April 20, 2005
On third thought from the Third Circuit
Last week I noted here that the Third Circuit in its (unpublished) King decision dropped a footnote with (intriguing and questionable) Booker dicta indicating that post-Booker enhancements "must rely only upon conduct admitted by the defendant or found by the fact finder based upon proof beyond a reasonable doubt." I was further intrigued, as detailed here, when the Third Circuit subsequently amended that footnote, but merely to fix a typo.
Giving this matter now a third thought, it seems that the Third Circuit is no longer comfortable with the substance of the footnote in King. As indicated by this order, the Third Circuit has "hereby withdrawn and vacated" its opinion in King. With King thus dethroned, it appears that the dicta in this footnote no longer reigns.
More examples of tough post-Booker sentences
News accounts of recent federal sentencings provides additional evidence that, as suggested here and here and here, there is little reason to fear that federal judges are consistently using their new discretion to "go soft" on federal offenders:
- This story from law.com discusses the 14-year sentenced given to a former plaintiffs attorney "for stealing $2 million in settlement money from his clients"; the White Collar Crim Prof Blog comments on this sentence here.
- This story from MSNBC discusses the 8-year sentence ($3.5 million restitution order) imposed upon an "aspiring physicist ... [for] his role in a spree of arson and vandalism that targeted gas-guzzling Hummers and other sports utility vehicles."
- This story from Tennessee provides a compelling report of a federal sentencing hearing which culminated in the imposition of a nearly 18-year sentence on a woman convicted to two armed robberies.
Updating the Booker summary
I noticed today that Frances Pratt has updated yet again, with decisions through April 17, her terrific extended outline of post-Booker decisions, which is available here and now runs 87 pages. In the same spirit, the opinions from 11th Circuit by Judges Carnes, Tjoflat and Barkett today in the Rodriguez denial of rehearing en banc (basics here) indirectly serves as a review of a number of post-Booker issues and developing doctrines. It is also a fun (though lengthy) read.
Intriguing sentencing items in the blogsphere
A tour around the blogsphere leads me to a number of interesting items on a range of sentencing and corrections issues:
- Thanks to Grits for Breakfast, I see here results from a poll indicating Texans want fewer non-violent offenders in prison.
- TalkLeft report here on the hearings of the new Commission on Safety and Abuse in America's prisons.
- How Appealing reports here on a series of interesting death penalty rulings coming from the Colorado Supreme Court.
Two for Tuesday from the 7th Circuit
Though the discussion of plain error coming from Eleventh Circuit judges is perhaps the most noteworthy of the Booker circuit developments Tuesday (details here), two opinions from the Seventh Circuit caught my eye and merit brief mention:
- In US v. Lewis, No. 03-4100 (7th Cir. Apr. 19, 2005) (available here), Judge Easterbrook expounds on Shepard and the use of criminal history under the guidelines, explaining along the way that "[w]hat matters is the fact of conviction, rather than the facts behind the conviction."
- In US v. Cunningham, No. 03-3006 (7th Cir. Apr. 19, 2005) (available here), Judge Coffey explains, in a decision that also has a brief discussion of reasonableness, why a Paladino remand is not required in a case in which the sentencing judge departed upward based on (uncharged) relevant conduct in a child pornography case.
April 20, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack
April 19, 2005
Circuit insanity and Booker
I see that the fine folks over at Appellate Law & Practice have this post headlined "Insanity and Booker" which is focused on a First Circuit case that involves an insanity issue and a Booker remand. (And Now the PRACDL Blog has this interesting post on this interesting First Circuit case.) But the "Insanity and Booker" title seems like a fitting descrition for all the circuit Booker action these days.
For example, as Appellate Law & Practice also notes here, today the Eleventh Circuit has given us 92 more pages on Booker plain error: Judge Carnes defends the Circuit's stingy plain error approach as part of the Court's denial of a rehearing en banc in Rodriguez (basics here); Judges Tjoflat and Barkett dissent from the denial of rehearing en banc. The full opinions in this new Rodriguez development are linked here (and don't forget to re-load your paper tray before hitting the print button).
Meanwhile, to complete our tour of the day's circuit Booker action, I see that Appellate Law & Practice also has posts on other First Circuit Booker cases here and here, and a Second Circuit case here. Also, I see more than a few notable Booker opinions from more than a few other circuits today (see, e.g., the work today from the Sixth Circuit here or from the Seventh Circuit here), which I hope time and energy might allow me to discuss later tonight.
UPDATE: I just noticed that Judge Tjoflat quotes at length from my blog post here on pages 51-52 of the latest Rodriguez opinion. I am inclined to say that this proves that some sanity prevails on the circuit courts. But, of course, Judge Tjoflat is writing in dissent and, as noted here, he has a history of being kind to the blog. Also, a quick read of Judge Carnes' opinion, which has many rhetorical flourishes, suggests that he strongly believes that most of the other circuits have gone a bit insane in their approaches to Booker plain error.
A punchy, though puzzling, perspective on parsimony
In the hours after Booker was handed down, I discussed the power of parsimony in highlighting that the very first sentence of 3553(a) instructs that federal judges "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in paragraph (2) of this subsection." This statutory mandate is often called the "parsimony provision," and Judge Cassell suggested in his original Wilson opinion (basics here, commentary here and here) that this statutory directive arguably "requires a court to impose a sentence at the low end of any applicable Guidelines range." Wilson Slip op. at p. 23.
Judge Kopf's (entertaining) Tabor opinion yesterday on crack sentencing (discussed here) suggests that the parsimony provision, which was barely ever discussed pre-Booker, is now getting plenty of attention. But, as indicated in footnote 14 in Tabor, Judge Kopf apparently is not too pleased with this development:
If a criminal defense lawyer invokes the "not greater than necessary" chant one more time as the raison d'etre for a sentence below the Guidelines, I am likely to throw up. What the hell does "not greater than necessary" really mean? Please do not refer me to 18 U.S.C. § 3553(a)(2) as if it provided a concrete answer for individual cases. Centering a sentence on the words "not greater than necessary" is the judicial equivalent of reading tarot cards — neither the legitimacy of the sentence nor the truth of the reading can be proved or disproved by rational means. More to the point, why should anyone trust one unelected judge like me to provide ad hoc definitions of this virtually meaningless and circular abstraction unencumbered by the lodestar of the Guidelines? Booker tells me to use discretion. It does not tell me to pick sentences out of the air by fixating on the phrase "not greater than necessary" as an excuse to sentence below the Guidelines.
Though this discussion of the parsimony provision is a wonderful rhetorical flash of legal realism, I must note that these comments by Judge Kopf are a bit jarring within an opinion that otherwise heavily stresses the importance of judges following Congress's sentencing instructions. After all, the parsimony provision is a statutory mandate enacted by Congress as part of the Sentencing Reform Act two decades ago, and it has never been altered. (In contrast, neither the crack guidelines nor most other specific provisions of the "lodestar of the Guidelines" have ever been formally enacted by Congress).
Though Judge Kopf may struggle with Congress's statutory instruction in 3553(a) that judges "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment]," it is the obligation of all judges at sentencing to try to give effect to this mandate unless and until Congress changes the terms of 3553(a). Moreover, when the US Sentencing Commission and others seek to judge the status of post-Booker sentencing, they should be sure to keep in mind that this statutory obligation now controls federal sentencing decision-making in individual cases.
A capital term for SCOTUS
This AP report about today Supreme Court argument in Bradshaw v. Stumpf (background here from SCOTUSblog) confirms my impression that the Justices were interested in this case primarily because it involves a death sentence:
The justices questioned both lawyers on whether it would have made a difference in Stumpf being sentenced to die if the Ohio court had known that he wasn't the shooter. "The concern that I have is not with the guilty or innocence plea here, but it's with the sentencing," Justice David Souter said. Justice Stephen G. Breyer said, "It could be that people don't want to impose capital punishment unless they know that someone killed a person. So it could have made a difference."
The article also notes that Stumpf is just "one of nine death penalty cases that the Supreme Court plans to hear this spring." Considering also that a number of capital cases occupied SCOTUS in the fall (while the Court's overall docket continues to shrink), I find it remarkable and noteworthy how much time and energy the Supreme Court is spending on death penalty litigation these days. (Dare I call these developments evidence of a "legal culture of death" at the Supreme Court?)
I have noted before in this post my amazement with how much Supreme Court time (not to mention, of course, lower court time) gets consumed by the death penalty. And in this post about the Deck case now before the Court, I noted how much work the Supreme Court created for itself once it started seriously regulating capital sentencing procedures three decades ago following its landmark rulings in Furman and Gregg. And since, as I noted here, there are some jurisprudential parallels between the developing Apprendi/Blakely line of non-capital sentencing regulations and the Furman/Gregg line of capital sentencing regulations, I cannot help but wonder if we might someday expect to see numerous non-capital sentencing cases before the Supreme Court each term. Gosh know, as this blog documents, there are no shortage of post-Blakely and post-Booker legal questions that need to be answered.
Below are a few prior posts that have discussed the SCOTUS docket and related issues:
Final version of academic letter assailing brewing Booker fix
Professor Michael O'Hear late yesterday finalized the thoughtful letter he developed criticizing the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and linked here). A total of 60 law teachers signed on within the span of about 24 hours. The final version of this letter, reflecting all the signors, is available for downloading below.
Today's Supreme Court action
Though the Supreme Court did not decide today any of the three criminal cases that Mike at Crime & Federalism eagerly awaits, it is hearing argument on two criminal cases that have potential sentencing implications. SCOTUSblog, which as always has the best coverage of SCOTUS developments, provides background on these cases here.
Washington state's Blakely fix
Last Friday, the Governor of Washington signed the state's Blakely fix bill, which can be read here. Here is how this legislation was describe to me in an e-mail:
The law, which takes effect immediately, Blakely-izes the Washington state guidelines. It lengthens the former list of aggravators to include all "common law," unenumerated aggravators that had been judicially created and approved over the years, but then says that the list is now exclusive. Most aggravators, if contested, are to be proven during the trial. The trial judge, however, may hold a separate sentencing hearing with respect to four named aggravators if certain conditions are met.
With this legislation, Washington joins a growing number of states willing to give effect to Blakely by providing for jury determinations of aggravating factors. And there are a number of interesting facets to this legislation. For example, Section 5 provides for the state sentencing commission to do a comprehensive review of the state sentencing system and "submit its findings and proposed legislation to the legislature no later than December 1, 2005."
Also, in Section 3, this Blakely fix legislation provides through subsections (2) (b), (c) & (d) for judges to be able to increase sentences without jury findings based on a range of aggravating factors relating to criminal history. However, the constitutionality of this procedure depends on a broad reading of the Almendarez-Torres "prior conviction exception." And, just the day before this fix was enacted, the Washington state supreme court in Hughes (basics here, commentary here) seemed to give the Almendarez-Torres "prior conviction exception a narrow reading. Thus, the Washington state's Blakely fix may already need fixing.
Sentencing in the morning papers
A quick tour of newspaper stories this morning reveals a set of interesting sentencing articles:
- This article in the Brown Daily Herald uses the ordered resentencing of former Providence Mayor Vincent "Buddy" Cianci (discussed here) as the basis for a broad examination of the Booker ruling and its impact.
- This article from California notes the enormous sums the state is spending on guarding comatose inmates while examining more broadly a range of corrections issues.
- This article from Delaware reports on a federal sentence in a weapons case that was below the guidelines range (though it is unclear whether the sentence involved a departure or a variance).
April 18, 2005
Another (and different) view on the crack guidelines
One of the many interesting post-Booker developments in the district court has been the discussion of crack sentencing and the purposes of punishment in opinions from Judge Sifton in Simon (discussed here) and Judge Adelman in Smith (discussed here). Today brings a contrasting perspective on these issues from Judge Richard Kopf in US v. Tabor, No. 4:01CR3215 (D. Neb. Apr. 18, 2005), which can be downloaded below.
Judge Kopf a few months ago explained in Wanning (discussed here), through a sharp (and often comical) opinion, why he gives the guidelines "substantial weight even though the are now advisory." In another sharp (and often comical) opinion in Tabor, Judge Kopf concludes "that the crack Guidelines, like all other Guidelines, should be given heavy weight after Booker." Tabor is a must-read for a number of reasons, although prosecutors are likely to be more pleased than defense counsel with the outcome. Because a brief summary cannot do justice to all the post-Booker sentencing aspects of Tabor, I will content myself to quote a footnote from Tabor which weighs in on a related raging legal debate:
Given the recent attacks on the federal judiciary by a few members of Congress, I sometimes wonder why I ought to care about differentiating between the proper role of judges and legislators. When I get in that pessimistic frame of mind, the long view of history persuades me that "this too shall pass" and that the work is worth the toil. In the face of such childish complaining, there is also a certain self-satisfaction in behaving as an adult.
Circuits back to Booker business
A quick afternoon tour of the federal circuit websites reveals that every circuit that has posted opinions today has at least one ruling addressing Booker or a related sentencing issue. As detailed in this post, I have given up trying to follow all the circuit Booker action; I will only note rulings that, for whatever reason, catch my eye or that readers suggest are especially noteworthy or interesting. So far, these circuit court rulings have caught my attention today:
From the Fourth Circuit, the severity of the sentence seems noteworthy in US v. Robinson, No. 04-4388 (4th Cir. Apr. 18, 2005) (available here). Robinson, a young man with an IQ measured at 70 who was abused as a young child, was convicted at trial of a string of armed robberies committed when he was 16 years old. The district court sentenced Robinson to 32 years' imprisonment, but the Fourth Circuit was forced to remand for resentencing because it determined that his many convictions under § 924(c) required statutory minimum sentences adding up to 182 years. The Fourth Circuit commented: "While this result may seem manifestly unjust given Robinson's age and well-documented intellectual limitations, it is the result mandated by Congress." I wonder, especially in light of Roper and Atkins and points I made in this post, if Robinson might on remand challenge his sentence on Eighth Amendment grounds. Amicus brief anyone?
From the Ninth Circuit, a post-Booker sentence affirmance seems noteworthy in US v. Cortez-Arias, No. 04-10184 (9th Cir. Apr. 18, 2005) (available here), principally because Booker is not really addressed. In Cortez-Arias, the Ninth Circuit affirms a 16-level sentencing enhancement in an illegal re-entry case based on its conclusion that a prior conviction qualified as a "crime of violence." In Cortez-Arias, the Ninth Circuit (which is still debating plain error en banc) never examines whether the district court would have, in its discretion, imposed the enhancement under advisory guidelines and it simply asserts in a footnote: "Because the sentencing enhancement we address is based only on the fact of a prior conviction, our decision is unaffected by the Supreme Court's recent holding in United States v. Booker, 25 S. Ct. 738 (2005). See United States v. Moreno-Hernandez, 397 F.3d 1248, 1255 n.8 (9th Cir. 2005)." Besides the fact Booker is mis-cited, I checked Moreno-Hernandez to discover it remanded for "advisory" reconsideration; I am not sure why the same course should not have been followed in Cortez-Arias. (I suppose it is possible counsel did not ever raise Booker on appeal, but that seems unlikely.)
From the Eleventh Circuit, a post-Booker reversal seems noteworthy in US v. Smith, No. 02-13211 (11th Cir. Apr. 18, 2005) (available here). In Smith, the district court found that the defendant's non-Hodgkin's lymphoma, which weakened his immune system, justified a 20-level downward departure so that the defendant could be sentenced to time served. The Eleventh Circuit noted that defendant "has continued to work as a Dade County water and sewer technician ..., and is thereby exposed to countless bacteria on a daily basis [and also] sponsors musical promotional parties attended by hundreds of people, again subjecting himself to the risk of exposure to bacteria, virus and fungus infections." It thus held, without any express discussion of the 3553(a) factors, that "[r]egardless of whether, in a pre-Booker world, the sentencing guidelines are interpreted as mandatory, or now, in a post-Booker world, they are considered advisory, it was unreasonable and/or clearly erroneous for the district court to depart downwardly as far as it did in this case."
Update on academic letter concerning H.R. 1528
As detailed in this post, Professor Michael O'Hear has drafted a thoughtful letter criticizing the Booker fix and drug sentencing provisions of H.R. 1528, a bill moving through the House of Representatives (basics here, commentary here and here and linked here). Already 50 law teachers have agreed to sign their name to the letter, and Michael plans to send the letter off at the close of business today. If you are interested in adding your name to the letter, which can be read here, please contact Michael via e-mail at this link no later than 4:30pm this afternoon.
The legal attack on lethal injection
With thank to How Appealing for the tip, I see that USA Today has this interesting article discussing the "the latest legal challenge to lethal injection, the nation's most used but increasingly controversial form of execution." The piece discusses a constitutional challenge to lethal injection unfolding in a Kentucky case, which comes on the heels of new medical evidence that some inmates might experience awareness and suffering during their execution (discussed here at DPIC's website).
I was intrigued to see the article's report that Fordham Professor Deborah Denno will be testifying on behalf of the prisoners in this Kentucky litigation. The USA Today article also makes reference to a 2002 article she wrote on lethal injection as part of this symposium on capital punishment that I helped organize for the Ohio State Law Journal. That article, which can be accessed here, is the most comprehensive examination of lethal injection that I have seen in the law review literature (counting charts and appendices, it runs 200(!) journal pages). The prisoners in Kentucky have thus ensured that the court is getting truly expert information about this method of execution.
Additional information about methods of execution can be found at this page from the Death Penalty Information Center. The history of execution methods is a fascinating story, as detailed in discussions here and here about the electric chair, and this discussion of older execution techniques.
The Booker GVRs are back
After a two week break, the Supreme Court is back in business today. And, as has become its custom over the last three months, Mondays at the High Court now start with an order list that includes a bunch of Booker-inspired GVRs. This morning I count nearly 30 such GVRs, and now I am thinking we might have over 1000 such orders before this term is finished. (Previous GVRs can be tracked down through this post.)
Also, as reported here by SCOTUSblog, the Supreme Court today "refused to reopen the 1998 decision in Almendarez-Torres [as it] denied a motion to file a petition for rehearing" in that case. (That petition was previously discussed here.) Thus, it appears some other case will be needed to satisy Justice Thomas' desire for the to "consider Almendarez-Torres' continuing viability."
Big sentencing week at OSU and elsewhere
As documented by my weekly wrap-ups (recent examples here and here), every week now seems big in the sentencing world. And this coming week has a number of events at Ohio State and possible developments elsewhere that has me geared up for more major doings:
- As noted here by SCOTUSblog, the Supreme Court will issue an Order List on Monday, and opinions in one or more argued cases on Tuesday.
- As detailed here, Professor Jeffrey Fagan is scheduled on Tuesday to give Ohio State's annual Reckless Lecture on "Science and the Illusion of Deterrence in the Death Penalty: Cold Fusion All Over Again." This talk is especially timely given recent debates, spotlighted here and here, over the validity and implication of new death penalty deterrence literature.
- As detailed here, Professor Austin Sarat is scheduled on Friday to give OSU Moritz College of Law Schwartz Lecture on "Mercy, Clemency, and Capital Punishment: Two Accounts."
- Throughout the week in Washington, we may see further House consideration and additional public debate over the Booker fix provisions of H.R. 1528 (basics here, commentary here and here and linked here).
- Throughout the week at OSU, as detailed here, Larry Hammond, who serves as the Chair of the Arizona State Bar Indigent Defense Task Force, Chair of the Arizona Justice project, and is the President of the American Judicature Society, will be visiting a Visiting Interdisciplinary Practitioner in Residence.
April 17, 2005
Academic input on a not-so-academic Booker fix proposal
Last week in this post about the Booker fix provisions of H.R. 1528 (basics here, commentary here and here and linked here), and I urged persons concerned about the congressional response to Booker to help ensure that rhetoric does not eclipse reality as the legislative process unfolds. Taking up my suggestion, Professor Michael O'Hear has drafted a thoughtful letter criticizing the Booker fix and drug sentencing provisions of H.R. 1528, which can be downloaded below. (Some other criticisms of the bill, which merits a lot of criticism, are discussed and linked here.)
Michael's letter is written on behalf of "law teachers, most of whom specialize in criminal law and procedure," and he would like to add the name of professors who "agree that the Booker fix bill represents bad policy — or that it should, at least, be removed from the legislative fast track and subject to closer scrutiny." Professors (including, in my view, adjuncts) who are willing to have their names added to the letter should contact Michael via e-mail with this link (and be sure to include your name, title, and institution).
April 17, 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
More interesting district court Booker action
After a few weeks of more Booker circuit action than I can handle (evidenced here), I am pleased to see that the district courts are again contributing some interesting opinions in the post-Booker world. As detailed here, Judge Gertner at the end of last week expounded on acquitted conduct post-Booker with a potent decision in US v. Pimental, No. 99-10310-NG (D. Mass. Apr. 15, 2005). And now I see on-line a number of other interesting district court opinions from last week:
- In US v. Turner, NO. 3:03-CR-22(02), 2005 U.S. Dist. LEXIS 6368 (N.D. Ind. Apr. 13, 2005), the district court, addressing a Paladino remand from the Seventh Circuit, sets out in rigorous and methodical form how the factors in 3553(a) inform the court's view of the defendant's sentence. The court concludes that, "if required to resentence Mr. Turner in light of United States v. Booker, 125 S. Ct. 738 (2005), the court would reimpose the original sentence."
- In US v. Agostini, No. S17 00 Cr. 237, 2005 U.S. Dist. LEXIS 6377 (S.D.N.Y. Apr. 13, 2005), the district court considers a broad range of post-Booker sentencing issues in a lengthy and interesting sentencing memorandum which explains the court's conclusion that "a sentence higher than that yielded by the Guidelines range would be warranted in this case to adequately meet the sentencing goals of punishment, deterrence, and rehabilitation appropriate to this defendant and the extreme gravity of the crimes of which he was convicted."
- In US v. Carmona-Rodriguez, No. 04 Cr. 667, 2005 U.S. Dist. LEXIS 6254 (S.D.N.Y Apr. 11, 2005), the district court carefully reviews the Booker sentencing factors on the way to concluding that, because of "(1) the low probability that Carmona-Rodriguez will recidivate and (2) her need for ongoing medical monitoring and treatment, ... a non-Guidelines term of incarceration is warranted." In this ruling, the district court spotlighted recent district court decisions in Nellum (discussed here) and Simon (discussed here) which stressed that older offenders are less likely to recidivate, and the court asserted that the imposed "non-Guidelines sentence is proportional to those imposed by the Nellum and Simon courts."