April 13, 2005
Big development on federal boot camp
Courtesy of a FOB ("friend of blog"), I just got the news US District Judge Saris has enjoined the Bureau of Prisons from terminating the Shock Incarceration (or Intensive Confinement Center) Program until it has complied with the Administrative Procedure Act. (Interesting background on this story can be found here.)
The decision, which can be downloaded below, is Castellini v. Lappin, 05-10220 (D. Mass. Apr. 12, 2005), and here is the opinion's introduction:
Plaintiff Richard Castellini, who was sentenced to twenty-one months of incarceration with a recommendation that his sentence be served in the federal boot camp program, moves for a temporary restraining order and/or preliminary injunction to prevent defendant Harley Lappin, Director of the federal Bureau of Prisons (“BOP”), from terminating the boot camp program. Plaintiff argues that he is likely to succeed on the merits because the BOP's termination of the program exceeded the BOP's authority, violated the notice-and-comment requirements for agency rulemaking under the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, and violated the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3. After hearing, plaintiff's motion is ALLOWED on the ground that plaintiff is likely to succeed on his claim that the BOP failed to comply with the APA and violated the Ex Post Facto Clause.
The rhetoric and reality surrounding the brewing Booker fix
I received today a copy of a fascinating one-page document that reportedly was developed by Representative James Sensenbrenner's office to explain section 12, the Booker fix section, of the proposed drug sentencing bill, H.R. 1528. (Links assembled in this post provide extensive materials and commentary on this bill, its Booker-inspired provisions, and yesterday's House hearing on the bill.)
The document, which I provide for downloading below, is titled "Provisions of HR 1528 are not the legislative fix to Booker." It correctly highlight aspects of Booker that Section 12 would not alter. However, the document suggests that the chief goal of the section is to "establish procedures to assure that there is an adequate appellate and public record so that courts of appeals can apply the new Booker 'reasonableness' standard of review and so that Congress can review the sentencing practices as it considers a Booker fix."
Though the document does note that Section 12 "prohibits judges from using enumerated factors to sentence below the guideline range," the document does not explain the strikingly unbalanced nature of its proposed "procedures." As written, Section 12 would rigidly restrict the bases on which a judge can sentence below an applicable guideline range (and would impose burdensome procedural requirements before a judge could depart or vary), but the section does not in any way regulate judicial decisions to sentence at or above the guideline range on any ground. Professor Frank Bowman's letter dissecting and assailing Section 12, which is available here, is far more accurate and forthright in detailing its terms and impact.
Apparently there are now conflicting reports on whether H.R. 1528 will be marked up in full committee next Wednesday. But it is clear anyone concerned about this sort of congressional response to Booker should work to help ensure that rhetoric does not eclipse reality as the legislative process unfolds.
April 13, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Lots of interesting sentencing items in the papers
An array of newspaper articles this morning covers an array of interesting and important sentencing topics:
- This article from the New York Times reports on yesterday's vote by the New York State Assembly Codes Committee to defeat a bill to reinstate New York's death penalty. The article spotlights the potential national significance of this development, and it also discusses some of the political issues I have recently spotlighted here and here.
- Reporting on recent circuit Booker action, this article spotlights a high-profile Booker remand from the 8th Circuit, and this article discusses the 2d Circuit's decision in Guzman finding that Booker is not to be applied retroactively to cases on collateral review (previously discussed here).
- Reporting on cooperation's role in federal sentencing, this article from New Jersey discusses a reduced sentence for one "productive informant," and this article from New Hampshire examines more broadly the sentencing impact of cooperation.
April 12, 2005
House hearing wrap-up
I have assembled below all the posts covering today's hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security concerning H.R. 1528, the drug sentencing bill which includes the Booker fix provisions:
- The (Booker) fix is in?
- Details concerning the brewing Booker fix
- Questions about the brewing Booker fix
- A day for sentencing hearings
- Bowman on the proposed Booker fix
- More opposition to quick Booker fix
- DOJ advocacy for mandatory minimum sentencing
DOJ advocacy for mandatory minimum sentencing
As detailed on this page from Families Against Mandatory Minimums and in this letter from the Federal Sentencing Guidelines Task Force of the Federal Bar Association's DC Chapter (of which I am a member), numerous policy-makers, judges, researchers and other respected commentators have spoken out against mandatory minimum sentencing provisions. But in today's hearing on H.R. 1528, the federal drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and here and here), written testimony on behalf of the Justice Department from Jodi Avergun, DEA's Chief of Staff, makes a broad argument in favor of mandatory minimum sentencing.
Avergun's testimony is available here, and here are two paragraphs on mandatory minimum sentencing that caught my eye:
The Department of Justice supports mandatory minimum sentences in appropriate circumstances. In a way sentencing guidelines cannot, mandatory minimum statutes provide a level of uniformity and predictability in sentencing. They deter certain types of criminal behavior determined by Congress to be sufficiently egregious as to merit harsh penalties by clearly forewarning the potential offender and the public at large of the minimum potential consequences of committing such an offense. And mandatory minimum sentences can also incapacitate dangerous offenders for long periods of time, thereby increasing public safety. Equally important, mandatory minimum sentences provide an indispensable tool for prosecutors, because they provide the strongest incentive to defendants to cooperate against the others who were involved in their criminal activity.
In drug cases, where the ultimate goal is to rid society of the entire trafficking enterprise, mandatory minimum statutes are especially significant. Unlike a bank robbery, for which a bank teller or an ordinary citizen could be a critical witness, often in drug cases the critical witnesses are drug users and/or other drug traffickers. The offer of relief from a mandatory minimum sentence in exchange for truthful testimony allows the Government to move steadily and effectively up the chain of supply, using the lesser distributors to prosecute the more serious dealers and their leaders and suppliers. Mandatory minimum sentences are needed in appropriate circumstances, such as trafficking involving minors and trafficking in and around drug treatment centers.
The rest of Avergun's testimony is also an interesting read, though it does not address the Booker fix provisions of H.R. 1528 because they were tacked on at the last minute. Notably, Avergun's testimony indicates that even DOJ considers some of the most draconian drug sentencing provisions of H.R. 1528 to be too severe.
April 12, 2005 in Booker and Fanfan Commentary, Drug Offense Sentencing, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack
Impressive website from NJ Commission
Kudos to the New Jersey Commission to Review Criminal Sentencing for its recently unveiled official website. In addition to being visually appealing and providing essential information about the Commission's work, this site serves a terrific resource on a range of sentencing topics through this very detailed page of resources and this document library. In addition, the website also includes this helpful page of links to other sentencing commission websites, many of which also merit praise for their broad and thoughtful coverage of various sentencing and corrections issues.
Contrasting sentencing politics
Commenting on my talk yesterday at Minnesota Law School about forging a new sentencing politics (details here), Professor Richard Frase rightly commented that the politics of sentencing at the state level is much more balanced than at the federal level. Professor Rachel Barkow makes the same astute point in her forthcoming Columbia article on "Federalism and the Politics of Sentencing."
A number of events today document the contrast between sentencing politics at the state and federal levels. The development and hearing on H.R. 1528, the federal drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and here and here), reveals that the "tough-on-crime" politics of recent years still has purchase in the federal system. But from the states we get the news from TalkLeft here that the New York State Assembly Codes Committee today defeated a bill to reinstate New York's death penalty, and news from Grits for Breakfast here that a conservative think tank in Texas is actively discussing "how to increase the effectiveness of alternatives to incarceration that will play a greater role in the state's criminal justice system."
More opposition to quick Booker fix
The House Subcommittee on Crime, Terrorism, and Homeland Security hearing on H.R. 1528, the drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and here), is still on-going. I hope to report more on this House hearing (and this morning's USSC hearing) in future posts (and in the meantime I notice that the written testimony of some of the witnesses is now linked at this official website).
In the meantime, I see that the White Collar Crime Prof Blog has this post lamenting that "this Booker fix is being aired without the opportunity of meaningful input by the judiciary, academics, practitioners, and others." That post also usefully pointed me to this (new?) webpage from the NACDL covering "Federal Sentencing After Booker" with materials and reports that all advocate against "quick fix" legislative responses to Booker. And the ACLU has this press release urging the rejection of H.R. 1528.
Bowman on the proposed Booker fix
Professor Frank Bowman, who advocated a go-slow approach in this testimony to the House Subcommittee on Crime, Terrorism, and Homeland Security during their February Booker hearing (highlights here), has drafted a terrific letter about the Booker fix provisions in the drug sentencing bill that is about to be the subject of House hearings (basics here, commentary here).
I have provided Frank's letter for downloading below, and here is one of many choice paragraphs:
As I and others suggested would be the case, the system of advisory guidelines created by Booker seems to be working acceptably, at least for the moment. Statistics compiled by the Sentencing Commission suggest that judicial compliance with the Guidelines remains virtually identical to the levels that prevailed before Blakely and Booker. Congress is not faced with an emergency calling for immediate legislation. Moreover, any legislation that would fundamentally transform a system as complex as the federal sentencing guidelines requires time and careful thought. It had been my understanding that many, perhaps most, members of this Subcommittee were of the view that a legislative response to Booker should await data on the operation of the advisory system and should be the product of careful development and wide consultation. Section 12 of the present Bill does not meet these criteria. It is premature, poorly conceptualized, and imprecisely drafted. And far from being the product of careful consultation with interested and knowledgeable persons and institutions, it was inserted into the present Bill mere days before the Subcommittee markup with no notice to or consultation with anyone.
April 12, 2005 in Booker and Fanfan Commentary, Drug Offense Sentencing, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (2) | TrackBack
A day for sentencing hearings
The US Sentencing Commission had a hearing scheduled for this morning which, as revealed in this notice and in the written testimony linked here, was intended to focus only on proposed guideline amendments concerning identity theft, antitrust and steroids offenses. But, with the news yesterday that the House is now working on a broad Booker fix (basics here, commentary here), I suspect the USSC hearing had some extra drama. I encourage anyone in attendance to report any interesting developments from this morning's USSC meeting.
The hearings inside the Beltway continue this afternoon with the House Subcommittee on Crime, Terrorism, and Homeland Security conducting at 1pm a legislative hearing on H.R. 1528, the drug sentencing bill which includes the Booker fix provisions. I believe that the hearing can be watched live via this official website. But, as I noted before here, the listed witnesses were clearly called to testify on the drug sentencing provisions of the bill, and it does not appear that anyone is to testify on the Booker fix provisions.
Following this afternoon's hearing, the House Subcommittee has scheduled a markup of H.R. 1528, the drug sentencing bill which includes the Booker fix and is called "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005," and also on H.R. 1279, the gang sentencing bill which is called the "Gang Deterrence and Community Protection Act of 2005." FAMM provides more details on both bills here and here.
UPDATE: The National Association of Criminal Defense Lawyers now has this coverage of the proposed Booker fix.
Questions about the brewing Booker fix
1. Did the Justice Department have a hand in drafting this Booker fix? At recent USSC hearings, DOJ representatives expressed possible interest in a "Bowman fix," but they seemed to disavow interest in mandatory minimum sentences. The Booker fix appearing now as section 12 of H.R. 1528 (linked here) is something of a combination of the Bowman fix and the original extreme Feeney Amendment; the proposed fix, in FAMM's words, "would effectively make the federal sentencing guidelines a system of mandatory minimum sentences."
2. Did the US Sentencing Commission have any warning concerning this Booker fix? The USSC was blind-sided by Congress with the Feeney Amendment, and I have heard the USSC has been working hard throughout the last year to build a more effective working relationship with Congress. I sensed that this relationship had been pretty positive in the post-Blakely and post-Booker periods, but the abrupt development of this Booker fix suggests that there is not perfect harmony inside the Beltway.
3. What is likely to become of this Booker fix? In the wake of Booker, the House has been the most fiery in its rhetoric about the need for a legislative response, while the Senate has seemed calm (almost to the point of indifference) about Booker. This proposal could just be more rhetoric that will have no traction in the Senate. Notably, this Wall Street Journal article about the bill reports that a "Senate Republican Judiciary Committee staff member said the staff members weren't consulted about the House bill and had no companion proposal in the works." But recall that, though clever procedural maneuvers, the backers of the Feeney Amendment got that legislation through Congress in just a matter of weeks despite reservations expressed by some Senators.
4. Will federal judges jump into the policy debate over a Booker fix? In this post back in November, I pondered whether judges might become actively involved in policy debates over the future of the federal sentencing system. And that was before Booker created a remedy that seem to be to the liking of most of the federal bench. Sadly, given the ugly judge-bashing in DC these days, I fear that the views of federal judges won't be given the respect they deserve even if they do actively engage in the post-Booker policy dialogue.
5. Is this Booker fix constitutional, or does it make Harris and/or Mistretta shaky? This Booker fix relies upon the Supreme Court's 5-4 decision in Harris, which allows judges to find facts that raise minimum sentences. But in light of Blakely and Booker, the votes of Justices Breyer and Scalia (and maybe Kennedy) are not certain if Harris is really put to the test through this Booker fix. Also, even if no current Justice has a changed view, the expected replacement of Chief Justice Rehnquict (or later Justice O'Connor) could prove to be a swing vote on this matter.
In addition, recall that Judge Panner in Detwiler concluded that the Feeney Amendment undermined key concepts that supported the Supreme Court's decision in Mistretta and thus rendered the whole federal system structurally unconstitutional (Detwiler is discussed here with commentary here). I think Judge Panner's Detwiler result and reasoning becomes even more compelling if this Booker fix becomes law.
6. Is this Booker fix a symptom of the post-Schiavo attack on the judiciary? Congress and the federal judiciary have been sparing over sentencing matters for a number of years, and this sort of Blakely/Booker fix was feared long before the recent Schiavo happenings. But it had seemed that Congress was prepared to let the post-Booker world develop for some months, perhaps because the most recent statistics from the USSC (which I hope will be updated ASAP) suggest that the post-Booker world looks a lot like the pre-Booker world. And yet, despite evidence suggesting not much needs fixing, suddenly in the midst of all the ugly judge-bashing rhetoric we get a dramatic sentencing proposal which reads like a massive broad-side attack on judicial sentencing discretion.
Readers with possible answers to any of these questions, or with additional questions about the brewing Booker fix, are encouraged to speak up in the comments.
April 12, 2005 in Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
Details concerning the brewing Booker fix
I am back home from the North Star state at a fully functioning computer and can thus now provide a lot more details about the Booker fix which is brewing in the US House of Representatives. Here are some basics:
1. The Booker fix appears as section 12 of H.R. 1528, a drug sentencing bill entitled "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005." A table of contents for the bill, with links to the bill's text, is available at this link.
2. The substance of the Booker fix in section 12 of H.R. 1528 is anything but subtle. The bill essentially forbids consideration of three dozen potentially mitigating factors as a basis for sentencing below the applicable guideline range, and it imposes significant procedural restrictions on any possible remaining grounds for downward departure (except based on a prosecutor's motion for substantial assistance or for fast-track treatment).
3. The House Subcommittee on Crime, Terrorism, and Homeland Security will conduct a legislative hearing on H.R. 1528 tomorrow at 1pm, and the four scheduled witnesses are listed at this official website. The descriptions of the witnesses suggest they were called to testify on the drug sentencing provisions of the bill; it does not appear that anyone has been called to testify concerning the Booker fix provisions.
4. Even before the addition of the Booker fix, FAMM has been tracking this drug sentencing bill and another bill with mandatory sentencing provisions entitled "The Gang Deterrence and Community Protection Act of 2005" (as detailed here). I provide for downloading below a section-by-section analysis of H.R. 1528, the drug sentencing bill which includes the Booker fix.
April 12, 2005 in Booker and Fanfan Commentary, Drug Offense Sentencing, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Notable death penalty stories
Though the Booker legislative developments have my attention, a few notable death penalty items merit mention. From the legislative arena, TalkLeft has all the details here on the planned vote in the New York Assembly Tuesday on whether the state's death penalty should be reinstated. And from the judicial arena, law.com has this fascinating article which explains that an "increasingly conservative 9th Circuit is growing less receptive to capital claims."
Monday's Booker news from the courts
I am back home from my quick trip to the North Star state, and soon I will provide a lot more details and raise a series of questions about the Booker fix which is brewing in the US House of Representatives. But let me first quickly report on some of the Booker news coming from the courts today:
- As the AP reports here, and as the White Collar Crime Prof Blog discusses here, Martha Stewart's bid to have her sentence reduced was rejected by "Judge Miriam Goldman Cedarbaum in a tersely worded three-page order."
- A lightning quick tour around the circuits reveals that every federal circuit save two of three issued a Booker opinion of some sort today (Thanks to AL&P for a few highlights here and here). Today's circuit rulings that appeared most notable based on my all-too-rapid review were from the Eighth Circuit in US v. Marcussen, No. 04-2935 (8th Cir. Apr. 11 2005) (available here) (addressing criminal history issues, harmless error and reasonableness), and from the Tenth Circuit in US v. Jeffrey, No. 04-8009 (10th Cir. Apr. 8, 2005) (available here) (addressing the scope of the prior conviction exception).
April 11, 2005
The (Booker) fix is in?
I received from various sources news that the House republicans have developed a Booker fix and attached it to a bill that will be considered in the House tomorrow. I have not yet seen the bill, but I do see that Families Against Mandatory Minimums has some details about this (unexpected?) development at this link.
I am at an airport kiosk, and likely won't be able to provide more details or links until much later tonight. In the meantime, folks in the know are encouraged to leave comments with details, and I hope to be able to discuss this major news more when I am back to a fully functional computer late tonight.
UPDATE: I see that the US Sentencing Commission has on its home page some details about its planned meeting and hearing tomorrow. I wonder if the USSC got any advance word of this seemingly sudden proposed Booker fix. It does not appear to be on the USSC's hearing agenda, and I do not see any mention of this issue in the testimony from the Justice Department officials scheduled to testify before the USSC tomorrow.
A call for SCOTUS action on Booker plain error
A few free minutes and a wireless network allows me to post quickly from Minnesota. On the flight in, I had a chance to read closely all the opinions in the 10th Circuit's recent plain-error ruling in Gonzalez-Huerta, and I recommend it highly to everyone following this area of law closely. I also have to spotlight the parting thoughts of Judge Lucero in Gonzalez-Huerta:
The division on this court over the proper approach to Booker cases pending direct review is replicated among the various circuit courts. This wide ranging circuit split results in the disparate treatment of criminal defendants throughout the nation. Such uneven administration of justice cries out for a uniform declaration of policy by the Supreme Court.
Off to Minnesota
As discussed more fully here, Monday I head to Minnesota to give this talk to a local ACS chapter. I likely will be off-line most of the day. But, continuing my trend of heavy weekend blogging (consider last Sunday's posting), I leave behind lots of recent copy. And, in addition to the weekend posts linked below, assembled and linked in this post are major developments from earlier this month.
- Summarizing all the Booker action
- Retroactivity contrasts and contentions
- Death penalty items around the blogsphere
- The blossoming sentencing literature
- Rethinking parole and its place in modern sentencing
- Forging a new sentencing politics
- Pondering the USSC's role after Booker
- The human face of retroactivity
The human face of retroactivity
I receive an enormous amount of e-mail and snail mail from prisoners and defendants and their families. I typically cannot find time to read most of this correspondence, let alone respond thoughtfully. But this mail serves as a constant and valuable reminder of the human face of all the issues covered on this blog.
This weekend I received a prisoner letter via e-mail that was particularly compelling in its discussion of the human side of retroactivity. I obtained permission from the author to share this letter, and it can be downloaded below. I most recently posted here about the doctrine of retroactivity, but this letter spotlights the humanity of retroactivity.
April 10, 2005
Pondering the USSC's role after Booker
As indicated here, the US Sentencing Commission has both a public hearing and a public meeting scheduled for this coming week. I am not sure of the full agenda for these meetings, though I know they will be in part concerned with proposed guideline amendments concerning identity theft and antitrust offenses that the USSC had previously promulgated for comments (available here).
I am hopeful that this USSC meeting will bring us more post-Booker sentencing statistics; but the consideration of specific guideline amendments has me pondering more broadly the role of the USSC post-Booker. I think interesting arguments might be made that, since the guidelines are now wholly advisory, the USSC ought to approach guideline amendments in a much different way. At the very least, given the centrality of the § 3553(a) factors in the wake of Booker, it seems important for the USSC to explain and justify its changes to the guidelines with greater explicit discussion of the factors and principles in § 3553(a).
I am not the only one pondering these issues. Indeed, Jim Felman, who is scheduled to testify at this week's USSC hearing, has authored testimony which (particularly in part 3) discusses thoughtfully how the USSC ought to proceed post-Booker. Among other interesting points, this testimony (which can be downloaded below) notes that the "Commission's consideration of the § 3553(a) factors when drafting and amending the guidelines is a critical aspect of the reasoning underlying judicial decisions to afford the guidelines substantial weight after Booker."
Forging a new sentencing politics
I am off to the Minnesota Law School tomorrow to give this talk to their American Constitution Society chapter about "how progressives and conservatives can come together on sentencing issues." A few months ago in posts here and here, I explored whether we might be seeing a "new right" on criminal sentencing issues, and I hope to develop some of these themes in my talk tomorrow.
Thanks to fellow bloggers, I see some recent newspaper items which spotlight the role that religion may play in forging a new sentencing politics. Via How Appealing, this article from the San Francisco Chronicle discusses recent comments of conservative Senators Santorum and Brownback questioning the death penalty. And via TalkLeft, this article from the Houston Chronicle discusses the development of a faith-based prison in Texas. As I have discussed in a number of prior posts, some of which are linked below, the connection between religion and sentencing is quite dynamic and could certainly fuel progressive reforms in corrections and in the administration of the death penalty.
- Is there a "new right" on criminal sentencing issues?
- More evidence of a new sentencing reform politics
- Sentencing and Religion
- Having faith in prisons
- Sister Prejean powerful perspective