March 16, 2005
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