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April 30, 2005

Lots of interesting reports from the sentencing front lines

The newspapers are filled with a number of interesting reports of recent federal sentencings.  Here are links to intriguing stories of sentences apparently imposed within the guidelines from Montana involving embezzlement and from Texas involving bomb-making and involving child pornography.  Also in the papers are intriguing stories of sentences apparently imposed below the guidelines from Montana involving securities fraud and from Maine involving bank robbery (in a case with an elaborate legal history as detailed here).

Relatedly, this article details that, following the First Circuit's Booker remand for former Providence Mayor Vincent "Buddy" Cianci (which still seems a bit hinky to me as explained here), Cianci's lawyers are requesting a 29-month reduction in Buddy's sentence.   If Cianci gets a big break upon resentencing, I will again be wondering, as I did here, whether white-collar offenders as a class are doing particularly well in the post-Booker world.

April 30, 2005 in Booker and Fanfan Commentary, Booker in district courts | Permalink | Comments (3) | TrackBack

Helpful Booker analysis from the defender blogs

The federal defender blogs, which can all be accessed at this link, have a number of new posts with a range of important Booker insights:

April 30, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

A more perfect death penalty in Massachusetts?

The introduction by Massachusetts Governor Mitt Romney of a bill to bring capital punishment back to the state (first discussed here) may serve as an interesting test case for what arguments drive support and opposition to the death penalty.  An AP story here reports that "a day after unveiling a death penalty bill he says will make it virtually impossible to execute the innocent, Romney told reporters safeguards in the legislation are already swaying some lawmakers."  That article suggests that, at least for some legislators, concerns about mistakes and not basic moral opposition to state killing is key.  Meanwhile, this Boston Globe story spotlights the impact of both national and state politics on the development and fate of Romney's bill.

Gideon at the Connecticut Law Blog does a terrific job summarizing and analyzing key elements of Romney's proposal in this post.  But Gideon does not discuss what for me are the biggest practical issues: cost and relative efficacy.  New York has spent nearly $200 million on its death penalty system over the past decade without a single execution, and the Massachusetts system likely could expect to have a similar cost profile.  Though there is a robust debate over whether the death penalty saves lives, I have to think Massachusetts could have a much bigger impact on crime by putting $20 million each year into more police on the streets or investing in other social services. 

Consider also the fact that, according to statistics I found on the web, almost twice as many people are killed in Massachusetts by drunk drivers than by murderers, and the data on rape and other violent crimes suggest that Romney's bill may distract from more pressing criminal justice issues in Massachusetts.

UPDATE: Gideon has updated his post to review some of the capital cost issues and to provide interesting crime numbers in Connecticut (and I would also add that statistics show Connecticut, like Massachusetts, loses many more lives to drunk drivers than to murderers).  Gideon's expanded post provides great links to important discussions of the costs of the death penalty, most notably this recent testimony by the DPIC's Richard Dieter.  Now, if only Gideon or someone else might guestimate how much money has been spent in all the wrangling over the Michael Ross case.

April 30, 2005 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

April 29, 2005

8th Circuit decides Pirani plain error en banc

I just got the word that late today the Eighth Circuit released its long-awaited plain error decision in US v. Pirani, No. 03-2871 (8th Cir. Apr. 29, 2005) (available here).  I suppose I should be thankful it is only 36 pages, and I am thankful the 8th Circuit's website has this summary:

Applying Booker to a sentencing error which defendant failed to preserve in the district court, the court en banc follows the decisions of the First, Fourth, Fifth, and Eleventh Circuits in holding that a remand for resentencing is not required unless the defendant meets his burden to demonstrate plain error prejudice under controlling Supreme Court precedents, that is, a "reasonable probability" that the district court would have imposed a more favorable sentence under the advisory guidelines regime mandated under Booker; as defendant failed to meet that burden, his sentence is affirmed; challenges to cross-examination of defense witness rejected; district court did not abuse its discretion in admitting a tape-recording. Judge Heaney, dissenting. Judge Morris S. Arnold, with whom Judge Smith joins, dissenting. Judge Bye, concurring in part and dissenting in part. [PUBLISHED] [Opinion of the Court En Banc. Loken, Chief Judge, Author]

April 29, 2005 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

A reasonable(?) approach by the Fourth Circuit

An intriguing decision by the Fourth Circuit today in US v. Bartram, No. 99-4566 (4th Cir. Apr. 29, 2005) (available here) provides yet another Booker pipeline issue to think about.  Or, put another way, Bartram demonstrates again the opaqueness of Justice Breyer's final paragraph in the Booker remedial opinion (as I complained in this post as soon as I read the "pipeline paragraph").

In Bartram, the Fourth Circuit decides the defendant could not make out a Sixth Amendment violation because he (indirectly) admitted to the sentencing judge's drug quantity findings.  For Judge Niemeyer, who wrote a separate opinion concurring in Bartram, this means that under the Fourth Circuit's plain error approach in White, the defendant would have to establish prejudice (which he can't) to obtain a resentencing.  But Judge Widener, who is technically writing for the court, takes a different route by drawing upon Justice Breyer's final sentencing in the "pipeline paragraph."  According to Judge Widener, "it is sufficient 'to review [the] sentence for unreasonableness' [and we] conclude the sentencing decision of the district court in this case [is]reasonable." Interestingly, Judge Gregory wrote separately just to note he only concurs in the judgment.

In the course of his opinion for the Court, Judge Widener has some extended dicta about reasonableness review (although his use of the pronoun "I" leads me to conclude he is writing on his own behalf only).  Here some of the reasonable dicta:

I think the [Supreme] Court required the courts of appeals to review the actions taken by the district courts in sentencing to be reviewed under the standards of the system outlined in Booker and, if its acts were reasonable, to affirm the sentence of the district court.  I would define reasonable under ordinary English usage as: being in agreement with right thinking or right judgment.  Webster's Dictionary, 3rd, p.1892.

But, then again, the first phrase of Judge Niemeyer's concurrence states: "I am pleased to concur in most of what Judge Widener has written"; perhaps, then, this dicta is for the Court.  Just one more post-Booker head scratcher.

Have a reasonable weekend.

April 29, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

8th Circuit approves broad sex offender exclusion statute

Mike at Crime & Federalism is already blogging up a storm about the Eighth Circuit's decision today in Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005) (available here), which upheld against numerous constitutional challenges Iowa's legislation which "prohibits a person convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility."  This AP report about the case and Mike's first two powerful posts here and here provide plenty of food for thought even before I have had a chance to read the full opinion.

This weekend, after I get a chance to read the 8th Circuit opinion, I hope to do a post on what seems to be an ever-growing "sex offender panic."   In the meantime, I have linked below some notable prior posts about sex offender sentencing:

April 29, 2005 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Pleas, pleas Mr. Posner

I hope on a Friday afternoon I will be forgiven for a post title that makes a weak stab at invoking this great song.  But two circuit opinions today address interesting claims that flow from federal plea dynamics (which, though ticking down in the latest 2003 USSC statistics, still account for over 95% of federal convictions).

From the Seventh Circuit, Judge Posner gives us US v. Cook, No. 04-1923 (7th Cir. Apr. 29, 2005) (available here) which discusses plea issues in a distinctive, "casual friday" kind of way (and includes a strange analogy to ordering a hamburger which, I am inclined to speculate, perhaps resulted from the defendant's surname making Judge Posner hungry).  Among other aspects of the amusing decision, Judge Posner indicates the defendant raised one of those "ubiquitous" Booker claims.

On a somewhat more serious note, I see from Appellate Law & Practice here that the Fifth Circuit today in US v. Munoz, No. 04-40481 (5th Cir. Apr. 29, 2005) (available here) concluded that the government breached its plea agreement by supporting an enhancement recommended in a presentence report; the Fifth Circuit remanded for resentencing before a different judge.

April 29, 2005 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Dynamic death penalty debates

I am back at my office desk, and though I am still thinking about ideas developed during this terrific Illinois Booker Roundtable (some of which I may get a chance to share shortly as a participant in this teleseminar with Judge Cassell and Professor Kerr), I see that there are a number of dynamic death penalty debates on-going in various fora.

In Massachusetts, as this New York Times article details, "Governor Mitt Romney introduced a bill on Thursday that would bring back capital punishment to Massachusetts, and would do so by creating a death penalty that he said was virtually foolproof."  This bill is based on the interesting report produced by a death penalty commission that Romney created and charged with devising a  "foolproof" death penalty system for Massachusetts.  (That report, which was the basis for my very first blog post, can be accessed here.)

In Iowa, as detailed in this article, the state Senate has been debating reinstating the death penalty as part of a sex offender sentencing bill, which was developed in response to the abduction and slaying of a 10–year–old Cedar Rapids girl.  And just as the state death penalty proposal stalled, Iowa Senator Charles Grassley, as detailed in this article, introduced federal legislation that would make the death penalty applicable in the federal conviction of sex offenders who kill children.

These state debates have prompted a blogger debate about the death penalty involving Tung Yin and Christine Hurt.  The blogsphere is also keeping up with the latest Connecticut developments concerning death penalty volunteer Michael Ross: Gideon provides the latest news and Norm Pattis provides very sharp commentary.

Finally, I was intrigued to see, from Nevada, this very article detailing that the "state Senate voted 15-6 Thursday to give final legislative approval to a measure bringing Nevada into line with a U.S. Supreme Court ruling that abolished the death penalty for killers who commit capital crimes as minors."  It is interesting to think about whether this vote, which seems mostly symbolic in the wake of Roper, might be viewed as bolstering the Court's arguably shaky claims in Roper about a national consensus against executing juveniles.

April 29, 2005 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

USSC FY 2003 data now available!

Because I am spent from participating in this terrific Illinois Booker Roundtable, and also because I need to get some rest in order to be an effective participant in this Friday teleseminar with Judge Cassell and Professor Kerr, I sadly won't be able to spend all night mining the US Sentencing Commission's 2003 Sourcebook of Federal Sentencing Statistics, which just appeared on-line at the USSC's website.  But I am very excited to have a huge data set (from the days when guidelines were mandatory) to keep me busy until we get the next USSC release of post-Booker data.

As the USSC explains here, the 2003 Sourcebook of Federal Sentencing Statistics presents descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data regarding "cases sentenced both before and after enactment of the PROTECT Act, Pub. L. 108-21. Seven months of the fiscal year were prior to the effective date of the Act (October 1, 2002–April 30, 2003), and five months were after (May 1, 2003–September 30, 2003)."

I hope readers might use the comments to spotlight statistics from the 2003 Sourcebook that seem particularly noteworthy.  I was struck by the fact that over 70,000 cases moved through the system, and I thought the following figures provide a fascinating snapshot of multiple years of basic data:

April 29, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Lil' help for Lil' Kim

I found amusing this story reporting that "Rapper Lil' Kim has issued a set of guidelines to fans writing letters of support ahead of her sentencing for lying to a grand jury, noting many already submitted are more likely to appall rather than persuade the judge."  As the article details, instructions posted on Lil' Kim's fan website ask her fans "to be respectful of [SDNY US District] Judge Gerard Lynch and the criminal justice system, [and they] ask fans to refrain from drawing comparisons to Martha Stewart."  I also noticed that the fan website suggested that supporters "try to write in a proper format (no symbols, abbreviations, all caps lock)."  DAT'S GR8 ADVICE 4 BLOGGERS 2. ;-)

April 29, 2005 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

April 28, 2005

SCOTUS GVR in an appeal waiver case

Following up my post yesterday concerning appeal waivers in the wake of Booker, a lawyer e-mailed me the following note:

SCOTUS' most recent order list included a GVR on a Booker/appeal waiver case (Morris v. U.S., 04-9299) in which the cert petition (available for download below) argued in part that enforcing appeal waivers against Booker claims would effect a miscarriage of justice.  Being in the Third Circuit, I expect there will be a prompt remand for resentencing.  SCOTUS could easily have denied cert if it thought the appeal waiver issue to be a clear one.

Though I don't think one can draw a principle of law from a Supreme Court GVR, this news is still interesting (and the petition is a worthwhile read).

Download appeal_waiver_cert_pet.pdf

April 28, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Third Circuit clarifies(?) its unique approach to Booker pipeline cases

I am connected after a terrific day participating this afternoon in this terrific Illinois Booker Roundtable. I learned so much from the judges and others involved in the event, but my Illinois reflections may have to wait until the weekend because I must first catch up on the day's sentencing news. Let me begin with a report on the Third Circuit's en banc ruling today in US v. Davis, No. 02-4521 (3d Cir. Apr. 28, 2005) (available here). In Davis, the Third Circuit finally explains (sort of) its distinctive approach to Booker pipeline cases.

Recall that the Third Circuit, without detailing its exact approach to plain error issues, has been remanding seemingly every case for resentencing with this standardized explanation: "In light of the determination of the judges of this court that the sentencing issues appellant raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in accordance with Booker." See, e.g., today's ruling in US v. Bruce, No. 02-3316 (3d Cir. Apr. 28, 2005) (available here).  In Davis, the Third Circuit talks about a number of Booker pipeline issues and seems to indicate that it is following the Sixth Circuit's Barnett "presumed prejudice" approach to plain error claims.

Based on a quick read, I am not entirely sure the Third Circuit in Davis effectively or completely justifies what has seemed like a "remand them all" approach to sentencing appeals raising Booker claims.  But, these closing paragraphs in Davis suggest the Circuit believes that interests of fairness and uniformity are being served by its practices:

Booker applies to all cases pending on direct review.  By remanding, we ensure that each defendant to whom Booker applies is sentenced accordingly.  This approach results in uniform treatment of post-Booker defendants on direct appeal, fostering certainty in the administration of justice and efficient use of judicial resources. Moreover, as the Court of Appeals for the Second Circuit has noted, "correction of error in the context of sentencing does not precipitate . . . burdensome and often lengthy consequence[s]" on remand. United States v. Crosby, 397 F.3d 103, 117 (2d Cir. 2005).

In this opinion, we express no view on waiver or alternative sentences. We will continue to review each appeal individually.  Appellants have been directed to state whether they wish to challenge their sentence under Booker. For those who do not, we consider the appeal on its merits.  Where an appellant raises a Booker claim and establishes plain error, however, we will decide claims of error related to the conviction, vacate the sentence, and remand for consideration of the appropriate sentence by the District Court in the first instance.

April 28, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Big Ten Booker tour continues

I will likely be off-line throughout the day as I travel to the University of Illinois College of Law to participate in this terrific "roundtable" organized by Professor Margareth Etienne entitled "The Impact of Booker: A Dialogue Between Scholars and Practitioners."  (This trip rounds out my Big Ten Booker month after my sojourn to Minnesota Law School a few weeks ago; discussed here and here.)  The participants and plans for the Illinois roundtable have me very excited, and I hope late tonight to report on what I learn in Champaign.

In the meantime, as is my practice, I have assembled below links of major posts from what has already been a pretty busy week:






April 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Blakely and Booker analyses around the blogsphere

A number of blogs have recent posts with detailed analyses of Booker and Blakely developments:

April 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

More on creative sentence for football fan

As first discussed here, a Wisconsin state judge recently gave a theft offender the choice of "spending 90 days in jail or donating her family's prized Packer tickets to the Make-a-Wish Foundation for one year."  Following up this story, which is apparently making national news, this well-done article quotes a number of experts concerning the legality and appropriateness of this unusual sentence (which the defendant apparently has no plans to challenge).  The article also lists a number of other unusual sentences imposed in recent years and provides this poll where you can vote on whether you would give up the tickets or spend 90 days in jail.

April 28, 2005 in Criminal Sentences Alternatives | Permalink | Comments (2) | TrackBack

April 27, 2005

High profile 2d Circuit Crosby remand

Though I do not see the decision on-line, the papers are reporting here that the Second Circuit yesterday entered a Crosby remand so that District Court Judge Janet Bond Arterton can consider resentencing former Bridgeport Mayor Joseph Ganim, who is serving nine years in prison for corruption.  According to the AP report:

Ganim's attorneys would not say Wednesday exactly what sentence they will request, but have said in the past that Ganim's sentence should be reduced from nine years to three. Prosecutors declined to comment, other than to say their request for a review was standard practice in the wake of [Booker].... Prosecutors asked the 2nd Circuit Court of Appeals in February to send Ganim's case back to Arterton.

UPDATE: Additional coverage of Ganim's case can be found here.

April 27, 2005 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

Appeal waivers in the wake of Booker

Thanks to Appellate Law & Practice I see here that the Second Circuit today, in addition to its notable Fagans ruling (discussed here), issued a brief opinion on appeal waivers in US v. Morgan, No. 03-1316 (2d Cir. Apr. 27, 2005) (available here).  Morgan, in both outcome and approach, is similar to the Seventh Circuit's recent discussion of appeal waivers (per Judge Posner) in Bownes (available here).  Both decisions essentially say that defendants received benefits with the pre-Booker plea bargain that induced the waiver of appeal rights, and the legal change ushered in by Booker does not provide a legitimate basis for a defendant to now upset that bargain.

A number of weeks ago, I discussed at length in this post the law, policy and practice of appeal waivers in the wake of Booker.  Seeing the approach taken in Morgan and Bownes has me concerned that circuit courts are examining appeal waivers only from a defendant perspective and not from a system-wide perspective.  As explained in my prior post, whatever one thinks of claims that defendants should or should not be held to pre-Booker deals with appeal waivers, there is a separate argument, based in congressional-intent concepts and drawing on Justice Breyer's remedial work in Booker, that it is against public policy to let prosecutors and defendants completely opt-out of appellate review because Congress strongly favors the "retention of sentencing appeals ... to iron out sentencing difference," Booker, Breyer slip op. at 21.

As I suggested in my prior post, even if this public policy argument does not call for declaring appeal waivers unenforceable post-Booker, I think it does suggest that circuit courts should now at least review all appealed sentences for reasonableness (as the Eighth Circuit did in Killgo; details here).  And, again because of Justice Breyer's strong advocacy of congressional interest in appellate review, this public policy argument perhaps also suggests that district courts post-Booker should reconsider the appropriateness of accepting pleas with broad appeal waivers.

April 27, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

The 2d Circuit addresses more pipeline issues and the scope of the prior conviction exception

Today in US v. Fagans, No. 04-4845 (2d Cir. Apr. 27, 2005) (available here), Judge Jon Newman writing for the Second Circuit addressed a number of Booker "pipeline" issues that were not resolved in his Crosby plain error opinion for the Court.  Specifically, Fagans addresses:

(1) whether to remand for resentencing, rather than for consideration of whether to resentence, where an objection to the compulsory use of the Sentencing Guidelines has been preserved for review, (2) whether, in some circumstances, to review the correctness of a Guidelines calculation now that the compulsory nature of the Guidelines has been eliminated, and (3) whether the calculation was correct in this case.

And, the Fagans Court holds that "the Guidelines calculation should now be reviewed, that the calculation was correct, and that the case should be remanded for resentencing because the District Court understandably but erroneously applied the Guidelines in a compulsory manner and the Defendant preserved his objection to that error."

There are a number of interesting aspects of Fagans, and I was particularly intrigued by this statement about the scope of the "prior conviction" exception: "While the exact scope of the phrase 'fact of a prior' conviction has yet to be determined, see Shepard v. United States, 125 S. Ct. 1254, 1262 (2005), the conviction itself, and the type and length of a sentence imposed seems logically to fall within this exception."  This assertion about the scope of the prior conviction exception seems notable for various reasons:

1.  A number of criminal history enhancements in federal and state sentencing law turn not on the bare fact of a prior conviction, but rather on the "type and length of a sentence imposed" (e.g., federal criminal history calculations under the guidelines turn on the length of prior sentences; an Ohio enhancement asks whether the defendant previously served a prison term).  Expanding the scope of the purportedly "narrow" prior conviction exception in this way is not of minor significance.

2.  I suspect there are often some serious factual disputes over the "type and length of a sentence imposed" for a prior offense.  In cases with a conflicting factual record, allowing a judge to resolve any factual disputes (by a preponderance of the evidence?) is not of minor significance.

3.  Though I am not sure exactly why allowing a judge to make findings about the "type and length of a sentence imposed seems logically to fall within" the prior conviction exception, I am sure that the offense/offender distinction advanced in my article "Conceptualizing Blakely," 17 Fed. Sent. Rep. 89 (Dec. 2004) (available here) supports this (logical?) extension of the prior conviction exception.

April 27, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

In praise of the District of Maine

Through my work on this blog, I have come to especially appreciate judges who write thoughtful sentencing opinions and court websites which make those opinions easily available on-line.  (It is has been interesting to discover the diversity — dare I say disparity? — in these areas throughout the federal system.)

Though I have not done a comprehensive examination of district court websites, I am moved today to give a special shout out to the District of Maine.  Its website, in addition to being  informative, attractive, and easy-to-navigate, makes available an enormous number of the court's opinions going back many years.  And, the district's three active judges — Chief Judge George Singal, Judge D. Brock Hornby and Judge John Woodcock (bios here) — all seem to make a habit of writing thoughtful sentencing opinions.  Consider, as just some examples from the last few weeks, these efforts:

All of these decision thoughtfully address a number of important post-Booker issues.  Perhaps the one must-read is Marinaro, which covers a broad array of post-Booker matters in an extended opinion with this opening line: "Gerardo Marinaro, an Italian citizen, is a genuinely likeable, hard working family man, who has an unfortunate knack for occasionally making notably bad decisions."

UPDATE: I am very pleased to see that Mike at Crime & Federalism has picked up this theme with this post praising the Eighth Circuit's website.  Mike makes a number of good points on which we agree; I particularly like that the circuit's opinion page has summaries of the day's decisions, where today you will see a notable sentencing rulings in US v. Brown, No. 04-2960 and US v. Garcia, No. 04-3016 .

April 27, 2005 in Booker in district courts | Permalink | Comments (1) | TrackBack

AEDPA ruling from SCOTUS today

Because I am not a habeas or AEDPA guru, I am not sure of the broad significance of the Supreme Court's 5-4 ruling today in Pace v. DiGuglielmo, which held, in the words of Lyle Denniston here at SCOTUSblog, that a "post-conviction claim filed in state court, found by a state court to be out of time, does not stop the running of the time for filing a federal habeas petition under AEDPA."  I am inclined to speculate that this ruling (which was authored by the Chief Justice and divided the Court along its "traditional" conservative/liberal lines) could possibly impact when and how some state defendants can bring Blakely claims or other challenges to state sentencing practices in federal court. 

I hope commentors might explain whether Pace is consequential, though I will quote from Justice Stevens' dissent (with citations omitted) which sets out his view of the case's impact:

[T]he most likely consequence of the Court's new rule will be to increase, not reduce, delays in the federal system. The inevitable result of today's decision will be a flood of protective filings in the federal district courts.... The Court admits that this type of protective filing will result from its holding. I fail to see any merit in a rule that knowingly and unnecessarily adds to the burdens on the district courts in a way that simple tolling would not.

April 27, 2005 in Sentences Reconsidered | Permalink | Comments (2) | TrackBack

A quick review of more Booker circuit action

In addition to the Fourth Circuit's notable plain error ruling in White on Tuesday and the other circuit Booker rulings noted here, a couple more appellate decisions caught my eye late tonight.  Here is a quick review:

From the Sixth Circuit, US v. Strbac, No. 04-4158 (6th Cir. Apr. 26, 2005) (available here) is the first Sixth Circuit decision, I believe, to consider an appeal in which the district court announced an identical "alternative" sentence during a sentencing between Blakely and Booker.  Expressly following the Fourth Circuit's approach (detailed here), the Strbac court affirms the alternative sentence, although only after expressly considering, as I urged here, the reasonableness of the sentence.

From the Tenth Circuit, US v. Bush, No. 03-4224 (10th Cir. Apr. 26, 2005) (available here) affirms a sentence over a Booker challenge in a way that seems to reveal the force of the 10th Circuit's distinctive approach to plain-error developed in its Gonzalez-Huerta ruling (details here).  The Bush court explains why the jury's verdict authorized the defendant's sentence to hold "there was no Sixth Amendment violation," but never considers the distinct question of whether the defendant was prejudiced by the application of mandatory guidelines (presumably because Gonzalez-Huerta indicates that the fourth prong of plain error would not be satisfied in this case even if the defendant could make a showing of prejudice).

April 27, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Computer program suggests arbitrariness of death penalty

The Christian Science Monitor has this interesting article about a computer software program used to study and predict which defendants among those sentenced to death actually get executed.  The program apparently was able to effectively predict execution outcomes without details about the committed crimes; the program only considered "facts such as age, race, sex, and marital status [of the death row defendant], along with the date and type of offense."  Explains the article:

The implication, says Dee Wood Harper, one of the researchers and a professor of criminal justice at Loyola University in New Orleans, is that "if this mindless software can determine who is going to die and who is not going to die, then there's some arbitrariness here in the [United States justice] system."

I wonder what HAL-9000 might think about this study (or about a colleague being called "mindless").

April 27, 2005 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (36) | TrackBack

April 26, 2005

Many more Booker circuit rulings of note

Though the latest Fourth Circuit ruling on plain error in White (discussed here) seems likely to be the most noteworthy circuit Booker decision today, I see fellow bloggers have noted some other recent circuit sentencing action.  Appellate Law & Practice today notes sentencing rulings in the First, Second and Fifth Circuits, and White Collar Crime Prof Blog has details here on a Seventh Circuit decision in United States v. Bownes by Judge Posner discussing appeal waivers post-Booker.  Because of the subject and the author Bownes (available here) is at the top of my evening reading list.

April 26, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

4th Circuit speaks again on plain error

Today in US v. White, No. 04-4349 (4th Cir. Apr. 26, 2005) (available here), Judge Wilkins (author of the Fourth Circuit's Hughes plain-error opinions here and here) shares more widsom on Booker plain error. 

Interestingly, in White, Judge Wilkins stresses that the defendant did not claim his Sixth Amendment rights were violated (as did Hughes), but only asserted error based on sentencing under a mandatory regime.  For this kind of case, Judge Wilkins in White puts the Fourth Circuit in the plain-error camp of the 1st, 5th, 10th and 11th Circuits by requiring defendants to prove prejudice to secure resentencing (and, in the case at hand, the Fourth Circuit ultimately holds that White failed to carry "his burden of demonstrating that [Booker] error affected his substantial rights").  Judge Wilkins in White has a lot to say about establishing prejudice and structural error on the way to the conclusion that "the error of sentencing White under a mandatory guidelines regime does not warrant a presumption of prejudice, nor is it structural."

Judge Duncan, dissenting on the sentencing analysis, has this to say about the Fourth Circuit's new distinction between Booker pipeline cases with and without assertions of Sixth Amendment error:

I am troubled by the majority's reliance on a distinction between the two manifestations of error discussed in Booker which the Supreme Court ultimately does not accept. Because I believe that the Remedial Opinion in Booker does not recognize that distinction, and the majority opinion fails to clearly articulate another, I respectfully dissent from Part III....

Following Booker, this court has decided that one segment of the total class of defendants authorized to seek resentencing can meet the stringent requirements of showing plain error and are therefore entitled to resentencing.... Although the error initially presented in Booker arose under the Sixth Amendment, the remedy provided was both broader and crafted to address its condition precedent — the mandatory character of the Guidelines.  The distinction the majority creates here in my view fails to adequately reflect or address that underlying error, or the fact that Booker creates one class of defendants going forward.  Because of that, I am unable to accept the majority's rationale for treating White's claim differently from Hughes's.  Because Hughes concluded that one group of defendants sentenced under the now invalid § 3553(b)(1) must be resentenced, and I am unpersuaded by the majority's basis for distinguishing the remaining defendants, I am compelled to conclude that the latter subset, including White, must be remanded for resentencing as well.

April 26, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

The judges speak out against HR 1528

In the interregnum between Blakely and Booker, I pondered in this post whether federal judges would engage in the policy debate after Booker.  Providing an answer is a letter written by Judge Sim Lake, Chair of the Criminal Law Committee of the US Judicial Conference, addressed to James Sensenbrenner, Chairman of the House Judiciary Committee, expressing opposition to H.R. 1528, the drug sentencing bill with the tacked-on Booker fix provisions.  (Prior discussion and lots of commentary on this bill can be found at links here and here, and details about other letters in opposition to H.R. 1528 are discussed here and here.)

Here are some passages from the start of the letter, which can be downloaded below:

I write to express the views of the Judicial Conference of the United States with regard to H.R. 1528.... The judiciary is firmly committed to a sentencing guideline system that ensures adequate deterrence of criminal conduct and protects the public from further crimes by convicted criminals, but is also fair, workable, transparent, predictable, and flexible. We believe that an advisory guideline system can achieve all of these goals, and the sentencing data since Booker supports this belief.

According to the Sentencing Commission's most recent data, the number of sentences within the guideline range has remained fairly constant since Booker was decided and corresponds to historical sentencing practices.  This is consistent with the experience of state court advisory guideline systems where most sentences fall within guideline ranges.  Moreover, in the reported post-Booker decisions in which courts have imposed sentences outside the advisory guideline range, judges have explained why such sentences were appropriate....

The judiciary is very concerned that the sentencing provisions of Section 12 of H.R. 1528 were included without supporting data or consultation with the judiciary.  Because there is no demonstrable need to consider possible legislative responses to Booker at this time, and because, as explained below, Section 12 does not represent a sound alternative to the present advisory guideline system, the Judicial Conference strongly opposes this proposal.

The letter goes on to criticize various particular provisions of H.R. 1528, and concludes with this interesting information about an event not to be missed:

The Committee, along with the Federal Judicial Center and the Sentencing Commission, is sponsoring a National Sentencing Policy Institute in Washington, D.C., on July 11-13, 2005.  The purpose of the institute is to bring together over 100 judges, congressional staff, and Department of Justice officials with the members of the Committee and the Sentencing Commission (1) to discuss potential policy and practical issues arising from the Booker decision and (2) to provide feedback on these issues to the Committee and the Commission. We intend to invite the leadership of both the House and Senate Judiciary Committees and their staffs to attend the institute and actively participate.  We hope you will be able to join us.

Download judicial_conf_letter_on_hr_1528.pdf

April 26, 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, Who Sentences? | Permalink | Comments (6) | TrackBack

SCOTUS debates (in footnotes) Blakely/Booker pipeline issue

Though the two criminal law decisions decided today by the Supreme Court are surely noteworthy for various other reasons (basics here and here), a bit of sparing in the footnotes of Pasquantino v. US about how to handle a Blakely claim has my attention.  Here is the final footnote of Justice Thomas' opinion for the majority of the Court, which affirmed the defendants' convictions in Pasquantino

Petitioners argue in a footnote that their sentences should be vacated in light of Blakely v. Washington, 542 U. S. ___ (2004).  Brief for Petitioners 26, n. 29.  Petitioners did not raise this claim before the Court of Appeals or in their petition for certiorari.  We therefore decline to address it. See, e.g., Lopez v. Davis, 531 U. S. 230, 244, n. 6 (2001) (declining to address "matter . . . not raised or decided below, or presented in the petition for certiorari"); Whitfield v. United States, 543 U. S. ___ (2005) (affirming federal convictions despite the imposition of sentence enhancements, see Brief for Petitioners therein, O. T. 2004, No. 03–1293, etc., p. 7, n. 6).

Here is the footnote retort on this issue in Justice Ginsburg's dissent:

I note that petitioners' sentences were enhanced on the basis of judicial factfindings, in violation of the Sixth Amendment. See United States v. Booker, 543 U. S. ___, ___ (2005) (STEVENS, J., for the Court) (slip op., at 5-9); see also Blakely v. Washington, 542 U. S. ___ (2004).  Despite the Court's affirmance of their convictions, therefore, the petitioners may be entitled to resentencing. See Booker, 543 U. S., at ___, ___ (BREYER, J., for the Court) (slip op., at 25-26). The Court declines to address the defendants' plea for resentencing, stating that "[p]etitioners did not raise this claim before the Court of Appeals or in their petition for certiorari." See ante, at 21, n. 14. This omission was no fault of the defendants, however, as the petition in this case was filed and granted well before the Court decided Blakely.  Petitioners thus raised Blakely at the earliest possible point: in their merits briefing.  The rule that we do not consider issues not raised in the petition is prudential, not jurisdictional, see Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 32-33 (1993) (per curiam), and a remand on the Blakely-Booker question would neither prejudice the Government nor require this Court to delve into complex issues not passed on below.

I guess we should not be surprised to find that the Supreme Court is split on this "pipeline" issue.  Also, these comments provide some interesting tea leaves for lower courts to read concerning (1) how to handle various Blakely-Booker pipeline issues, and (2) whether the Supreme Court may ever grant cert on questions like plain error or other pipeline concerns (prior musing on this issue are here).

April 26, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Split decision for defendants at SCOTUS today (and Blakely-Booker footnotes)

As SCOTUSblog details here, criminal defendants won one and lost one in the two Supreme Court decisions handed down today.  The victory for the defendant came in Small v. US, where the Court held 5-3, with Justice Breyer writing for the majority, that the statute prohibiting a convicted person from possessing a firearm "encompasses only domestic, not foreign, convictions."   Though Justice Breyer's ruling suggests only about a dozen convictions a year under the statute are based on foreign convictions, this ruling might have broader sentencing significance in a broader debate over how foreign convictions ought to be incorporated into criminal history determinations.  [UPDATE: The AP here provides an early account of Small.]

The victory for the government came in Pasquantino v. US, where the Court held 5-4, with Justice Thomas writing for the majority, that a plot to defraud a foreign government of tax revenue violates the US federal wire fraud law.  Though I suspect Tax Prof Blog and White Collar Crime Prof Blog might have more to say about the merits of this case, I will just quickly note (1) that Justice Stevens joined the majority to uphold the defendants' conviction while Justice Scalia dissented, and (2) the case includes some Blakely/Booker "pipeline" discussion in the footnotes, which merits a separate post (that is now here).

April 26, 2005 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

The saga of Blakely in Tennessee continues

As detailed here, the Tennessee Supreme Court earlier this month in its Gomez decision found Blakely inapplicable to Tennessee's sentencing scheme.  But, as detailed here, that ruling seemed to rest on a complete misunderstanding of Apprendi and Blakely.  Indeed, as discussed in this post last week, within a matter of days, the State filed a petition urging the Tennessee Supreme Court to rehear the case and asserted that the Gomez decision "overlooked or misapprehended a material proposition of law."

On Monday I received a copy of the amicus petition to rehear filed in Gomez by the Tennessee Association of Criminal Defense Lawyers.  Available for download below, this brief is an interesting read because, in addition to addressing the Blakely problem, the brief deals with procedural issues which were also discussed but did not seem essential to the decision in Gomez.

Download petitiontorehearofamicuscuriae_4.25.05.pdf

April 26, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

Noteworthy district and circuit Booker decisions

A busy Monday with lots of news, combined with the late hour, means I can only quickly note and link some of the recent circuit and district Booker opinions that caught my eye today.  Here is a quick run-down:

In US v. Scott, No. 04-1053 (7th Cir. Apr. 25, 2005) (available here), Judge Posner expounds a bit on Booker plain error and states that an "incorrect application of the guidelines requires resentencing under the post-Booker sentencing regime."  In Scott, Judge Posner also expounds at length about the nature and scope of criminal restitution.

In US v. Anderson, No. 2-04cr85 (D. Maine Apr. 20, 2005) (available here), Judge Hornby gives a detailed explanation for "a modest variance from the Guidelines."  Similarly, in US v. Carey, No. 04-CR-221 (E.D. Wis. Apr. 25, 2005), available for download below, Judge Adelman likewise gives a detailed account of his reasons for a small variance.  Both cases provide an interesting view of the parsimony provision (first discussed here post-Booker), and Judge Adelman in a footnote in Carey directly responds to Judge Kopf's recent statement of misgivings about the parsimony provision in his recent Tabor opinion (discussed here).

Download adelman_carey_sentencing.pdf

April 26, 2005 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits | Permalink | Comments (0) | TrackBack

NY Times examines "problem-solving" courts

The New York Times has this long and interesting article discussing New York's experiences with drug courts and other problem solving courts.  Here's the opening:

Starting about 15 years ago ... some judges began ... intervening in the lives of drug addicts to get them into treatment and keep them out of overcrowded jails and overburdened courtrooms.  Now, in drug treatment courts, judges are cheerleaders and social workers as much as jurists.

New York State is pushing this approach to new frontiers, creating a homelessness court, domestic violence courts and mental health courts.  Backed by the state's chief judge, and bolstered by the court system's own research, these new courts are, among other things, trying to cut down on the number of people who appear in courtrooms over and over again.

The piece seems a bit too rosy in spots, but my own optimistic instincts makes me want to believe these courts (and concepts of "therapeutic justice") are a very positive development in the criminal justice field.  I have previously provided a lot of resources about drug courts in this prior post.

April 26, 2005 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

More evidence of the decline of death

Thanks to TalkLeft's post here, I see that the AP is reporting that the NAACP's Legal Defense Fund has determined that the "number of people sentenced to death last year fell to the lowest level since the Supreme Court reinstated the penalty in 1976."  Though there were still 125 death sentences handed out last year, that number is "down from 144 the previous year and [marks] the sixth consecutive annual decline."

The AP article has quotes from different folks suggesting various explanations, and there is probably a grain of truth to all the speculations.  (Recall also that, as detailed here, the Death Penalty Information Center's 2004 year-end report documented and gave explanation for drops in death sentences, executions, death row population, and public support for capital punishment last year.)

In a number of prior posts, some of which are linked below, I have documented recent declines in the use of the death penalty in the United States:

April 26, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

April 25, 2005

A clear case of cruel and unusual punishment?

Howard Bashman of How Appealing fame was kind enough to send me this article which reports on a novel sentencing in Wisconsin for a state felony conviction.  According to the article:

The criminal complaint states that Rosenthal had taken money totaling more than $3,000 from labor union accounts prior to leaving the organization's membership....  While Rosenthal told police financial hardship was an issue, she and her husband managed to maintain the cost of four tickets to the Packers' three-game season package....

Judge Scott Woldt offered her the decision to either serve [90 days in jail] or donate the 12 tickets for the upcoming season to the Make-A-Wish Foundation.  With the cheapest seats in Lambeau Field costing $54 apiece, the season package is worth at least $648.  The jail time — or the ticket donation — will occur as part of an overall two-year period of probation.

I suspect that true Packers' fans might consider this sentence an Eighth Amendment violation, though I think the case would be stronger if the defendant also had to donate her cheesehead.  I also wonder if the Packers' draft experience this weekend might prompt the judge to reconsider this sentence.  Given the recent popularity of shaming sentences, I suppose the defendant should be thankful she was not ordered to wear a Minnesota Vikings jersey for her two-year period of probation.

Okay, that's enough from me; comments with better gags are highly encouraged (as are serious comments about this novel, and perhaps legally problematic, sentencing).

April 25, 2005 in Criminal Sentences Alternatives | Permalink | Comments (2) | TrackBack

The litigation mess argument against H.R. 1528

I noticed this afternoon that FAMM has collected here some of the letters expressing opposition to H.R. 1528, the drug sentencing bill with the tacked-on Booker fix provisions (prior discussion and lots of commentary on this bill can be found at links here and here and here).  One item available there that I had not previously seen is this long letter on behalf of the federal public defenders, which particularly details various grounds for constitutional challenges to various provision of H.R. 1528.

Among other potent points, the defenders letter spotlights that H.R. 1528 "would generate widespread litigation," and thus it reinforces the view I expressed twice to the US Sentencing Commission (testimony here and here) about the legal confusion and uncertainty that would follow any major structural changes to the federal sentencing guidelines in the wake of Booker.  Especially given the mess (and disparity) in the circuits stemming from the (relatively minor) issue of Booker plain error, thinking about the just the litigation consequences if H.R. 1528 were to become law makes my head hurt.  Indeed, this is another reason why, as I suggested in this post, I think the Justice Department may not be too keen on the Booker fix provisions of H.R. 1528 becoming law.

April 25, 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, Who Sentences? | Permalink | Comments (0) | TrackBack

King has returned to the Third Circuit

As detailed in this post, the Third Circuit's (unpublished) sentencing decision in King was dethroned last week: the Circuit withdrew and vacated its April 15 opinion in King, perhaps because of a notable and questionable footnote with Booker dicta stating 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."  (Here's my original post on King, and here is a follow-up from the Third Circuit Blog.)

Today I see that King is back — long live the King! — in an unpublished opinion available here.  Significantly, the curious footnote with questionable Booker dicta has been banished from the Kingdom, but the rest of the interesting opinion still remains.  And, not to be overlooked, the new version of King includes an intriguing new concurring opinion from Judge McKee, which opens with this paragraph:

I believe that the District Court properly applied the sophisticated means enhancement under the Guidelines.  However, I write separately because I am concerned that King may well be correct in arguing that his sentence resulted, at least partially, from the District Court's personal bias against tax offenders and that the court's sentence was driven by that policy rather than the individualized consideration mandated under 18 U.S.C. § 3553(a).

April 25, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Lunchtime around the blogsphere

A quick mid-day tour of blogs has led me to a number of items that merit linking, especially because they cover a range of sentencing topics that has recently had me thinking (and blogging):

UPDATE: An afternoon tour of the blogsphere suggests adding this items:

April 25, 2005 | Permalink | Comments (1) | TrackBack

The same ole story from SCOTUS

As we all now know, Monday morning with the Supreme Court in session means more Booker-inspired GVRs.  This morning I count three dozen such GVRs on this order list, which emboldens me to restate my prediction in this post that we could have over 1000 such orders before this Term is finished.  (Previous GVRs can be tracked down through this post.)

In addition, as reported in this post from SCOTUSblog, the Supreme Court continued today its preoccupation (fetishism?) with capital sentencing procedures through a cert grant in Oregon v. Guzek (docket 04-928), which concerns "a convicted individual's attempt to bring into a death sentencing hearing evidence that would cast doubt on the conviction."  As well explained at  SCOTUSblog, Guzek "seeks clarification of the Supreme Court's 1988 ruling in Franklin v. Lynaugh" and also "could have an impact on the coming sentencing hearing of admitted terrorist Zacarias Moussaoui."

Though Guzek seems like a cert-worthy case, this grant reinforces my recent observations in this post about how much time and energy the Supreme Court is spending on death penalty litigation these days.  (I am growing fond of labeling these developments a "legal culture of death" at the Supreme Court.)  I believe Guzek is the second capital cases in which cert has been granted for the 2005 Term, even though there are (in my view) many post-Blakely and post-Booker legal questions concerning non-capital sentencing procedures that are far more pressing and of much greater national import.

Meanwhile, as reported here by CrimProf and in fuller posts at SCOTUSblog here and here, the Supreme Court is hearing arguments today on two (complicated) non-capital criminal cases which both have issues that could impact sentencing law and practice.  As the Supreme Court term winds down over the next two months, I will be watching closely not only whether we get cert grants on any Blakely and Booker issues for next Term, but also whether some of the coming decisions this Term have any important or notable dicta that might impact post-Blakely and post-Booker litigation in lower courts.

UPDATE: This AP account of today's SCOTUS argument in Halbert v. Michigan suggests that sentencing is a big part of the case's back-story.  The Halbert case will thus be high on my watch list as the Term winds down.

April 25, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

The ever-growing prison population

Thanks to TalkLeft's post here, I see that the government has released "Prison and Jail Inmates at Midyear 2004," which provides the latest official figures on state and federal incarceration rates, updated through June 30, 2004.  (The full report on "Prisoners in 2003" is discussed here.)

As this AP story details, the report reveals that the US prison and jail population grew "at a rate of about 900 inmates each week between mid-2003 and mid-2004, [and] the nation's prisons and jails held 2.1 million people, or one in every 138 U.S. residents."  Both this official DOJ press release and the full report are full of fascinating (and mostly depressing) data tidbits.

Though many facts in this latest report merit discussion, consider this interesting state/federal comparison from the report:

Federal system growth continues to outpace that of States

The rate of growth of the State prison population slowed between 1995 and 2001 and then began to rise. During this time, the percentage change in the first 6 months of each year steadily decreased, reaching a low of 0.6% in 2001, and then rose to 1.5% in 2004 (table 2). The percentage change in the second 6 months of each year showed a similar trend, resulting in an actual decrease in State prison populations for the second half of 2000 and 2001.

Since 1995 the Federal system has grown at a much higher rate than the States, peaking at 6% growth in the first 6 months of 1999. In the first 6 months of 2004, the number of Federal inmates increased 3.6% (more than twice the rate of State growth).

April 25, 2005 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

April 24, 2005

State of state Blakely fixes and high court rulings

With the recent news of legislative Blakely fixes in Indiana (details here) and Washington (details here), as well as the recent state supreme court work in Tennessee (details here, commentary here and here) and Washington (details here), I thought it might be useful to collect in one spot some of the prior posts in which I have reported on major developments in state legislative Blakely fixes and state high court rulings.  So, in alphabetical order, here are some of those prior posts:



Of course, this lengthy list of prior posts tells only part of the state Blakely story.  I know that there have been major Blakely developments in California, Colorado, Ohio, New Mexico, New Jersey and North Carolina, but these developments have not yet, to my knowledge, led to a legislative fix or a state high court ruling.  But, on only the 10-month anniversary of Blakely, it is remarkable to see all the impact Blakely has already had in the states.

April 24, 2005 in Blakely Commentary and News, Blakely in the States, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (1) | TrackBack

I wonder how Virginia would assess Martha Stewart's risk

Two interesting news items today from east coast posts almost cry out to be merged: this story from the New York Post reports that the "feds are investigating whether former jailbird Martha Stewart violated the rules of her house arrest when she attended a Time magazine gala last week," while this story from the Washington Post reports that Virginia is set to expand the use of its controversial "risk assessment" instrument to "help figure out whether criminals who violate the terms of their probation should be sent back to prison for years or diverted to lower-security detention centers for several months."

Reading the stories in sequence led me to wonder what Martha might score on Virginia's risk assessment measures.  My guess is that all white-collar offenders do pretty well within Virginia's risk assessment instrument (and I think this sample worksheet from Virginia might be similar to what would be used to "score" Martha). 

Needless to say, the NY Post treats the Martha story with levity (quoting comedian Jon Stewart), while the Wash Post treats the Virginia story with gravitas (quoting Virginia sentencing commission director Rick Kern).  Meanwhile, Ellen Podgor over at the White Collar Crime Prof Blog in this post raises some interesting questions about the Martha story.

April 24, 2005 in Advisory Sentencing Guidelines, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Pondering the future of the plain error mess

This law.com article — which discusses the recent sparing by 11th Circuit judges in Rodriguez over circuit's approach to Booker plain error (discussed previously here) — has me thinking about the current state and possible future of the Booker plain error issues.  Over two months ago, I was already asking in this post whether the Supreme Court would clean up the plain error mess, and over a month ago, I documented in this post the well-entrenched three-way split on Booker plain error.  But, as time goes by, I wonder if this intricate legal debate still merits the Supreme Court's attention.

As I said back in February, a strong case can be made, especially with the Booker remedial majority extolling the goal of sentencing uniformity, that SCOTUS needs to resolve conclusively how a large group of Booker pipeline cases should be handled.  However, as time and caseloads march forward, the number of plain error pipeline cases must be diminishing.  Moreover, even if the Supreme Court granted cert. on this issue soon, it would still be many months before an opinion would be handed down; by then, the number of "live" Booker plain error cases would be smaller still.  And, of course, the Supreme Court has no shortage of other critical Blakely/Booker issues to address that are of much greater long-term importance to state and federal sentencing (e.g., the status and scope of the prior conviction exception, Blakely's applicability to judicial determinations of non-prison sentences or consecutive sentences, etc.)

In some sense, the future development of plain error serves as an interesting test case for the true importance of national sentencing uniformity relative to other goals and interests.  Federal defendants are, because of the different circuit plain error rules, clearly receiving unequal justice in the wake of Booker.  But, though the consequences of unequal justice may be quite significant for individual defendants, the consequences may not be so profound for the entire system to merit Supreme Court correction.  (It is interesting to speculate whether and how other institutions, such as Congress or the US Sentencing Commission, might intervene to clean up the plain error mess.  But this would be pure academic speculation because, to my knowledge, neither body is inclined to address this issue in any way.)

At the circuit level, we are still awaiting plain error rulings from the en banc courts of the 8th and 9th Circuits, though I doubt those rulings could change the basic dynamics of the national Booker plain error story.  Among the reasons I am eager, as suggested in this post, to see some post-Booker circuit data from the US Sentencing Commission is to be able to take stock of overall importance of the plain error story.  Of course, the Department of Justice likely has been taking stock of all the plain error developments, and I continue to wonder if DOJ plans to seek cert. from any of the plain error decisions that have not gone its way.

Since I am just "thinking out loud" on these issues, I encourage feedback in the comments on these plain error musings from interested (or disinterested) readers.

UPDATE: Peter Henning over at the White Collar Crim Prof Blog adds some interesting Booker plain error insights in this post.

April 24, 2005 in Booker and Fanfan Commentary, Booker in the Circuits, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack