May 4, 2005
Intriguing (high-profile) example of jury sentencing
There are many stories which surround the prosecution and guilty plea of Lynndie England, the Army reservist involved in abusing naked Iraqi prisoners at Abu Ghraib prison. But my interest is captured by military's use of true jury sentencing (see background here and here on military trial procedures).
The New York Times has this account of the on-going sentencing trial of England, and TalkLeft comments here on the mitigating evidence being presented. I find particularly intriguing the reports that England's plea deal capped the sentence she could receive, as she will apparently receive the lesser of the military jury's sentence or the term specified in the plea bargain.
I wonder if counsel in civilian cases ever consider this "lesser sentence" sort of plea agreement. I am not even sure such a deal could be engineered, or would be accepted, in a jurisdiction that relies on judicial sentencing.
May 3, 2005
Rapid Booker tour around the circuits
What would a weekday be without some discussion of Booker circuit opinions? I guess we won't find out today, as I provide some very quick circuit highlights here. Not all of the cases noted below are ground-breaking, but they all make for quite interesting reads.
From the First Circuit, US v. Bailey, No. 03-2362 (1st Cir. May 3, 2005) (available here) is an appeal by "one of seven jailers charged with federal offenses arising from five incidents ... where guards employed excessive force against pretrial detainees and then acted to conceal their misconduct." The First Circuit affirms in an opinion that rejects the defendant's invitation "to disregard Antonakopoulos and hold instead that the burden should rest with the government to defend the pre-Booker sentence." Appellate Law & Practice provides more highlights in this post.
From the Second Circuit, US v. Gonzales, No. 04-1956 (2d Cir. May 3, 2005) (available here) has an interesting post-Booker discussion of the rule of lenity. Appellate Law & Practice provides more details and highlights in this post.
From the Fifth Circuit, US v. Guevara, No. 03-11299 (5th Cir. May 2, 2005) (available here) involves an appeal from a life sentence imposed on a defendant who committed an "anthrax hoax" through a letter written and mailed to a US District Judge. Notably, the application of the career-offender provisions raised the defendant's guideline sentence from a high of 78 month to life imprisonment, but on appeal the defendant's various sentencing challenges were rejected. Appellate Law & Practice provides more highlights here.
From the Seventh Circuit, we get three notable criminal opinions, all of which involve sentencing remands: US v. Ngo, No. 04-2662 (7th Cir. May 3, 2005) (available here), covers criminal history issues and seems to have interesting Shepard analysis; US v. White, No. 03-2875 (7th Cir. May 3, 2005) (available here), and US v. Castillo, No. 02-3584 (7th Cir. May 3, 2005) (available here), seems like a fairly standard Paladino remands but they become more noteworthy because Judge Easterbrook, dissenting from the decision not to rehear these appeals en banc, complains about "applying Paladino to no-constitutional-error situations."
From the Eleventh Circuit, US v. Ducas, No. 04-15319 (11th Cir. May 3, 2005) (available here) proves it is possible to previal on plain error in the 11th Circuit. Also, the facts and holding of the Ducas reveals that some defendants benefit from the fact that the 11th Circuit is not focusing upon the fourth plain error prong (as is the 10th Circuit and as Judge Easterbrook would like to do). Appellate Law & Practice provides more details on Ducas and a few other recent 11th Circuit Booker decisions in this post.
UPDATE: I also now see that the Tenth Circuit has released a half-dozen published sentencing opinions, one of which involves Booker remands but the most of which involve affirmances of sentences on various grounds.
The more things change...
I just got word that this afternoon Wisconsin US District Judge John Shabaz resentenced Freddie Booker to the same 30-year sentence that he initially received (as I vaguely predicted in this morning post). I will leave it to readers to decide whether Won't Get Fooled Again or Once in a Lifetime or Desparado is the appropriate tune to play in the background as we consider this development and the rest of the post-Booker world. I will be interested to hear the reaction of T Chris of Talk Left, who represented Booker and helped secure his "victory" in the Supreme Court.
UPDATE: In this post, T Chris reports he is "disappointed, to say the least."
Relatedly, does anyone know when Ducan Fanfan is scheduled to be resentenced?
New report on marijuana offenses
I have just received a note from folks at The Sentencing Project about its new report on marijuana policy, entitled "The War on Marijuana: The Transformation of the War on Drugs in the 1990s." The report, which can be accessed at this link, indicates that "since 1990, law enforcement priorities have become heavily skewed toward arresting low-level marijuana offenders as part of the 'war on drugs' strategy." The e-mail I received details the following highlights of the report:
- 82% of the 450,000 increase in drug arrests since 1990 has been for marijuana offenses, and 88% of this rise has been for possession offenses.
- Marijuana arrests now total 700,000 a year nationally, representing 45% of all drug arrests.
- Arrests for marijuana offenses rose by 113% from 1990 to 2002, while arrests for all other drug offenses increased by just 10%.
- Most marijuana arrests are for low-level offenses, with only 1 in 18 resulting in a felony conviction.
- While African Americans constitute an estimated 14% of regular marijuana users, blacks are 30% of persons arrested for marijuana violations.
A musical summary of Booker appeals
I was hoping my musical take on a recent 11th Circuit Booker decision might jump-start the once-fervent, now-dormant Blakely-Booker song parody craze. (As detailed in the comments to this post, late last year Milbarge of Begging the Question had earned the title of Weird-Blakely Yankovic with his inspiring and hysterical Take a Walk on the Blakely Side and 'Twas the Night Before Booker. And those with different musical tastes could fill out their collection with Booker's Got Back from Curtis.)
Wonderfully, the fine folks at Begging the Question have stepped up to the silly song challenge with a Booker-ized version of a classic from The Eagles. As the mysterious Fitz-Hume explains, this brilliant Booker song parody is "about the vagaries of appealing a conviction in the post-Booker world." Here are the first two stanzas, and at this post you can enjoy the full Desperado:
Why you appealin' your sentence?
All of your brilliance, it won't help you now.
You got a long time,
But the judge had her reasons.
These things you're appealin'
Can hurt you somehow.
Don't you draw the 'leventh Circuit, boy,
If your error is a plain one.
You know the Ninth out west is always your best bet.
Now some judges are the harsh ones,
And some judges are humane ones,
So you roll the dice and take what you can get...
More perspectives on Massachusetts death penalty bill
The introduction by Massachusetts Governor Mitt Romney of a bill to bring capital punishment back to the state (first discussed here, initial commentary here) is already garnering interesting debates. For example, the Boston Herald has weighed in with this editorial which contends "the categories of murder justifying capital punishment in Romney's bill are too narrowly drawn and the jury's "no doubt'' standard is set ridiculously high." The Herald also notes in this article that advocates of the death penalty are not too impressed with the proposal:
"It looks like it was written by a criminal defense attorney,'' said Mike Paranzino of the pro-death penalty group Throwawaythekey.org. "It is stacked again and again in the killers' favor and victims are an after-thought. It would be unlikely to ever lead to an execution in Massachusetts.''
Meanwhile, The Republican has expressed its opposition to the bill in this editorial which stresses that "no death penalty is foolproof, even with multiple safeguards in place." Taking a different approach, I was pleased to see the Blue Mass. Group blog in this post has picked up the theme of costs, which I flagged in my earlier commentary here, asking "is Romney absolutely committed to the vast sums it will cost to provide highly qualified counsel, scientific testing, and all the rest of the bells and whistles this bill promises? And how, exactly, does he plan to do that while cutting taxes?"
I have received a copy of the bill, which comes fronted by an interesting cover letter signed by Gov. Romney. You can download below the bill, and come to your own judgments on its merits.
Freddie Booker to be resentenced today
I heard from a reporter yesterday that Freddie Booker is due to be resentenced this afternoon in Wisconsin by US District Judge John C. Shabaz. Though I have not seen any of the papers filed in the resentencing, my guess is that the government is asking for Judge Shabaz to impose the same 30-year sentence that was initially given to Freddie Booker. And if Judge Shabaz does impose the same 30-year term, I wonder if the defense team will consider pursuing another appeal (or instead will just be left to hum Won't Get Fooled Again or Once in a Lifetime or other Songs in the key of 3553).
UPDATE: As detailed in this post, Freddie Booker did receive 30 years at his resentencing.
May 2, 2005
Florida Supreme Court declares Apprendi is not to apply retroactively
I have been so preoccupied of late with federal sentencing stories, I have not reported on some interesting recent state cases. Perhaps the most notable of the bunch is the decision by the Supreme Court of Florida in Hughes v. Florida, No. SC02-2247 (Fla. Apr. 28, 2005) (available here), which declares, by a 5-2 vote, that "that Apprendi does not apply retroactively."
Hughes is a thoughtful decision all around, with the dissenters making an interesting argument for retroactivity based on the particulars of Florida law. But the majority is not convinced, and in the majority's opinion there is this particularly informative account of the state of Apprendi retroactivity nationwide:
We also find it persuasive that all but one of the federal courts of appeals have expressly considered the issue, albeit under a different retroactivity analysis, and not one has held Apprendi to apply retroactively. Several state courts also have considered the issue, and again not one has held Apprendi to apply retroactively. Finally, the United States Supreme Court has held that Ring, which applied Apprendi in the death penalty context, does not apply retroactively.
UPDATE: Michael Ausbrook at INCourts has this extended post discussing Hughes and retroactivity and other related issues more generally.
Another high-profile Connecticut Booker variance
As detailed in articles here and here, today former Connecticut NAACP leader Ben Andrews was sentenced to 30 months in prison "for helping steer hundreds of millions in state pension fund investments, but the once influential Republican steadfastly maintained his innocence." Because the reported guideline range was 57-71 months, District Court Judge Ellen Burns had to depart or vary to impose this sentence. Here's the AP account:
Andrews faced up to about six years in prison according to federal sentencing guidelines, but Burns said his "lifetime of devotion" to civil rights work merited a more lenient sentence.
Andrews and his supporters said that wasn't enough. They wanted him to receive a sentence in line with the yearlong term former Gov. John G. Rowland received for unrelated corruption.
The basic story of Rowland's sentence can be found in this post, and a collection of commentary on that sentencing is here. Of course, news of another white-collar defendant getting a reduced sentence has me again speculating, as I did here, that this group of offenders is doing particularly well in the post-Booker world.
UPDATE: Peter Henning at White Collar Crim Prof Blog has more news and commentary on the Andrews sentencing in this post.
Same as it ever was...
With a hat tip to David Byrne, today's decision by 11th Circuit in US v. Crawford, No. 03-15136 (11th Cir. May 2, 2005) (available here), has me humming a Booker tweaked version of one of my favorite Talking Heads songs:
And you may ask yourself, How does Booker work?And you may ask yourself, Where is that large Booker change?And you may tell yourself, This is not a beautiful new sentencing system!And you may tell yourself, This is not a beautiful new sentencing world!Letting the Booker days go by / Let the caselaw hold me downLetting the Booker days go by / Caselaw flowing underground...Same as it ever was...Same as it ever was...Same as it ever was... Same as it ever was...Same as it ever was...Same as it ever was... Same as it ever was...Same as it ever was...
Peter Henning at the White Collar Crim Prof Blog here provides the details of Crawford. The most consequential aspect of Crawford is the 11th Circuit's conclusion, in line with the 8th Circuit Mathijssen ruling earlier today, that "as was the case before Booker, the district court must calculate the Guidelines range accurately" and "Booker does not alter our [pre-Booker standards for] review of the application of the Guidelines." And, gosh, does post-Booker review look like pre-Booker review in Crawford: the 11th Circuit remands for resentencing by holding that the district court erred in failing to apply an upward enhancement and in deciding to depart downward based on a combination of factors.
Folks inspired by this post to Booker-ize their I-Pods should also be sure to harken back to a prior post entitled Songs in the key of 3553.
11th Circuit says juvenile offenses come within prior conviction exception
Just yesterday I had a chance in this post to spotlight a thoughtful state case which concluded, following the Ninth Circuit's decision in United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), that a "juvenile adjudication does not constitute a prior conviction under the Apprendi exception." Coincidently, the Eleventh Circuit had occasion to speak to this issue for the very first time today in US v. Burge, No. 04-13468 (11th Cir. May 2, 2005) (available here). And fans of circuit court sentencing action will not be surprised to learn that the 11th Circuit in Burge was not convinced by the 9th Circuit's approach to juvenile offenses and the prior conviction exception.
Burge cover a lot of interesting sentencing ground, including Booker and Shepard issues. But its extended analysis of the place of juvenile convictions within the Apprendi story is the most noteworthy aspect of the decision. Here's a taste:
"[T]rial by jury in the juvenile court's adjudicative stage is not a constitutional requirement." McKeiver, 403 U.S. at 545. Further, although the Court's Jones and Apprendi decisions discuss the right to a jury trial as a procedural safeguard, neither case addresses juvenile adjudications and neither case explicitly states that a juvenile adjudication can only count as a prior conviction under the ACCA if the juvenile was afforded the right to a jury trial. At a minimum, however, Apprendi's prior conviction exception is based on the procedural safeguards that attach to a prior conviction or juvenile adjudication.
Prior to Almendarez-Torres, we recognized that the fact of a prior conviction under section 924(e) "merely links the severity of the defendant's punishment for a violation of the predicate offense § 922(g) to the number of previous felony convictions" and need not be submitted for jury consideration because "the defendant has received the totality of constitutional protections due in the prior proceeding on the predicate offense." United States v. McGatha, 891 F.2d 1520, 1526 (11th Cir. 1990). We explained that "[i]t was unnecessary for the jury to consider the defendant's prior convictions, for these convictions were not an element of the offense for which he was indicted and to which he entered his plea of guilty." Id. at 1525. And we concluded that "[w]hile the Due Process Clause indeed requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, in sentencing those already constitutionally convicted the courts have traditionally operated without constitutionally imposed burdens of proof." Id. at 1526-27. Although we did not consider the use of a prior juvenile adjudication in McGatha, its rationale is consistent with [other circuit decisions rejecting Tighe], and can be applied in this case. Accordingly, "[a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes." Jones, 332 F.3d at 696. Here, we are persuaded that Burge received the totality of constitutional protections due in his prior juvenile proceeding.
Eighth Circuit remains a busy sentencing bee
The Eighth Circuit on Friday issued two major sentencing decisions: Pirani on Booker plain error (basics here and commentary here) and Doe on sex offender residency restictions (basics here and commentary here). Obviously not a circuit to rest on last week's hard work, today the Eighth Circuit issued two more noteworthy sentencing opinions.
For Booker fans, we have US v. Mathijssen, No. 04-1995 (8th Cir. May 2, 2005) (available here), in which the court gives us the following insights about the application of Booker's unreasonableness standard (with some citations omitted):
We review the application of the sentencing guidelines de novo and review the district court’s factual findings for clear error. We continue to review de novo the interpretation and application of the guidelines provisions after Booker.
We conclude that the unreasonableness standard articulated by the Supreme Court in Booker applies only to the district court's determination of the appropriate ultimate sentence to impose based on all the factors in 18 U.S.C. § 3553(a), not to the district court's interpretation of the meaning and applicability of the guidelines themselves. We must continue to interpret the correct meaning and application of guidelines language, because the district court must continue to determine "the appropriate guidelines sentencing range," as it did pre-Booker, before it considers the other factors in 18 U.S.C. § 3553(a). The now-advisory guidelines, when correctly applied, become a consideration for the district court in choosing a reasonable ultimate sentence. Reasonableness, therefore, may be "directly linked to the district court's misapplication of a relevant Guideline," United States v. Killgo, 397 F.3d 628, 631 (8th Cir. 2005), but is based on broader considerations than whether the guidelines were properly applied.
For capital sentencing fans, we have the en banc decision of US v. Allen, No. 98-2549 (8th Cir. May 2, 2005) (available here). Since Allen cover a lot of ground, I'll rely on the official summary of the court's unanimous opinionfrom the Circuit's opinion page:
On remand from the Supreme Court for reconsideration under Ring v. Arizona, 536 U.S. 584 (2002), the court holds: (1) the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment; (2) the indictment in this case suffered a Fifth Amendment defect; (3) the defect in the indictment was not a structural error; (4) the error was harmless because any rational grand jury would have found the existence of the requisite mental state and one or more statutory aggravating factors based on the actual evidence which was presented to the grand jury in the case, to wit, that defendant created a grave risk of death to others while committing the bank robbery and in fleeing apprehension and that he acted with the required mental state when he intentionally shot and killed a bank guard; (5) mere possibility of grand jury nullification does not transform harmless error into a prejudicial error, and defendant could show nothing more than a possibility; and (6) constitutional challenge to Federal Death Penalty Act rejected.
The weekly SCOTUS GVR report
You can set your calenders these days by SCOTUS action: if it is Monday morning, it is time for more Booker-inspired GVRs from the Supreme Court. As was true last week, this morning brings three dozen more such GVRs on this order list. Is anyone out there keeping an accurate running count on how many total Booker-inspired GVRs we've seen?
On another front, as SCOTUSblog reports here, the less notable of two cert grants today has the court granting review in "LaMarque v. Chavis (04-721), another case on the suspension of the one-year filing deadline for federal habeas petitions." Though I love AEDPA jurisprudence as much as the next guy, this cert grant enhances my concern, previously expressed here and here, that SCOTUS is not allocating its limited time and energy toward addressing the most pressing, consequential and far-reaching criminal justice issues.
A long weekend update
Anyone who took a long weekend missed a lot of news and commentary appearing since the close of business on Thursday. Here are some highlights:
CIRCUIT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- Is the Booker plain error split now finally cert. worthy?
- 8th Circuit decides Pirani plain error en banc
- Third Circuit clarifies(?) its unique approach to Booker pipeline cases
- A reasonable(?) approach by the Fourth Circuit
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- Lots of interesting reports from the sentencing front lines
- USSC FY 2003 data now available!
- Lil' help for Lil' Kim
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- New Jersey AG wants Gomez to spread to the Garden State
- The tension between the prior conviction exception and juvenile offenses
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
SEX OFFENDER SENTENCING DEVELOPMENTS AND COMMENTARY
May 1, 2005
Is the Booker plain error split now finally cert. worthy?
I have done a number of prior posts here and here and here pondering whether the Supreme Court will grant cert on a Booker plain error case to address the deep circuit divisions on the issue. This past week's developments — in which the Third Circuit finally explained en banc in Davis its rationale for sending nearly all Booker pipeline cases back for resentencing (detailed here) while the Eighth Circuit en banc in Pirani adopted perhaps the toughest possible approach to various "pipeline" issues (detailed here) — has only ripened the plain error conflict and further spotlighted the dramatically different "pipeline" justice that federal defendants are receiving in the wake of Booker.
Notably, Judge Heaney closed his Pirani dissent, just like Judge Lucero from the 10th Circuit in Gonzalez-Huerta (as noted here), with a call for Supreme Court action on plain error:
The stated goal of the Guidelines was to create "a system that diminishes sentencing disparity." Booker, 125 S. Ct. at 759. This goal is undermined when circuits apply different standards in determining whether a defendant sufficiently preserved his Sixth Amendment sentencing challenge in the district court, and is further undermined when circuits differ on the question of how to deal with Booker claims on plain error review. Hopefully, the Supreme Court will promptly resolve these differences, and do so in a manner true to the essence of Booker's concern for basic rights of the defendant under the Sixth Amendment.
I have heard that the cert petition from the Eleventh Circuit's Rodriguez decision is still being briefed, and I expect cert petitions are coming from defendants in Pirani and other circuit cases that have been tough on plain error. What seems less predictable is whether DOJ will seek cert in Davis (or in Ameline from the Ninth Circuit if, as has been predicted to me, the government does not get a complete win in that en banc case).
As I have discussed before here and here, plain error presents only a transition problem that the Supreme Court, because of its briefing and argument schedule, likely would not be able to resolve anytime soon. Consequently, I could imagine DOJ deciding plain error is not worth a protracted SCOTUS fight, especially since there are so many more important long-term post-Blakely and post-Booker to focus upon (e.g., the scope and future of the prior conviction exception or the meaning of appellate review for reasonableness).
Nevertheless, no matter how you look at it, the plain error division — which I called a three-ring circus in this post — is an ugly example of disparate justice. And I was especially bemused to see Judge Bye in his Pirani partial dissent running with the circus metaphor:
The phrase "three-ring circus" (referring to the three-way circuit split) has been used to describe the federal circuits' disparate handling of Booker pipeline cases. Such a phrase is descriptive, nonetheless, it is probably more appropriate to characterize the split as a three-ring circus with twelve unique acts each attempting to dazzle us with its compelling logic. Yet, despite the unique nature of each act, like the conspicuous facial hair on the bearded lady, one common theme prevails — the undeniable difficulty in assessing the prejudice suffered by any particular defendant.
New Jersey AG wants Gomez to spread to the Garden State
Though I do not have an electronic copy to post, I can report that New Jersey's Attorney General has recently submitted a letter to the NJ Supreme Court in the state's pending Blakely case which contends the "Supreme Court of Tennessee [in Gomez] was absolutely correct in its interpretation of Booker." This letter seems almost comical because Tennessee's own attorney general, as detailed here, has filed a petition to rehear Gomez which contends that in Gomez the Supreme Court of Tennessee "has overlooked or misapprehended a material proposition of law."
In other words, Tennessee's own AG realizes that Gomez is wrong and needs to be overturned, but New Jersey's AG wants the NJ Supreme Court to rely on Gomez to uphold New Jersey's sentencing scheme. (The Tennessee Supreme Court's ruling in Gomez which found Blakely inapplicable to Tennessee's sentencing scheme is detailed here, and my explanation of why that ruling seems to rest on a complete misunderstanding of Apprendi and Blakely is detailed here.)
Relatedly, Michael Ausbrook over at INCourts has a recent post, fittingly titled More on Misunderstanding Booker by the States, which discusses Gomez and other state rulings falling prey to its misunderstanding of Blakely and Booker.
The tension between the prior conviction exception and juvenile offenses
Many months ago I did this extended post spotlighting the legal debate over whether juvenile adjudications fall within the "prior conviction" exception to the Apprendi/Blakely rule. As noted before, there is a split on this important issue that encompasses not just federal circuits, compare US v. Smalley, 294 F.3d 1030 (8th Cir. 2002), with US v. Tighe, 266 F.3d 1187 (9th Cir. 2001), but also major state court rulings. See State v. Brown, 2004 WL 1490192 (La. July 06, 2004).
Over the weekend I was sent a thoughtful opinion from Washington state on this issue, Washington v. Tagaloa, No. 04-1-03162-8 SEA (Wash. Sup. Ct. Apr. 15, 2005) (available here). Here is the opinion's concluding paragraphs:
This Court does not question that it could make the factual determination of the existence of a prior juvenile adjudication. However, what is called into question is the legal determination regarding that adjudication. Unlike the prior conviction at issue in Apprendi, the instant adjudication may have received fair notice and a reasonable doubt standard, but did not receive "jury trial guarantees." Absent this fundamental protection, the instant adjudication does not qualify under the Apprendi exception. The process adopted for juvenile adjudications may provide sufficient due process protection for the purpose for which it is employed, i.e., rehabilitation, but the procedure falls short of the full panoply of rights required for purposes of sentencing enhancement as an adult.
If we wish to continue with the notion that the juvenile system is indeed separate and apart from the adult system –- with different goals and different protections, indeed different terminology, then it is unjust and unfair to allow juvenile adjudications to be treated as convictions for purposes of sentencing enhancements without the full panoply of rights afforded to adult defendants.
For the foregoing reasons, this court rules that that Mr. Tagaloa's juvenile adjudication may not be counted as part of his adult offender score under the SRA because it violates the due process protections of the Sixth Amendment. A juvenile adjudication does not constitute a prior conviction under the Apprendi exception. The fact of a juvenile adjudication can not be used to increase the penalty for a crime beyond the prescribed statutory maximum because juveniles are not afforded trial by jury to make the determination which is later used to increase an offender score.
May 1, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (4) | TrackBack
Indiana's Blakely fix is now law
Michael Ausbrook at INCourts is reporting here that Indiana's Blakely fix legislation, known as Senate Bill 96 while in development, has become law. As I explained in this prior post, though the state was once headed toward Blakely-izing its sentencing scheme, I believe the enacted version of Senate Bill 96 Booker-izes Indiana's sentencing statutes by making them advisory. Michael Ausbrook in this post explores the possible impact of Indiana's new legislation on sentencing appeals, and he reports that a "lawyer who knows a great deal about Blakely in Indiana has said that Senate Bill 96 will set criminal law in Indiana back decades."
Sex (offenders) in the city
I now have had a chance to read the Eighth Circuit's decision in Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005) (available here), which upholds 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." As noted in this post, Mike at Crime & Federalism has already blogged up a storm about the case, and his three posts here and here and here (along with the comments) get to the heart of the legal and policy issues in the case. Concerning Doe itself, I will just add that the case is especially interesting for its substantive due process analysis and also for its reliance on "common sense" rather than hard evidence about sex offender reoffending. Also, the Doe decision, which provides a thoughtful review of a range of sex offender law and policy issues, provides a helpful list in footnote 4 of the twelve other state statutes that place residency restrictions on sex offenders.
Though a lot more could be said about Doe, the broader story is the new social panic about sex offenders which is, like so many criminal justice developments, driven by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis. (I have prior sex offender posts on the power of the headline-making crime and on the surprising and encouraging data about sex offenses and offenders.) Tellingly, this New York Times article today details that Florida, prompted by two terrible crimes, "will soon begin the nation's most aggressive monitoring of child molesters at a time when dozens of states and localities are re-examining their policies." The NY Times article provides an effective national overview of sex offender developments, though the article lacks a refined discussion of the reach and efficacy of what has now been a decade of new criminal laws focused on sex offenses and offenders.
I am concerned about refined discussions of these laws because I fear they can often be written in broad ways that may harmfully fail to distinguish the truly dangerous from others. Though the term sex offender often brings to mind the worst child molester, many sex offender laws can encompass persons who had underage consensual sex or who merely downloaded the wrong dirty pictures of the internet. (Consider the work of the group of Save Our TexSONS, which seeks to prevent "unfair use of [sex offender] laws to prosecute teenagers engaging in consensual sex.")
Relatedly, I fear that broad residency restrictions, which may prevent offenders from living in cities or other areas in which treatment and support services are more readily available, may undermine efforts to keep sex offenders from reoffending. What seems most important to me is that there are follow-up studies and analyses of the efficacy of the sex offender laws which are now being considered a passed during this period of panic.