January 11, 2005
Another SCOTUS case to deal with (collateral) Blakely concerns?
A crackerjack reader has brought to my attention the fact that, in the Supreme Court's grant of cert. last week in Halbert v. Michigan, 03-10198 (available here), the second question presented could be of significance in the post-Blakely world. Here is the question in full form:
Is Petitioner entitled to resentencing, where counsel failed to render effective assistance by not objecting to improper scoring under Michigan's sentencing guidelines which resulted in Petitioner receiving a considerably longer sentence?
Though, obviously, this question does not directly confront Blakely issues, any further elaboration on the meaning and application of ineffective assistance in the context of (noncapital) sentencing representation could be of great import in the wake of Blakely. The Supreme Court's discussion of these matters in Glover v United States, 531 US 198 (2001), set out only the most basic of considerations.
(And yet, as suggested by Jonathan Soglin at Criminal Appeal in this post, it is not clear that the ineffectiveness question in Halbert v. Michigan is of real concern to the High Court. As detailed by SCOTUSblog in this post, the Court clearly took Halbert to address "the constitutionality of a Michigan procedure that denies a free lawyer to aid an individual who has pleaded guilty but who wants to seek a discretionary appeal in a higher court." The Court sought to confront that issue earlier this Term in Kowalski v. Judicial Circuit Court (03-407), but a standing problem got in its way.)
Reading for a virtual waiting room
While we all wait for Booker and Fanfan, I can suggest some useful (old and new) sentencing reading materials to keep us occupied in this virtual waiting room:
- Though now nearly two months old, the US Sentencing Commission's 15-year report deserves, in my view, far more attention than it has received. (The full report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)
- Though now essentially one month old, I just received my advance hard copy of the latest Federal Sentencing Reporter issue covering Blakely — FSR Volume 17, Number 2 (Dec. 2004) entitled "Further Implications of Blakely." (That issue and other FSR issues are available on-line here.)
- Hot off the presses, the Winter 2005 issue of the Criminal Justice magazine, which is published quarterly by the Criminal Justice Section of the ABA, has a lengthy cover story on Blakely, as well as a shorter article on the recommendations of the ABA's Kennedy Commission, along with its usual collection of fine criminal justice commentary and analysis. (I wrote the Blakely piece, which is entitled "The Roots and Realities of Blakely," and I am told the issue should appear at this site before long.)
In addition, the set of comments flowing from this morning's post about the non-arrival of Booker and Fanfan make for compelling and informative reading of a different sort.
Thinking about new federal reform dynamics
With no Booker and Fanfan today, I have at least another 24 hours to speculate about the post-Booker federal sentencing world. And, though I have previously commented on how fast Congress might react to Booker and Fanfan, today I am wondering how the move of US Sentencing Commissioner Michael O'Neill to become chief counsel of the Senate Judiciary Committee (details here) might impact the sentencing work of both bodies.
At November's USSC hearings (summaries here and here), the questions coming from the Commissioners suggested a possible divide within the USSC over the so-called Bowman fix (aka "topless guidelines") if SCOTUS applies Blakely to the federal sentencing guidelines. As I recall, Commissioners O'Neill and Horowitz seemed to be trying figure out how topless guidelines might work, while Commissioner Sessions seemed concerned about re-building the federal system on the shaky precedent of Harris. I wonder if O'Neill might bring to his new job an affinity for topless guidelines (recall, as detailed here, that topless guidelines seem to be favored by the Justice Department).
Also, it is worth noting that, until O'Neill is replaced on the USSC, there is the potential for the Commission to be evenly split (3-3) on any key votes. For that reason and others, I am hopeful (though not particularly optimistic) that the President can name, and the Senate can confirm, a new Commissioner in short order.
Of course, in Congress and the USSC, nothing can or will move forward until we see Booker and Fanfan. And my sources report that, if the decision does not come tomorrow, then the following Tuesday or Wednesday (Jan. 18 or 19) seems to be the next earliest possible decision day. But if the decision does come tomorrow, I think it is possible there will be hearings in Congress and/or in the USSC before the end of January.
In other sentencing news
Though, yet again, there is no sentencing news from SCOTUS, there are recent developments in a number of other on-going sentencing dramas.
In the death penalty arena, there is news from Connecticut and from California that legal efforts to block executions scheduled for later this month are not succeeding. This article from the Hartford Courant reports on two courts rejecting efforts to slow down the march of "volunteer" Michael Ross to the death chamber, and this article from law.com details the rejection of a novel legal claim by Donald Beardslee by a US District Judge in California.
In the arena of federal sentencing, this article details an on-going battle between the Sixth Circuit and US District Judge Tom Varlan over the sentencing of an elderly man caught selling guns at a flea market. The article is focused on the Sixth Circuit's ruling last week in US v. Allman, No. 04-5313 (6th Cir. Jan. 6, 2005), in which the Court finds no valid basis for the large downward departure granted by the district court. (Note that this is not the same case previously discussed here also involving an inter-court feud over the sentencing of a severely ill man in his 80s, although both defendants are among the 23 East Tennessee men — known in court circles as "the geriatrics" — nabbed by the ATF in an undercover operation. It seems clear from these cases that everyone should be sure to tell their grandparents not to expect any sentencing breaks in the Sixth Circuit.)
More waiting: still no Booker and Fanfan
According to Lyle Denniston at SCOTUS Blog here, today is another no-show for Booker and Fanfan. We may have only one more day to wait, since opinions are also due to be released tomorrow, but now I am starting to think the Supreme Court is enjoying teasing all of us.
Predicting the unpredictable
Despite my prior false predictions of the coming of Booker and Fanfan, there is now some historical precedent for thinking the decision is imminent. The last major challenge to the federal guidelines' constitutionality in Mistretta v. US was argued on October 5, 1988 and decided January 18, 1989. So, even if we do not get Booker and Fanfan today or tomorrow, history suggests the decision should be coming soon.
Rather than make bold predictions, I will simply note that, in addition to Booker and Fanfan, it is possible we will see this week opinions in Roper v. Simmons, the juvenile death penalty case, and in Shepard v. US, the criminal history case. Then again, it is also possible we are due for more waiting.
While we wait, here is a list of a few recent "gearing up" posts:
- Is it finally the big week?
- Is it finally Booker/Fanfan eve?
- Here we go again
- Gearing up for Booker and Fanfan
- Booker and Fanfan pre-reading guide
Additonal posts of note and other background materials on Blakely and Booker and Fanfan can also be found on my Blakely Basics page. And a wealth of additional information can be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.
January 11, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
January 10, 2005
Interesting US Sentencing Commission transition
I have heard tonight that Senator Arlen Specter, new chairman of the Senate Judiciary Committee, has picked US Sentencing Commissioner Michael O'Neill to be the Senate Judiciary Committee's next chief counsel. O'Neill is a former committee staffer and he currently is a law professor at George Mason (which has this announcement about O'Neill's appointment).
The Legal Times has this quote from O'Neill about his new position: "Part of the reason I took this job is that I anticipate being able to do oversight on the DOJ, and the possibility of working on Supreme Court nominations." He also said, "It's such an historic time to be on the committee." Of course, it is also an historic time to be involved with the US Sentencing Commission, but it looks like that body will be one Commissioner short until the President names a replacement for O'Neill.
Dealing during the interregnum
A few months ago I commented on post-Blakely, pre-Booker delays, deals and dodges, and I hope someone systematically studies these matters whenever this interregnum come to a close (which may be real soon). Triggering my interest today, in addition to the recent report on former Connecticut Gov. Rowland's plea deal (detailed here), is news from the White Collar Crim Prof Blog on seemingly sweet federal deals made in another public fraud case and a criminal copyright case.
I wonder if the US Sentencing Commission or others might be able to compare the number and nature of deals made pre- and post-Blakely. Just another fertile area for inquiry (and more proof Blakely ensures permanent employment for sentencing academics and researchers).
UPDATE: And speaking of interesting plea dynamics, this article updates a story, first noted here, concerning an effort by a Chicago white-collar offender to plead guilty to fraud changes without admitting to any Blakely factors.
Is it finally the big week?
I now have heard from three sources that the Supreme Court has announced that it will be issuing decisions on both Tuesday and Wednesday of this week. Thus, it is time, yet again, to strike up the (false?) alarm for the possible arrival of Booker and Fanfan. (I realize my predictions are now even less credible than the wolf-crying boy's, but that won't stop me from saying, yet again, that we may be only days away from the start of the next era of sentencing reform.)
I have already done many, many posts anticipating Booker/Fanfan posts, some of which can be found here and here. However, since the last possible Booker sighting, a number of more recent posts have spotlight relevant recent developments. Thus, as we gear up yet again, here are a few more posts I am planning to review tonight:
- CJ Rehnquist sets notable themes for 2005
- Highlights of a remarkable USSC document
- The WSJ on the federal Blakely mess
- Holiday season highlights
- Suggesting sentencing resolutions
In addition, I think everyone contemplating the future of federal sentencing law and policy should give considerable attention to (1) The Sentencing Project's most recent 3-page report entitled "The Federal Prison Population: A Statistical Analysis," and (2) the important comments by Republican Senators about emphasizing rehabilitation coming from the Gonzales hearing last week.
January 10, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Brand new year, same old Blakely
Though the cases are now dated 2005, the lower court Blakely rulings of the new year look a lot like what we saw the last few months of 2004. Notably, in just the first week of 2005, there were nearly 50 cases discussing or noting Blakely coming on-line from an array of federal and state courts. (California, not surprisingly, continues to set the Blakely caselaw pace with over a dozen Blakely on-line rulings for the week alone).
Based on an all-too-quick-review, the most notable or consequential Blakely cases from last week — besides the Idaho Supreme Court ruling discussed here and developments in Alaska and Ohio and Washington detailed here and here — appear to be:
- State v. Timmons, 2005 Ariz. App. LEXIS 1 (Jan. 7, 2005) (vacating a sentencing on Blakely grounds while covering a number of important Blakely issues)
- State v. Noe, 2005 Tenn. Crim. App. LEXIS 7 (Jan. 7, 2005) (reducing a sentence from six years to five years, over a dissent, on Blakely grounds)
- US v. Swanson, 2005 WL 30507 (7th Cir. Jan. 07, 2005) (ordering resentencing on non-Blakely grounds, though also asserting that the "decisions in Blakely, Booker, and Fanfan, however do not affect the manner in which findings of restitution or forfeiture amounts must be made")
January 10, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack
Who is in federal prison: the debate continues
Late last month here I noted and questioned some recent representations about sentencing and prison populations being made by the US Justice Department. Valuably, both FAMM and The Sentencing Project have recently weighed in on this important topic.
First, FAMM president Julie Stewart responded to some DOJ claims about sentencing and crime rates in a letter to the editor published by the Washington Post, the text of which can be accessed here. Second, and of enormous value, The Sentencing Project has just produced this brief report entitled "The Federal Prison Population: A Statistical Analysis."
As detailed more fully in its report, The Sentencing Project finds that the Justice Department's representation that "two-thirds of all federal prisoners are in prison for violent crimes or had a prior criminal record before being incarcerated" distorts the composition of the federal prison system by conflating categories of offenders. According to The Sentencing Project, "nearly three-fourths (72.1%) of federal prisoners are non-violent offenders with no history of violence."
This report is a must read for its overview of the federal prison population — including growth trends, racial disparities, drug offense sentencing — especially because there will surely be a robust debate over federal sentencing policies and practices in the wake of Booker and Fanfan.
January 10, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (44) | TrackBack
News from the Nutmeg State
After a day of travel, I am back on east coast time and trying to get ready for what might be a big week. But while we wait for Booker and Fanfan, there are interesting capital and noncapital sentencing stories from Connecticut.
In the capital arena, the planned execution of serial killer Michael Ross continues to garner much attention in Connecticut. How Appealing has assembled some of yesterday's stories here, and this morning there are stories on the costs the case has generated, "on the street" reactions, and USA Today has drawn on the case in this article discussing broader death penalty developments.
In the noncapital arena, this New York Times article provides an interesting analysis of former Connecticut Governor John Rowland's federal plea deal (previously discussed here and here). Many passages from the article seem to undermine the notion that the federal sentencing guidelines make offense conduct, rather than discretionary decisions by prosecutors or sentencing judges, the key determinate of sentences imposed:
Lawyers said the timing [of his plea deal] increased Mr. Rowland's chance of being sentenced by a senior Federal District Court judge [Peter Dorsey]who has been challenged by prosecutors in the past for leniency.... Judge Dorsey "would appear to be a great draw for Rowland," said Eugene Riccio, a Bridgeport lawyer who represents individuals in the investigation....
Lawyers familiar with the case said the end result had more to do with federal sentencing guidelines ... than with the sum of his transgressions.
They said prosecutors wanted Mr. Rowland to admit to taking gifts worth at least $70,000, to bolster their case that the 15- to 21-month recommended sentence he faced as a public official under the guidelines was warranted. As long as that figure was reached, the lawyers said, prosecutors were willing to give Mr. Rowland leeway on which gifts to acknowledge as improper. At the same time, Mr. Dow sought to keep the figure below $120,000; even a tad more would have added three months to the recommended prison time.
In the end, the $107,000 compromise paved the way for the recommendation that Mr. Rowland receive a 15- to 21-month sentence, which Judge Dorsey can accept or increase or decrease.
January 9, 2005
Important reading as we prepare for a new sentencing era
For me, my working time at this conference concluded with a great informal Blakely chat this morning with nearly two dozen colleagues. I learned a lot from the dialogue and got excited (yet again) for the possibility we may see Booker and Fanfan as early as this coming week.
Helpfully, just in time as we gear up for the opinion, Villanova Professor (and FSR editor) Steve Chanenson has finalized a terrific article fittingly entitled "The Next Era of Sentencing Reform." The full article can be downloaded below and here is a portion of the abstract:
This article charts a path for criminal sentencing in the wake of the Supreme Court's recent bombshell decision in Blakely v. Washington. Blakely has thrust sentencing systems across the country into turmoil. But Justice O'Connor was fundamentally wrong when, in her Blakely dissent, she exclaimed that "Over 20 years of sentencing reform are all but lost." All is most assuredly not lost. Blakely, properly viewed, is an opportunity - albeit a disruptive one - to re-think and improve our sentencing systems....
The Supreme Court will soon decide whether [Blakely] applies to the Federal Sentencing Guidelines. Regardless of what the Court chooses to do, Congress and the state legislatures are re-evaluating their sentencing systems and looking for Blakely-compliant options.
This article does not seek to shape the Court's opinion, or to predict its decision. Instead, it charts a path for legislatures, sentencing commissions, and sentencing scholars. In this article, I set the groundwork for understanding fundamental elements of sentencing, and show the pieces moved by Blakely. I then examine several popular systemic responses to Blakely. Ultimately, I find their various strengths outweighed by their substantial weaknesses.
In the final section, I propose a new approach that would not only survive Blakely's constitutional commands but can lead us into the next era of sentencing reform. This proposal is not merely a Blakely "fix," but a proposal that retains fidelity to the concerns and principles that led, over the past 30 years, to the modern sentencing reform revolution, and to structured sentencing systems. I propose a system of Indeterminate Structured Sentencing ("ISS"). ISS is an indeterminate sentencing system (that is, a system that includes parole release authority) in which a Super Commission guides both the sentencing and release functions. An ISS system honors judicial discretion but acknowledges the value of structural checks and balances. It permits high sentences in cases where a judge believes them appropriate while limiting the pressure to increase sentences across the board. ISS offers a balanced approach to sentencing that satisfies Blakely while simultaneously being sensible, just, and grounded in sentencing history, theory and practice.
And, after you have read this terrific article, if you still need more to feed your Blakely fix, I am happy to help. Actually, my research assistant deserves the credit for having completed another easy-to-print Word version (with embedded links and a TOC) of the text of this blog covering the last six weeks' posts in 2004. This document can be downloaded below, and prior installments of Word versions of the blog, organized by date, can be found here and here and here.
January 9, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack