretion as I determined an appropriate sentence for the defendants, Terrence Askew and Joshua Gray.
Below is a discussion of the factual findings determined at the sentencing hearing, a discussion of the applicable § 3553(a) factors, and a calculation of the defendants’ advisory Guideline range. In addition to factual objections to the presentence report, each defendant, by counsel, filed numerous legal arguments with the court in the form of sentencing memoranda. Specifically, the defendants raised important reasonable doubt, ex post facto, and Crawford v. Washington concerns both in their memoranda to the court and at the hearing in this matter. I deal with each of these concerns at length below.
Another celebrity sentencing update
Following up on the high-profile cases discussed here yesterday, this Washington Post article indicates that Martha Stewart's lawyers did ask the Second Circuit to remand her case for resentencing. Martha's case would certainly make for an interesting Booker resentencing if it were to come to pass. [UPDATE: The press is now reporting (see here and here) that the Second Circuit issued a Crosby remand for resentencing in Martha's case.]
In the meantime, we have former Connecticut Governor Rowland's scheduled sentencing today for Booker intrigue. The New York Times has coverage here, and NY Newsday has lots more details about the case in pieces here and here and here.
Another case for addressing prior conviction exception
As detailed in this post, one of my many questions in the wake of the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here) concerns how long will it take for the Court to grant cert. on a case directly addressing the status of the Almendarez-Torres "prior conviction" exception to the Apprendi/Blakely rule. (Recall, as noted here, that Justice Thomas in his Shepard concurrence asserted that " in an appropriate case, this Court should consider Almendarez-Torres' continuing viability [because] [i]nnumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres.")
The Supreme Court will likely now be presented with steady stream of cert. petitions requesting it to address the Almendarez-Torres "prior conviction" exception head on. I was sent one such cert. petition recently and provide it for downloading below. Here is the opening paragraph:
This Court should grant certiorari to overrule Almendarez- Torres v. United States, 523 U.S. 224 (1998). That decision is fundamentally incompatible with the Sixth Amendment principles expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, and has been disapproved by a majority of this Court. Its validity was called into question by five members of this Court just two years after it was decided; it simply has not been formally overruled. Now that the limits of Apprendi have been tested and its fundamental rationale repeatedly reaffirmed, the time is ripe to revisit the nowanomalous decision in Almendarez-Torres. Such review is particularly timely, given the recent reconfirmation by a member of the Almendarez-Torres majority that that case was wrongly decided and should be reconsidered. See Shepard v. United States, __ S. Ct. __, 2005 WL 516494, at *9 (Mar. 7, 2005) (Thomas, J., concurring in part and concurring in the judgment).
March 18, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (2) | TrackBack
March 17, 2005
Booker and crack/powder cocaine sentencing
As detailed in this post, earlier this month Judge Adelman in US v. Smith, No. 02-CR-163 (E.D. Wisc. Mar. 3, 2005), used his new post-Booker authority to address the disparity between crack and powder cocaine sentencing. I have recently been hearing reports of a number of other district judges taking similar action, and this afternoon I was informed that EDNY District Judge Charles Sifton today issued a lengthy decision in US v. Simon, 90 CR 216, in which Judge Sifton rules, inter alia, that post-Booker courts do not have to follow the 100:1 crack-powder ratio.
I hope to soon be able to provide more information about exactly what Simon says, though in the meantime I would be grateful for readers to use the comments to report other developments in the arena of crack/powder cocaine sentencing.
UPDATE: Thanks to Michael Ausbrook over at INCourts, I can now post a copy of Judge Sifton's remarkable opinion in US v. Simon, No. CR-90-216 (E.D.N.Y. Mar. 17, 2005). Though Simon is perhaps most notable for its extended crack sentencing analysis, the opinion also insightfully covers what weight the guidelines are to be given post-Booker and also has a thoughtful and thorough discussion of the purposes of punishment.
Folks interested in crack cocaine issues post-Booker should, in addition to downloading Simon, also check out recent opinions by Judge Ponsor in US v. Thomas, 2005 U.S. Dist. LEXIS 3972 (D. Mass. Mar. 14, 2005), and by Judge Robinson in US v. Harris, 2005 U.S. Dist. LEXIS 3958 (D.D.C. Mar. 7, 2005).
New (depressing) report on women and increased incarceration
Yesterday I reported in this post on a new (depressing) report on race and increased incarceration from the Justice Policy Institute. Today, the ACLU brings us a new (depressing) report on women and increased incarceration entitled "Caught in the Net: the Impact of Drug Policies on Women & Families." Grits for Breakfast has terrific coverage of the ACLU report here, and this press release provides more background on the report and the issues it covers.
The full report can be access at this link, and here are some passages from the report's Executive Summary:
Federal and state drug laws and policies over the past twenty years have had specific, devastating, and disparate effects on women, and particularly women of color and low income women. These effects require further study and careful consideration as state and federal decision-makers evaluate existing and prospective drug laws and policies.
Reliance on the criminal justice system to reduce use, abuse, and sale of illegal drugs has had little effect on the supply and demand of these drugs in the United States. It has, however, led to sky-rocketing rates of incarceration of women.
Nationally, there are now more than eight times as many women incarcerated in state and federal prisons and local jails as there were in 1980, increasing in number from 12,300 in 1980 to 182,271 by 2002....
The underlying circumstances contributing to the dramatic increase in women's incarceration for drug offenses, including patterns of women's drug use, barriers to seeking and obtaining treatment, lack of effective and appropriate treatment for women, the nature of women's involvement in the drug trade, and patterns of prosecution and sentencing of women for drug offenses, have yet to be thoroughly examined and addressed by researchers or policy makers. Available research in these areas indicates a strong connection between women's experiences of violence and economic and social pressures, and their drug use or involvement in the drug trade.
Celebrity federal defendant update
As others have noted here and here, oral arguments in Martha Stewart's appeal were held this morning before the Second Circuit. I think Martha would be entitled to a remand for resentencing on Booker grounds, though I suspect at this point she may only be seeking a reversal of her conviction. Indeed, I wonder if sentencing issues were even raised at the oral arguments.
Of greater Booker excitement, the sentencing of former Connecticut Governor Rowland is scheduled for tomorrow, and this article reports that Rowland's lawyers have filed a sentencing memorandum requesting a sentence below the guideline range of 15-21 months of imprisonment. (I'd love to know if the memorandum seeks a departure, a variance, or both.) The article suggests that the government's sentencing memorandum to be filed later today may ask for a sentence greater than 21 months.
I pondered in this post earlier this week what sentence Rowland should get under Booker. Most commentors predicted a within-range sentence. Interestingly, this Hartford Courant editorial asserts that "[e]ven the maximum penalty of five years for the charge should be considered blessedly short" for Rowland.
UPDATE: Thanks to this post from Kirby's Reports, I now know prosecutors are recommending that Rowland receive a sentence between 30 and 37 months. It will be very interesting to see what District Judge Dorsey decides.
More Sixth Circuit plain error remands
Yesterday was a particularly notable day for Booker developments in the circuits, with the First Circuit's remand in MacKinnon (basics here, commentary from PRACDL Blog here), the Fourth Circuit's reiteration of its approach to plain error in Hughes (discussed here), and the Eighth Circuit's work on reasonableness in Rogers (details here) and harmless error in Haidley (details here). But we should never forget to check in with the Sixth Circuit, since it is always keeping Booker busy.
And yet the Booker story in the Sixth Circuit is getting a bit dull, even though the court remains Booker active. The Sixth Circuit is now quite consistently remanding plain error cases on the authority of Oliver and Barnett. For example, today we get such remands in the published case of US v. McCraven, No. 03-6311 (6th Cir. Mar. 17, 2005) (available here), and in the unpublished dispositions in US v. Howard, No. 04-5240 (6th Cir. Mar. 17, 2005) (available here), US v. Susewitt, No. 03-6572 (6th Cir. Mar. 17, 2005) (available here), US v. Bowman, No. 04-5102 (6th Cir. Mar. 17, 2005) (available here). And yesterday brought similar unpublished dispositions in US v. Funk, No. 03-4559 (6th Cir. Mar. 15, 2005) (available here), US v. Green, No. 04-1499 (6th Cir. Mar. 16, 2005) (available here).
An insightful snapshot of Smylie
The biggest recent development in the always intriguing Blakely in the states storyline was last week's Smylie decision by the Indiana Supreme Court which applied Blakely to Indiana's sentencing scheme (basics here, commentary here and here). Indiana attorney Michael Limrick has produced an terrific article on the case, entitled "Snapshot of Smylie," to appear in a local bar publication. The article, which covers a host of issues that should be relevant to any state struggling with Blakely, can be accessed at this link. Here's the opening paragraph:
On March 9, the Indiana Supreme Court stepped into the Blakely fray and ruled in Smylie v. State that Indiana’s felony sentencing system, as presently written, violates the Sixth Amendment right to trial by jury. Yet, as with seemingly every decision tackling the United States Supreme Court’s recent sentencing jurisprudence, Smylie left more questions than answers. Thus, while an important step, Smylie is hardly the last in Indiana’s trail of litigation following Blakely.
UPDATE: Michael Ausbrook over at INCourts quotes in this post perhaps the most important and far-reaching insights to be found in Michael Limrick's discussion of Smylie.
Notable sentencing items around the blogsphere
Lots of interesting sentencing items on a number of blogs have caught my eye this evening:
- Concerning the death penalty, the ASCBlog has this post of the death penalty after Roper, and the Death Penalty Information Center has a number of intriguing "what's new" items here.
- The Ninth Circuit Blog has this detailed post on the Supreme Court's decision in Shepard (basics here, commentary here and here and here) which explains how the decision provides "rich opportunities for creative litigation" and why "the opinion will have far-reaching effects."
- SCOTUSblog has more in this post on the legal wrangling surrounding the Medellin case concernig foreign nationals on death row (background here).
- CrimProf Blog spotlights here a forthcoming article by Youngjae Lee entitled The Constitutional Right Against Excessive Punishment (available from SSRN at this link), and also has a great collection here of items concerning the cost savings that could flow from alternatives to incarceration.
March 16, 2005
Analyzing the post-Booker sentencing statistics
Because even the latest post-Booker data from the US Sentencing Commission (discussed here) still has only a relatively small sample of cases, it is still too early to make any firm judgments about the ultimate look of the post-Booker sentencing world based on the preliminary data. (Indeed, I have heard that the USSC has not yet received data from certain key federal districts, which could skew the cumulative data.)
Nevertheless, though the jury is still out on post-Booker sentencing realities, it is not too early to be assembling key sentencing statistics and trying to identify some notable patterns. Helpfully, law student Brian Green has done just that by creating a helpful chart setting out pre-Booker and post-Booker sentencing outcomes based on the statistics made available by the USSC.
Brian's helpful chart can be downloaded below, and Brian highlighted in his e-mail to me the "significant increase in above [range] sentencing occurring after Booker" and his concern that commentators are not discussing "the increase in above-guideline-range sentencings." I share Brian's concerns, although I should note my prior posts here and here which question whether due process principles may limit an increase in a post-Booker sentence based on pre-Booker conduct.
Still more summarizing of the post-Booker world
Earlier today in this post I was able to share Professor Daniel Capra's reviews of post-Booker developments in the district and circuit courts. Perhaps inspired by this fellow traveler, Frances Pratt, Research and Writing Attorney in the Office of the Federal Public Defender in Alexandria, Virginia, has updated again her extended outline of post-Booker decisions. This latest version, which now runs 43 pages, can be downloaded below.
Eighth Circuit also speaks on harmless error review
The Eighth Circuit reversal of a sentence as unreasonable today in Rogers (discussed here) is the biggest news of the day from that circuit. However, I now see that the Eighth Circuit also issued a major decision today discussing post-Booker harmless error review in US v. Haidley, No. 04-3312 (8th Cir. Mar. 16, 2005) (available here).
In Haidley, the defendant had preserved a challenge to the guidelines, though her case did not raise a Sixth Amendment issue because she had admitted the amount of loss involved in the offense. Explained the court:
The issue we face, then, may be framed as follows. Is it harmless error to sentence a defendant under a mandatory federal sentencing guideline regime, as opposed to the Booker advisory system, when there is no Sixth Amendment issue as to the guideline computation and the defendant is sentenced at the bottom of the federal sentencing guideline range? We conclude that it is not harmless error and that the present case must be remanded for resentencing under the discretionary system set out in Booker.
The Eighth Circuit's explanation of this harmless-error conclusion is interesting, as it (1) ducks the issue of whether application of mandatory guidelines is an error "of constitutional or nonconstitutional magnitude," (2) speaks broadly to issues made relevant by 3553(a), and (3) distinguishes the Eighth Circuit's questionable post-Booker ruling in Parsons (discussed here).
Relatedly, in two brief unpublished decisions, US v. Toelle, No. 04-3010 (8th Cir. Mar. 16, 2005) (available here) and US v. Alford, No. 04-3407 (8th Cir. Mar. 16, 2005) (available here), the Eighth Circuit remands for resentencing on the authority of Haidley.
Hughes is back (and better than ever?) in the Fourth Circuit
The Fourth Circuit, which had me scratching my head in this post when the panel which decided Hughes and established the circuit's plain error standard granted rehearing, has now reissued its Hughes opinion. The opinion, which is available here, stays true to its original holding (background here), but the court now can explain why it thinks the Eleventh Circuit's approach to plain error in Rodriguez is erroneous. As one person wrote to me: "This is pretty crazy, it is almost like it was personal."
Eighth Circuit finds downward departure sentence unreasonable
The Eighth Circuit today, in US v. Rogers, No. 04-1461 (8th Cir. Mar. 16, 2005) (available here), became I believe the first circuit to reverse a sentence post-Booker on the grounds that it was unreasonable. The district judge in Rogers had departed downward on the basis of extraordinary rehabilitation from a guideline range of 53-61 months down to 5 years of probation. In reversing, the Eighth Circuit explained:
The facts in this case do not show extraordinary or atypical rehabilitation justifying a downward departure. Rogers's reuniting with family and remaining drug-free, while commendable, are not extraordinary or atypical. See United States v. Patterson, 315 F.3d 1044, 1049 (8th Cir. 2003). In the absence of extraordinary or atypical post-offense rehabilitation, the departure was impermissible. However, because the Guidelines are not mandatory, the sentence is reviewed for unreasonableness.
The sentence is unreasonable when measured against the factors of reasonableness set forth in section 3553(a). The possessing-rifle-after-hunting is Rogers's second parole violation in eight months. Earlier, Rogers was found trespassing in a restricted area at Truman Dam, while two men — also on probation for manufacturing a controlled substance — fished nearby with his son in a no-fishing area. Trespassing with felons does not demonstrate respect for the law. See 18 U.S.C. § 3553(a)(2)(A).
Rogers's second parole violation illustrates that parole/probation is not adequate deterrence. See 18 U.S.C. § 3553(a)(2)(B). He understood the terms of parole, yet knowingly possessed the rifle. Moreover, as the violations show, probation would not protect the public from criminal conduct. See 18 U.S.C. § 3553(a)(2)(C).
The sentence of probation does not adequately address the history and characteristics of the defendant. See 18 U.S.C. § 3553(a)(1). Aside from (admitted) use of marijuana, cocaine, and methamphetamine, Rogers has convictions for assault, stealing, resisting arrest, attempting to manufacture methamphetamine, and trespassing. While the district court was not bound to the suggested range of 51 to 63 months imprisonment, probation is unreasonable.
The sentence of probation does not properly consider Congress's desire to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(6). It is unreasonable to expect that defendants with similar records, guilty of similar conduct, would receive probation.
By the factors in section 3553(a), the district court's sentence was unreasonable. The judgment is VACATED and REMANDED for re-sentencing.
Booker remand in the First Circuit
As noted by Appellate Law & Practice here, the First Circuit today in US v. MacKinnon, No. 03-2219 (1st Cir. Mar. 16, 2005) (available here) remands for re-sentencing on Booker grounds, applying the plain error standards that the circuit established in its Antonakopoulos decision (discussed here) which requires the defendant to show he was prejudiced by the application of mandatory guidelines. (Background on the circuits approaches to plain error is here.)
The defendant in MacKinnon was able to make such a showing based in part on this statement by the sentencing judge at the defendant's pre-Blakely sentencing:
"I have worked hard on the memorandum and tried to figure out some way under the law in which the sentence could be reduced. I can't do it. And although I totally disagree with our government's policies at this stage concerning sentencing, I am bound to obey my oath and to do this according to principle, knowing all the time that this is an unjust, excessive and obscene sentence."
More summaries of post-Booker caselaw
Fordham Professor Daniel Capra has sent me (and allowed me to post) two terrific reviews he has done of post-Booker developments in both the district and circuit courts. These reviews are available for downloading below.
New (depressing) report on race and increased incarceration
As I highlighted previously in this post, there has been relatively little discussion of racial disparities or the overall scope of imprisonment in all the recent debates over sentencing reform. (As detailed in this post, though, Marc Mauer has urged that post-Booker debates include a re-examination of "the unprecedented harshness of the policies adopted over the past 20 years, which have combined to produce a prison population unimaginable until recently.")
But a recent Justice Policy Institute report entitled "Tipping Point: Maryland’s Overuse of Incarceration and the Impact on Community Safety" puts a critical spotlight on these issues. As detailed in this article from the Baltimore Sun, the report finds that over half of "Baltimore's African-American men in their 20s are either incarcerated or under criminal justice system supervision," and argues that "much of the money spent on incarceration would be better spent on drug treatment and community redevelopment." The Tipping Point report can be accessed at this link, and key findings from the report are summarized in this press release.
March 15, 2005
Latest, greatest, post-Booker sentencing statistics
In addition to the interesting Booker documents coming from the Administrative Office of the US Courts in conjunction with today's meeting of the US Judicial Conference (detailed here), the meeting also prompted the US Sentencing Commission to update its collection of "post-Booker cases received, coded, and edited as part of the Commission's post-Booker project." The Commission has posted the latest numbers, which are based on data extracted at close-of-business on March 3, 2005, on its website at this link. (Kudos to the USSC for continuing to disseminate this data "in real time.")
This latest data report now covers over 3,000 cases, and the cumulative numbers have not changed dramatically since the last report detailed here. And, as the number of total cases grows, I am hopeful the USSC will soon be able to break-down these general stats so that we can have a more detailed understanding of what sorts of cases are still falling within the guidelines, are subject to departures, and are subject to variances.
What sentence should Bernie Ebbers get under Booker?
This morning I pondered in this post what sentence former Connecticut Governor Rowland might get under Booker, and now this afternoon we have another high-profile sentencing to contemplate. As detailed in this AP story, former WolrdCom chief Bernard Ebbers was convicted today on numerous fraud counts. Peter Henning over at the White Collar Crime Blog has this post thughtfully detailing that Blakely and Booker issues are likely to impact not only Ebbers' sentencing, but also his expected appeal.
Reports from the Judicial Conference
I have just come back from participating in this enlightening teleconference, and return to news concerning the Booker work done today by the US Judicial Conference. SCOTUSblog in this post reports that the Conference at its meeting "urged Congress to take no immediate legislative action to alter the federal sentencing system in the wake of the Supreme Court ruling limiting the Sentencing Guidelines to an advisory role." A fuller account of the Conference's Booker work can be found in this official news release from the Administrative Office of the US Courts.
In addition, the Administrative Office of the US Courts also issued today this news release covering overall case filings in the federal courts in fiscal year 2004. Since these statistics run through September 30 2004, I think there are obvious (and not so obvious) Blakely stories in the increase in criminal case filings.
What sentence should former Gov Rowland get under Booker?
This past December (post-Blakely, but pre-Booker), former Connecticut Governor John Rowland pleaded guilty to one count of conspiracy to steal honest service, a felony that carries a sentence of up to five years in prison (background here). According to this AP story, Rowland is due to be sentenced this Friday by Connecticut US District Court Judge Peter Dorsey and "more than 200 letters [have been sent] to the sentencing judge from both angry state residents and prominent supporters of the governor, including the president of Yale University."
The many letters sent to Judge Dorsey spotlights that Rowland's sentencing will serve as a fascinating case-study in the new world of Booker sentencing. Unless the terms have changed, Rowland's federal plea deal (previously discussed here and here) calculates the guideline sentencing range of 15-21 months of imprisonment. The plea agreement also contemplates that Rowland will argue for a downward departure from the guideline range of 15-21 months on various grounds related to his minor role in the offense and his professional and community contributions.
It will be interesting to see if Judge Dorsey chooses to follow the guidelines, or to depart, or to vary based on the 3553(a) sentencing factors. I can think of good arguments to support all the possibilities. Readers are encouraged to use the comments to indicate what they think the sentence should be (or to predict what they think it will be) given our new Booker realities.
March 15, 2005 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack
Beware the Ides of Blakely March?
Perhaps to celebrate the Ides of March, or sentencing March Madness, the technology has been cranky this morning and I have been struggling to access or post to the blog. But all seems well now, and thus I can spotlight a number of articles in today's newspapers covering Blakely state developments:
- From Indiana, this article examines the possible impact of the last week's Smylie decision by the Indiana Supreme Court which applied Blakely to Indiana's sentencing scheme (basics here, commentary here and here).
- From New Jersey, this article discusses yesterday's arguments in the New Jersey Supreme Court in three major Blakely cases (basics here, commentary here). Relatedly, Michael Ausbrook at INCourts has an extended account of the NJ arguments posted here.
- From Ohio, this article reviews the recent Montgomery decision from Ohio's first appellate district applying Blakely to Ohio's sentencing scheme (previously discussed here).
Printable blog archives
My terrific research assistant has completed his monthly update of posts from this blog into a (printer-friendly) Word document with embedded links and a TOC. In addition to providing here that document for downloading, I also have links below to prior posts with earlier Word archives of blog posts.
March 14, 2005
Scalia speaks out on Roper
I noted here earlier today the widespread criticisms that the Supreme Court's work in Roper has generated, and Justice Scalia has apparently joined the Roper-bashing bandwagon. Thanks to Howard at How Appealing, who provides the links here, you can hear Justice Scalia assail Roper during a speech today at a Washington think tank. The speech is summarized in this AP report and this MSNBC article.
UPDATE: TalkLeft has this extended post discussing Justice Scalia's speech and examining more broadly his approach to the Eighth Amendment.
Quick tour around the blogsphere
A relatively quiet afternoon means time to find and read some blog posts of note:
- Grits for Breakfast has collected links here to a "slew of sentencing reform bills in play at the Texas Legislature."
- SCOTUSblog has collected links here to all the of briefs in the prison/religion case, Cutter v. Wilkinson, to be argued next Monday in the Supreme Court.
- From the Booker world, the Third Circuit Blog has this post spotlighting how broad the Third Circuit's remand approach extends and the Defense Newsletter Blog has this post detailing how the Eleventh Circuit in US v. Frye had to amend its opinion to rely on an appeal waiver rather than the defendant's admission to affirm a sentence with potential Blakely/Booker problems.
Report on the NJ Blakely arguments
Michael Ausbrook at INCourts has this post discussing this morning's arguments in the New Jersey Supreme Court in three major Blakely cases (background here). I watched a good part of the arguments via webcast, and I concur with Michael's view that the NJ Supreme Court seemed inclined to apply Blakely to New Jersey's sentencing scheme, and also seemed most interested in a Booker-like remedy. I believe the arguments should be archived here before too long.
Intrigued by the Roper bashing
Jeffrey Rosen has this essay in the The New Republic on the Supreme Court's Roper decision with this provocative openning:
The morning after the Supreme Court struck down the juvenile death penalty as a form of cruel and unusual punishment in Roper v. Simmons, the reaction in the Supreme Court press room was unusually scathing. A liberal journalist lamented that, ever since Justice Anthony Kennedy, who wrote the 5-4 opinion for the Court, styled himself as a judicial statesman, he has become insufferable, out of control, and "deserves to be slapped." A conservative journalist chimed in that the decision was embarrassing, because the justices had imposed their own moral preferences on the country without attempting to convince those who disagreed.
The consensus among our ideologically diverse little band was revealing. Roper v. Simmons is indeed embarrassing....
Though the bulk of Rosen's piece is about the Supreme Court's consideration of international opinion in its decisions, it confirms (and contributes to) my general impression that Roper has been among the most critically assailed Supreme Court opinions in recent memory.
Rather than join the critical discussion of Roper, I am interested in a critical discussion of why the discussion of Roper has been so critical. I am drawn to this question principally because Roper, at least on its merits, is arguably not all that much different than the Supreme Court's 2002 decision in Atkins which found a constitutional prohibition on the execution of persons who are mentally retarded. I do not recall Atkins being treated harshly by commentators.
There are tangible doctrinal differences between Roper and Atkins which arguably could explain their different receptions. But I am inclined to think other factors besides purely legal considerations explain the distinct reactions to Roper and Atkins. In particular, as the Rosen piece suggests, I sense that bashing Justice Kennedy (the author of Roper) and bashing the considerations of foreign authorities is far more in vogue these days than was bashing Justice Stevens (the author of Atkins) and bashing the considerations of foreign authorities in 2002.
More big Ohio Blakely news
I have frequently spotlighted the interesting stories surrounding the application of Blakely to Ohio's sentencing laws (general background here and here, post-Booker developments here and here). The tale continue with the Ohio First Appellate District's ruling late last week in State v. Montgomery, 2005-Ohio-1018 (1st Dist. Mar. 11, 2005) (available here)
As reported here last month, though most of Ohio's intermediate appellate courts had found Blakely largely inapplicable in Ohio, the First Appellate District in State v. Bruce, 2005-Ohio-373 (Ohio 1st Dist. Feb. 4, 2005) (available here), concluded that Booker significantly altered the Blakely analysis in Ohio. The Bruce court explained that, though it had previously concluded that "Blakely did not materially affect the Ohio sentencing scheme," the Supreme Court's "recent decision [in] Booker [makes] clear that this interpretation was wrong."
Interestingly, the Bruce court only had occassion to address Blakely's application to judicial fact-finding in support of maximum terms under Ohio law, but Mongtomery now extends the analysis to judicial fact-finding in support of any sentence above the Ohio statutory minimum (and does so despite the fact that two other Ohio appellate districts have rejected the approach taken in Bruce):
As we have noted previously, Blakely's bright-line rule is that any fact that increases the penalty for a crime above the prescribed statutory maximum must be found by a jury or admitted by the defendant. In Bruce, we held that the statutory maximum is the maximum term a sentencing court can impose without any additional findings by the court. Under R.C. 2929.14(B), the only prison term a sentencing court can impose on an offender who has not previously served a prison term, without making additional findings, is the minimum prison term allowed by law for the offense. Thus, we hold that the statutory maximum for an offender who has not previously served a prison term is the minimum prison term allowed by law for the offense....
While our decision today to treat the minimum prison term as the statutory maximum for offenders who have not previously served a prison term is in conflict with the Third Appellate District's decision in State v. Trubee and the Tenth Appellate District's decision in State v. Abdul-Mumin, we believe that it comports with our holding in Bruce, where we explained that the "statutory maximum" sentence is the maximum sentence a court may impose without any additional findings, and with Booker, where the Supreme Court reaffirmed the bright-line rule that any fact that affects the level of punishment above the statutory maximum must be found by a jury or admitted by the defendant.
As I have highlighted before, in memos linked here, the Ohio Criminal Sentencing Commission has been tracking Blakely developments closely. It appears that this Commission will now need to update its two memos (available here and here) on Blakely and Booker in Ohio. Even more importantly, the Montgomery ruling highlights that the Ohio Supreme Court needs to jump into this scrum as soon as possible.
Interesting (non-Blakely) sentencing items in the papers
Though I continue to be consumed by Blakely, Booker, Shepard stories (see all the links here with just some of last week's fun), two recent newspaper pieces are great reminders of other important and interesting sentencing issues:
- This article from Washington Post discusses the efforts of Kenneth Starr to overturn the Virginia death sentence of convicted murderer Robin Lovitt.
- This article from the San Francisco Chronicle discusses shame punishments broadly in conjunction with reporting that Oakland has plans to plaster "on bus stop signs or even 10-foot by 22-foot billboards" the faces of persons "caught by surveillance cameras and convicted of solicitation."
NJ Blakely arguments on-line
Folks (like me) still tracking closely the story of Blakely in the states can watch on-line from this link a live webcast at 10am this morning of the three Blakely cases being considered by the New Jersey Supreme Court. (The decisions being reviewed are described briefly and linked here, and addition background on Blakely in New Jersey can be found in prior posts here and here and here.)
Booker head-count at two months
This weekend marked the two month anniversary of Booker, which serves as good time to do another on-line head-count of court decisions. As detailed here, a month ago a Booker search on Westlaw brought up 132 federal sentencing rulings. Now such a search brings up 339 decisions (222 of which are from circuit courts, and 117 from district courts). Of course, as detailed in the latest set of US Sentencing Commission post-Booker statistics, these on-line rulings represent only a small part of the post-Booker federal sentencing universe.
March 13, 2005
Insights on Shepard and its impact in California
In my coverage of the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here), I have particularly stressed the impact of the Almendarez-Torres prior conviction exception — and its potential demise — on state sentencing systems. (For example, prior posts have included Shepard briefs from New Jersey and North Carolina). The folks at the First District Appellate Project have now filled out the Shepard story for California in a terrific memo, available here, entitled "Making Use of Shepard v. United States in California Cases."
Authored Jonathan D. Soglin, Staff Attorney at First District Appellate Project, the California Shepard memo provides a detailed summary of the Shepard opinions and then explains in detail the decision's potential impact on current and future California sentencing litigation. Here's an excerpt from the introduction:
Although Shepard ultimately was not decided on constitutional grounds, it is important for California cases because:
- Shepard confirms that there are enough votes on the Supreme Court to hold that there is a federal constitutional right to a jury trial on prior conviction allegations and, thus, to overrule the Almendarez-Torres v. U.S. (1998) 523 US 224 prior-conviction exception to Apprendi and Blakely;
- Shepard confirms that although Almendarez-Torres remains controlling authority, it should be read very narrowly to only apply to facts established by the record of conviction; and
- assuming that Almendarez-Torres remains good law, Shepard nevertheless restricts the documents that can be used to prove whether a prior convictions satisfies the requirements of the enhancement statute.
March 13, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack