May 10, 2005
8th Circuit sets out post-Booker review procedures
As detailed here and here and here, the Eighth Circuit is now setting the pace with post-Booker rulings, and today the Circuit in US v. Mashek, No. 04-2560 (8th Cir. May 10, 2005) (available here) discusses at length its process for post-Booker sentence review. Here is a snippet of the Mashek court's discussion (with citations omitted):
[W]e believe the most appropriate standard for reviewing a district court's interpretation and application of the guidelines is the de novo standard. We see no reason to deviate in this one instance from our normal practice of reviewing de novo a district court's legal conclusions. We would expect that if the Supreme Court intended to change fundamentally the manner in which we review a district court's legal conclusions, even in just one circumstance, it would have said so explicitly. Finally, we believe that applying the de novo standard of review to the application of the guidelines under § 3742(f)(1) before reviewing the resulting sentence for reasonableness ensures fidelity to Congress's goal of diminishing sentencing disparities while preserving the constitutionality of the nowadvisory guidelines.
In summary, post-Booker review of a timely raised challenge to the district court's interpretation and application of the guidelines is a two-step process. First, we will continue to examine de novo whether the district court correctly interpreted and applied the guidelines. We will also continue to review findings of fact for clear error. Finally, we will review a district court's decision to depart from the appropriate guidelines range for abuse of discretion. If the sentence was imposed as the result of an incorrect application of the guidelines, we will remand for resentencing as required by 18 U.S.C. § 3742(f)(1) without reaching the reasonableness of the resulting sentence in light of § 3553(a).
The 8th Circuit also decided some other sentencing cases today, and below I have reprinted the Circuit's official description of the one other published sentencing decision:
US v. Townsend, No. 04-3110 (8th Cir. May 10, 2005) (available here): Iowa state-court conviction could be counted in calculating defendant's criminal history as the conviction was not expunged for any of the reasons set out in section 4A1.2, cmt. n.6 - constitutional validity, innocence or mistake of law; district court correctly counted defendant's jail terms, imposed due to his previous contempts of probation, in calculating his aggregate prior sentence of imprisonment.
Interesting coverage of drug courts
With thanks to CrimProf for the tip, I recommend this thoughtful NPR story about drug courts. The story provides background on drug courts and a nice review of the debate over their effectiveness. The story also reports that the Bush administration is seeking to "boost funding for drug courts from $40 million to $70 million."
Meanwhile, I see from this editorial in the Charlotte Observer that the North Carolina legislature has plans to "eliminate $1 million for the 30 drug court programs" in the state. The editorial laments this development: "Drug courts SAVE the state money. The consequence of eliminating funding is also clear: It would COST the state more than the $1 million it saves."
I have previously provided a lot of resources about drug courts in this prior post.
PBS Frontline examines the "new asylums"
Though I have plans to watch tonight's finale of The Amazing Race, my DVR is set to record tonight's airing of a new documentary on PBS's Frontline about the mentally ill in prison. Entitled "The New Asylums," here is a description of the show from the PBS webpage:
There are nearly half a million mentally ill people serving time in America's prisons and jails. As sheriffs and prison wardens become the unexpected and ill-equipped gatekeepers of this burgeoning population, they raise a troubling new concern: are jails and prisons America's new asylums? With exclusive and unprecedented access to prison therapy sessions, mental health treatment meetings, crisis wards, and prison disciplinary tribunals, FRONTLINE goes deep inside Ohio's state prison system to present a searing exploration of the complex and growing topic of mental health behind bars and a moving portrait of the individuals at the center of this issue.
Today's New York Times has this review of the program, which it calls "enormously disturbing."
10th Circuit joins appeal waiver bandwagon
Because the Tenth Circuit releases its opinions very late in the day, I missed last week that the court on Friday in US v. Green, No. 04-5105 (10th Cir. May 6, 2005) (available here) formally joined other circuits in enforcing a pre-Blakely appeal waiver despite the legal sea change brought by Blakely and Booker. Green is a thorough opinion on the appeal waiver issue (although, as detailed in commentary here and here, I have concerns about the result). Green also discusses a court's limited authority to correct a sentence under Rule 35(a). Here is the Green ruling's opening summary paragraph:
In this direct criminal appeal, we hold that the district court did not have jurisdiction under Fed. R. Crim. P. 35(a) to resentence Defendant more than seven days after the court orally imposed an earlier sentence. We also conclude that Defendant's waiver of his appellate rights — made before the Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004) — is enforceable and bars our consideration of any claims he may assert under United States v. Booker, 125 S. Ct. 738 (2005).
May 9, 2005
Another busy sentencing day for the 8th Circuit
The Eighth Circuit, which has been recently been producing sentencing decisions at a steady clip as detailed here and here and elsewhere, continued to be productive by issuing at least a half-dozen criminal justice opinions today. Below I have reprinted the Circuit's official description of two rulings which seemed most notable from the perspective of sentencing law and procedure:
US v. Brown, No. 04-2156 (8th Cir. May 9, 2005) (available here): Because Missouri withholds substantial civil rights from convicted felons, defendant had not been restored to sufficient civil rights to invoke the provisions of 18 U.S.C. Sec. 921(a)(20) and could be convicted of being a felon in possession of a firearm; defendant's prior drug convictions were "serious drug offenses," and he could be sentenced to the mandatory minimum under 18 U.S.C. Sec. 924(g)(1).
US v. SLW, No. 04-2715 (8th Cir. May 9, 2005) (available here): District court did not abuse its discretion in transferring juvenile for criminal prosecution as an adult; district court correctly applied the factors set out in 18 U.S.C. Sec. 5032; while magistrate judge erred in considering uncharged, unadjudicated conduct in making his report and recommendation, the district court corrected the error and did not consider that information in making its decision; hearsay rule does not apply at juvenile transfer proceedings, and the district court could consider hearsay evidence.
The rhetoric supporting mandatory minimums in the gang bill, HR 1279
I noted in this post that FAMM is sounding the alarm about H.R. 1279, which FAMM calls "an extremely harsh and unnecessary gang bill that includes many new and increased federal mandatory minimum sentences." Helpfully, today TalkLeft in this post and the PRACDL Blog in this post have provided a lot of additional information, criticisms and links concerning H.R. 1279, and I have now found that there is helpful information about the bill and its status available at this official link. Also now available is a 291-page House report (House Report No. 109-74 dated May 5) on the bill, which is available here.
A helpful reporter helpfully pointed out an interesting passage concerning mandatory minimums and Booker starting at page 15 of the House report on H.R. 1279. Here's a selection:
Finally, the bill includes a number of new mandatory minimum criminal penalties with respect to violent gang crimes and other violent offenses. As explained here, mandatory minimum penalties are effective means for ensuring consistency in sentencing, and promote public safety by deterring violent criminals and incapacitating violent criminals who are likely to commit additional violent crimes.
The Supreme Court's recent Booker decision in has eviscerated long-standing and effective sentencing policies adopted by Congress as part of the Sentencing Reform Act of 1984. The evidence is starting to come in, and the picture is not a good one. Federal judges have begun to hand out sentences below the guideline recommended range, citing the discretion they now have under the Booker decision. The Sentencing Reform Act of 1984 was designed to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted disparities among defendants with similar records who have been found guilty of similar criminal conduct. Sentencing judges have started to deviate, and some have announced even prospectively that they intend to do so in more cases. Given the elimination of an effective determinate sentencing guideline system, Congress will need to act quickly in certain areas by imposing mandatory-minimum sentences to protect the public, particularly when it comes to violent gang crimes....
Moreover, mandatory minimum penalties provide the tools for prosecutors to secure the cooperation of gang members to dismantle violent gang organizations and solve violent crimes where the witnesses may only be other gang members. Without such a penalty, gang members will not cooperate with law enforcement; they will simply turn their back on cooperation, do the time, and gang violence will continue to expand and to threaten our communities.
Regular readers should find a lot of this language familiar. This text and other materials in the House report come from a research paper (discussed in this post) that was making the rounds in Washington last month. That document, which was full of rhetoric concerning the value and need for mandatory minimum penalties, made over-statement an art-form and was quite one-sided on all the issues covered. I think the same can be said about what I see so far in this House Report.
I doubt I will get a chance to read the bulk of this House report on the gang bill, but I highly encourage readers to spotlight other sections of the report that merit focused consideration.
May 9, 2005 in Booker and Fanfan Commentary, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Sixth Circuit discusses forfeiture issues
I was pleased to see the Sixth Circuit unveiled this attractive new website today (as detailed in this post, form as well as substance is always important to law bloggers). I was also intrigued to see that the circuit used an unpublished opinion in US v. Hall, No. 04-5047 (6th Cir. May 9, 2005) (available here), to address the application of Blakely and Booker to a criminal forfeiture award.
In Hall, a jury determined the amount of the defendant's ordered forfeiture, but Hall objected on appeal that this determination was on "the basis of the preponderance-of-the-evidence standard rather than the beyond-a-reasonable-doubt standard." Emphasizing the Supreme Court's pre-Apprendi decision in Libretti and the circuit's post-Apprendi rejection of a similar claim, the Sixth Circuit turned back the defendant's claims. And the concluding paragraph in Hall gave the ruling an interesting extra spin:
The absence of a statutory maximum or any sort of guidelines system indicates that forfeiture amounts to a form of indeterminate sentencing, which has never presented a Sixth Amendment problem. Like the Seventh Circuit, we fail to see how Booker requires us to overturn our prior precedent in this area (Corrado) or allows us to turn our back on the Supreme Court's prior ruling in this area (Libretti). Hall's effort to extend Apprendi and Booker to criminal forfeitures, accordingly, is rejected.
The (medical) costs of long sentences
The Tuscon Citizen has this thoughtful article about Arizona's aging prison population and the rising health-care costs associated with this phenomenon. Here are some highlights from the article's discussion of an issue impacting prisons nationwide:
Arizona's prison inmates are getting older, sicker and they are staying behind bars longer, driving up health-care costs that have to be shouldered by taxpayers....
Arizona, with more than 32,000 inmates, mirrors a national problem, as its prison health-care allocations have increased 78 percent in the past decade. And because aging inmates, those 55 and older, can cost three times as much to care for as younger inmates, experts warn they could potentially bankrupt some of the nation's already cash-strapped prison systems.
Officials blame longer sentences and truth-in-sentencing guidelines that virtually abolished parole.... All this means states across the country are scrambling to find ways to offset mounting medical expenses racked up by older inmates or grappling with adopting early-release programs for elderly inmates and those who are chronically or terminally ill. At least 16 states provide special housing units for geriatric inmates, and soon Arizona will join more than two dozen states that operate hospice facilities inside prisons to provide end-of-life care at a reduced cost.
May 8, 2005
More Booker data coming soon?
It has now been nearly a month since the US Sentencing Commission has updated its post-Booker data. (The last data report, with cases coded through April 5, is available here and discussed briefly in this post.) Of course, the USSC has been busy finishing up its report of 2003 sentencing data (discussed here) and trying to beat back the bad Booker fix bill moving through the House (through this letter and perhaps other means). Nevertheless, I am again getting itchy to see the latest state of post-Booker sentencing in the district courts, especially the federal sentencing system is probably now back to processing over 5000 cases per month.
Moreover, I continue to be eager, as noted in this prior post, for post-Booker circuit court data. My sense is that the pace of circuit Booker rulings has shifted into high gear (except in the Ninth Circuit, where we are still awaiting an en banc ruling in Ameline). A quick on-line search tonight produced over 750 federal appellate decision mentioning Booker, and this list leaves out at least some unpublished dispositions. Whenever we get Booker circuit data, I will be especially interested to compare affirmances and remands of various sorts among the circuits taking divergent approaches to plain error and Booker other pipeline issues.
Notably, as detailed in this post, later this month the USSC will help conduct the 14th Annual National Seminar on the Federal Sentencing Guidelines. I suspect the USSC will update and make public its post-Booker data for that event, but I hope we might get at least some new data even sooner.
Larry Solum at Legal Theory Blog finds time every Saturday to recommend a new or old legal theory book through his Legal Theory Bookworn posts (recent examples are here and here). Though I doubt I will be as regular as Larry, I like the idea of spotlighting new or old sentencing books wich merit attention (since, as detailed here and here and here, there are not enough new sentencing articles to keep us all busy).
I was inspired to do a sentencing bookworm post after seeing this review of an interesting just published book entitled Downsizing Prisons: How to Reduce Crime and End Mass Incarceration by Michael Jacobson. Here is a brief blurb about the book:
Downsizing Prisons examines specific ways that states have begun to transform their prison systems. Jacobson offers practical policy solutions and strategies, including changing how parole and probation agencies operate, significantly reducing punitive sentencing and "technical" parole violations, and supporting drug-treatment programs for low-level drug offenders. These policy changes can actually increase public safety as well as save money.
This blurb comes from this website which spotlights a recent forum hosted by the Open Society Institute to discuss ideas in Downsizing Prisons. An interesting summary of that discussion is available at this link.
Sunday sentencing stroll around the web
Over at SCOTUSblog in this post, Tom Goldstein — a deserved member of the National Law Journal's "40 under 40", who is profiled here — paid this blog a very nice complement when noting this recent post taking a sentencing tour around the blogsphere. So, hoping to keep up the good work, here's web stroll around sentencing items catching my eye:
- As detailed here, FAMM is sounding the alarm about the prospect of bad sentencing legislation moving forward in the U.S. House: "Sometime during the week of May 9th, the U.S. House of Representatives is expected to vote on H.R. 1279, an extremely harsh and unnecessary gang bill that includes many new and increased federal mandatory minimum sentences."
- At law.com, I see this article discussing Irons v. Carey, the habeas case in the Ninth Circuit in which the panel is questioning AEDPA's constitutionality (How Appealing first flagged the case here and I discussed it here).
- The federal defender blogs have interesting new entries reviewing a number of recent Booker decisions at the Seventh Circuit Blog and at the Tenth Circuit Blog.
- And, returning to the National Law Journal's "40 under 40" list, I also see interesting profiles of Blakely victor Jeff Fisher and the new head of DOJ's Criminal Division Alice Fisher. (I do not think they are related.)
I am still holding out hope that I may someday be named to some magazine's list of 57 under 5'7" (although I am not expecting Randy Newman to nominate me for the award).
Interesting death penalty data from Ohio
As this article details, the AP has collected interesting data on Ohio capital prosecutions (details here and here). The article leads with the finding that "offenders facing a death penalty charge for killing a white person were twice as likely to go to death row than if they had killed a black victim." TChris at TalkLeft in this post spotlights the impact of race in this Ohio study, although The Idealist in this post has questions about the Ohio data and its reporting. Of course, DPIC is the place to go for loads of information about race and the administration of capital punishment.
Though the race issue always captures attention, I found the article's (mostly anecdotal) discussion of plea bargaining and of county-by-county differences in capital case processing to be most interesting aspect of the AP's research. And this follow-up article highlights that the high cost of capital prosecutions keeps small counties from being able to pursue death penalty cases the same way larger counties can.
Relatedly, I see that these same basic issues are being discussed by the folks at the Connecticut Law Blog: this post (referencing this interesting article) reviews the stalled investigation into whether the state's death penalty is racially biased, and this post (following up my query) details all the monies spent in all the litigation over whether serial killer Michael Ross will be allowed to volunteer for execution.