June 11, 2005
Applying Apprendi to juvenile bind-over
Thanks to a helpful reader, I found this fascinating article from the Dallas Morning News which reports that "State District Judge Manny Alvarez on Friday dismissed a murder indictment against Marco Lopez, 16, saying the court lacked jurisdiction over the case because the teenager was transferred to the adult system without the blessing of a jury."
I know lawyers have previously claimed that Apprendi might impact judicial fact-finding required for a juvenile transfer to an adult court (where, typically, a much higher maximum sentence is available). But I have not previously heard of a court actually extending Apprendi to such bindovers. Indeed, the article states:
In his opposing motion, [Assistant DA] Rogers argued that defense attorneys in other states have unsuccessfully tried to use the same Supreme Court case to influence juvenile transfer cases. "No other court in the United States has extended Apprendi to this level," Mr. Rogers said.
Interesting stuff, and an issue to follow as this one case is appealed and others are brought with similar claims: "Rogers said he will appeal the ruling [and attorneys involved] in the case said the ruling is likely to spur a flurry of similar motions."
Another sentencing week to remember
It was yet another big sentencing week, as you can see based on this review of just some of the major posts from the past seven days:
SUPREME COURT DEVELOPMENTS AND COMMENTARY
- A quick sentencing perspective on a possible new Justice
- A result in Raich and, of course, Booker GVRs
- Raich commentary galore
- Rehnquist's capital legacy
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- The latest news on Blakely in Tennessee
- News on Oregon's Blakely fix bill
- New York's highest court upholds state's felony offender law!
- Three observations on Rivera
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- Judge Presnell on fast-track disparity
- District court dispatches
- Ebbers' plea for leniency
- DOJ's post-Booker litigation policies and plans
CIRCUIT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- Important disparity statement (dicta?) from the 1st Circuit
- 5th Circuit discusses Booker resentencings
- Doozy DC dicta on Booker
- A window into the Booker pipeline mess
- Move along, little appeal (aka quantity and speed kills effective appellate review)
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- More (minor) pardons from President Bush
- Another challenge to sex offender law fails
- Fantastic Columbia Law Review issue at a discount
- The Constitution Project releases principles for sentencing reform
- A Blakely blank spot in sentencing reform principles
June 10, 2005
Ebbers' plea for leniency
It typically does not make news when a federal defendant asks for leniency. But when that defendant is former WorldCom Inc. CEO Bernard Ebbers, then CNN and the AP and the CBC and the NY Times and the Washington Post are all over the story.
Interestingly, the brief that Ebbers' legal team filed in US District Court on Friday was "accompanied by 169 letters of support written by his friends and beneficiaries of his charitable donations," and it cited "the 63-year-old's good character, age, poor health and low risk of repeat offense as reasons to impose less than the 'draconian life sentence' under the sentencing guidelines."
UPDATE: Peter Henning at the White Collar Crime Prof Blog is boldly predicting in this post that Ebbers' sentence "will be in the 8-10 year range."
Two interesting non-Booker items from the circuits
Though the busy beavers at the Eighth Circuit have the Booker pipeline still whooshing along with yet another big round of dispositions on this official opinion page, it otherwise seems to be a relatively quiet day on the Booker front. Consequently, I have a chance to note two interesting non-Booker circuit dispositions today:
From the Fourth Circuit, Judge Gregory provides an interesting little dissent (available here) from his colleagues' refusal to reconsider en banc the court's earlier rejection of an ineffective assistance claim in the capital habeas case of Walker v. True, No. 4-22 (4th Cir. Mar. 25, 2005) (original panel decision available here). Here is the opening paragraph of Judge Gregory's dissent from the denial of en banc consideration:
This case, if distilled to its essence, asks this question: what level of legal assistance for defendants in state capital cases is tolerable enough to justify this Court's denial of the protection of the "great writ"? Because the level of representation at the sentencing phase of Walker's capital case was too low to be tolerable under a fair assessment of his Sixth Amendment rights, I respectfully dissent from the order denying rehearing en banc.
From the Ninth Circuit, today we get Huftile v. Miccio-Fonseca, No. 03-16734 (9th Cir. Jun. 10, 2005) (available here), which addresses the proper procedural means for a defendant to challenge in federal court his civil commitment under California's Sexually Violent Predators Act. Huftile is factually interesting and legally intricate, and Mike at Crime & Federalism in this post analyzes the decision better than I can on a late Friday afternoon.
More (minor) pardons from President Bush
With all the appellate fireworks this week (see, e.g., here and here), I missed the news that President Bush granted seven pardons earlier this week. The basic details can be found in this AP account and this DOJ press release, but Ellen Podgor has the real scoop in this post over at the White Collar Crime Prof Blog. She notes:
[F]our out of seven of the pardons granted are clearly white collar and six out of seven could very well be. What can also be said about these pardons is that they are relatively minor offenses (exception perhaps the one drug offense and the conspiracy to commit mail fraud), and that just looking at the names — men seem to be the major recipients of the pardons.
Also, in this post over at RedState.org, Buckland comments on the "extreme randomness of the pardons," and then asks: "If it's a good thing to pardon 30 year old, minor, federal crimes then we should do it for all. Why this gang of 7?" Over at Blogcritics.org, this posts raises similar questions.
Late last year, when President Bush issues a similar set of pardons, this blog and some others buzzed about Bush's stingy pardon practices. Here are some of the earlier posts on this interesting topic:
- Bush's stingy pardon practice
- More pardon buzz
- Media criticism of Bush's pardon practice
- The Washington Post on Bush's pardons
News on Oregon's Blakely fix bill
This article from the Salem Statesman Journal provides a terrific account of the proposed Blakely fix legislation moving along in Oregon. Here are selections from the article detailing the bill's proposed new sentencing procedures:
Some criminal defendants will face two jury proceedings, instead of one, under a bill that allows Oregon to continue to use aggravating factors to lengthen prison sentences. The Senate passed the bill on a 28-1 vote Thursday and sent it to the House. There was no debate....
So-called "departure sentences" account for 200 to 300 new cases annually, according to state officials. The new procedures also would apply to an estimated 200 defendants whose sentences have been returned to circuit courts.
Under Senate Bill 528, prosecutors would have to tell defendants upon indictment — or soon afterward — whether they will bring up "enhancement" facts at trial that could lead to longer prison sentences. Enhancement facts relating to the crime, such as the use of a gun, would be considered by jurors at the same time they decide guilt or innocence. The trial judge could defer that consideration to a follow-up sentencing phase, however, if it could be "unfairly prejudicial" to the defendant. Enhancement facts relating to the defendant, such as whether racial or sexual motivation existed, would be considered by jurors in a separate sentencing phase if they found the defendant guilty.
I am intrigued and pleased to see this legislation, which responds to the new Sixth Amendment doctrine through Blakely-ization of sentencing procedures, incorporates a kind of offense/offender distinction in its jury procedures. (I a discuss the offense/offender distinction at length in my Conceptualizing Blakely article).
For a (now slightly-dated) review of other state Blakely fixes, check out an April post on the State of state Blakely fixes and high court rulings.
June 9, 2005
Three observations on Rivera
After having a chance to read closely the majority opinion of the New York Court of Appeals in Rivera, which upholds the constitutionality of the state's persistent felony offender statutes (basics here), three big thoughts rush to mind:
1. The decision seems cert. proof: Because the Rivera court based its ruling on a particular (though debatable) interpretation of the state's statutes, I think it would be unlikely that the Supreme Court would have much interest in giving the decision a second look.
2. What about state constitutional law?: The New York State Constitution in Article I, sec. 2 says: "Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever." Perhaps the defendant in Rivera did not also bring a state constitutional law claim (or perhaps such a claim has been resolved in earlier decision). Nevertheless, as I suggested in this post a few month ago, I think state constitutional law claims can and should play a larger role in the post-Blakely universe.
3. The continuing importance of the "prior conviction" exception: A critical component of the Rivera decision is the continued vitality of the Almendarez-Torres "prior conviction" exception. If Justice Thomas gets his way and the exception gets undone by the Supreme Court, New York will certainly have to alter the operation of its persistent felony offender statutes. Rivera is thus a good reminder that many states without significant Blakely problems may still end up with a significant Sixth Amendment mess if (when?) the Almendarez-Torres "prior conviction" exception is overruled.
A plea/sentencing ruling of note from the 9th
What a day for appellate court sentencing decisions: the Booker pipeline is flowing, the NY high court is dodging Apprendi, and the First Circuit talks of state/federal disparities. To all this appellate fun we can also add an interesting Ninth Circuit ruling in US v. Davis, No. 04-50030 (9th Cir. June 9, 2005) (available here). Here is the opening paragraph:
We must decide whether a district court has discretion to permit a defendant to withdraw his guilty plea prior to sentencing when the district court finds that defense counsel “grossly mischaracterized” the defendant’s possible sentence, but also finds that the mischaracterization did not actually prejudice the defendant as is required to invalidate a plea post-sentence. We answer “yes.” Because the district court did not believe it had such discretion, we vacate and remand for reconsideration of defendant’s motion to withdraw his plea.
Needless to say, this Davis ruling could be of great interest to other defendants seeking to withdraw a plea based on counsel's pre- or post-Booker/Blakely sentencing advice.
Important disparity statement (dicta?) from the 1st Circuit
Thanks to Appellate Law & Practice's post here, I see the First Circuit has provided some food-for-thought (dicta-for-thought?) today in US v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) (available here). As AL&P spots, at the end of a lengthy opinion, the Wilkerson court's explanation of a plain error remand seems to endorse post-Booker consideration of disparities between state and federal sentencing:
The district judge sentenced Wilkerson to the lowest available sentence under the Guidelines. He repeatedly expressed his concern about disparate treatment between federal and state court sentences in similar cases, but stated that the Guidelines did not permit him to take that disparity into account. The district judge also observed that Wilkerson had the most horrible young life he had seen in 17 years on the bench. Both the need to avoid unwarranted sentencing disparities and the history and characteristics of the defendant are among the factors to be considered by the now advisory Guidelines. 18 U.S.C. § 3553(a). As this court recognized in Heldeman, where there is a reasonable indication that the district judge might well have given a different sentence under an advisory guidelines regime, and it would be easy enough for him to say no with a minimum expenditure of effort, we are persuaded that remand is required. We express no view on whether defendant should be resentenced or on any possible resentence.
I am sure prosecutors are not going to be keen on this passage. Indeed, I would bet they will seek re-hearing on this point since, as noted in this post, DOJ has been saying it will appeal any district court sentence with a variance based on comparisons to state sentencing laws. Wilkerson as it stands seems to approve such comparisons.
New York's highest court upholds state's felony offender law!
In a major state Blakely ruling — which addresses in a slightly different procedural posture the issues considered last week on habeas by the Second Circuit in Brown (basics here, commentary here) — the New York Court of Appeals in People v. Rivera, No. 86 (N.Y. June 9, 2005) (available here) has upheld the constitutionality of the state's persistent felony offender statutes.
Rivera is rich and interesting in so many ways (in part because of two nuanced dissents). The decision mostly rests on a reaffirmation of the court's prior interpretation that the state's persistent felony offender statutes requires "no additional fact-finding beyond the fact of two prior felony convictions" for an enhanced sentence. But a wondrous footnote 8, which walks through some of the fact/judgment ideas I developed in this recent post, provides (perhaps) a back-up justification for the ruling:
In New York, the exercise of this type of discretion [in applying the felony offender enhancement] has never fallen to juries, except in the unusual context of capital cases. In Apprendi, [Ring, Blakely and Booker] all of [the] prohibited judicial findings relate to the crime for which the defendant was on trial and, as quintessential fact questions, would properly have been subject to proof before the jury, in stark contrast to traditional sentencing analysis of factors like the defendant's difficult childhood, remorse or self-perceived economic dependence on a life of crime (cf State v Rivera, 102 P3d 1044, 1058 [Haw. 2004] [distinguishing between "intrinsic" aspects of the crime itself, which must be proved to the jury, and "extrinsic" characteristics of the defendant, which are subject to judicial determination]).
Although we do not rest our decision on it, we note that the prohibited findings in these Supreme Court cases are thus readily distinguishable from the subjective determination by the sentencing court operating under our recidivism statutes in this case. Our statutes contemplate that the sentencing court — after it has adjudicated the defendant a persistent felony offender — will consider holistically the defendant's entire circumstances and character, including traits touching upon the need for deterrence, retribution and rehabilitation unrelated to the crime of conviction. This is different from the type of fact-finding involved in Apprendi.
Move along, little appeal (aka quantity and speed kills effective appellate review)
Can you hear that whooshing sound? It's the sound of appeals rushing through the Booker pipeline. Already this morning the Sixth Circuit's opinion page has a half-dozen dispositions with sentencing issues, and the busy beavers at the Eighth Circuit have on this official opinion page another half-dozen dispositions as well. And though the Ninth Circuit has a lot of catching up to do, an on-line hunt reveals that, aided by its Ameline limited remand approach, the Ninth has already been able this week to punt more than a dozen cases back to the district courts.
Needless to say, because there are so many cases, I cannot keep up with all the action. When I do find time to check out some of these decisions, I am frequently discouraged by the analysis (or lack thereof) that I see. For example, the Sixth Circuit today in US v. Williams, No. 04-6191 (6th Cir. June 9, 2005) (available here), resolved a case which raised important post-Booker ex post facto issues. But, as one lawyer noted in an e-mail to me, the "court's decision on the issue was both anti-climatic and a classic application of ipse dixit resolution.... The court gives no explanation for its ruling, and in fact does not even mention the term 'ex post facto.' [Williams] decides a significant and thorny question arising from Booker without any explanation except that it the 'most appropriate thing to do.'"
Even more disconcerting is a little unpublished ruling on reasonableness coming today from the Eighth Circuit today. Though the decision in US v. Verdinez-Garcia, No. 04-3180 (8th Cir. June 9, 2005) (available here) provides precious little background, the court's disposition seems tantamount to a conclusion that a guidelines sentence, even without an accompanying explanation, is per se reasonable:
We conclude that the district court did not abuse its discretion by imposing an unreasonable sentence. There is no dispute that the court correctly determined the Guidelines sentencing range, and although the court said little about the sentence it imposed, there is no indication in the record that the court failed to consider the circumstances of Verdinez's reentry [to see his terminally ill father] — which he brought to the court's attention in the presentence report and at sentencing — when it sentenced him within the Guidelines range.
Ultimately, I do not think it is fair to pick on these Sixth and Eighth Circuit dispositions alone. My sense is that every circuit was overburdened with the number of criminal appeals it had to resolve even before Blakely and Booker came along, and I suspect the added workload brought by these cases feels overwhelming. The sheer quantity of appeals — as well as a need for speed, since some sentencing challenges could be moot if a decision is slow to come — makes it all but inevitable that the quality of justice will be strained. (Consider also how these dynamics make unsuprising every circuit's endorsement of appeal waivers and the fequent application of "plain error" shortcuts, either through rapid remands or strong presumptions.)
District court dispatches
It has been a while since I collected links to newspaper articles about district court sentencings, but a number of pieces this morning seemed worth spotlighting:
- This article from Philadelphia reports on a significant variance in a fraud case involving a defendant who "once was considered a 'super clerk' on the floor of the Philadelphia Stock Exchange."
- This article from Texas reports on the sentencings in drug cases of four members of the so-called Texas Mexican Mafia.
- This article from Rhode Island provides background on next week's scheduled resentencing of former Providence Mayor Buddy Cianci and reports that federal prosecutors say that Cianci "is making misrepresentations about financial losses he says he has suffered as a result of his racketeering-conspiracy conviction."
June 8, 2005
Fantastic Columbia Law Review issue at a discount
In a number of prior posts (e.g., here and here), I have lavished deserved praise on the Columbia Law Review for its recent symposium "Sentencing: What's at Stake for the States?". The kind folks at CLR were kind enough to send me an advance copy of its May issue with all the articles from the event. I am truly awed and overwhelmed by all the great sentencing pieces to be found therein. And today I received this thoughtful note from CLR's editor-in-chief:
I wanted to offer readers of your blog a discounted purchase price on copies of the issue. Because this issue is about twice the size of our normal issues, we've set the price for the general public at $25 (including shipping and handling), but with the special blog order form [available for download below], readers of your blog can purchase individual copies at $20 a copy using the form.
Though I believe individual articles will eventually be made available on the CLR website, all true sentencing maniacs will want a copy of the full issue for effective beach reading.
The 2d Circuit's recent Apprendi habeas ruling and distinguishing finding offense facts from making sentencing judgments
The Second Circuit Blog today has this interesting commentary on the Second Circuit's notable ruling late last week concerning Apprendi's applicability to New York's persistent felony offender statute in Brown v. Greiner (basics here). That commentary laments that "too much has been made of this exceedingly narrow decision," and it correctly emphasizes that the Second Circuit's ruling was applying AEDPA habeas standards and that Brown "is limited to cases that became final before any of the post-Apprendi cases had been decided."
The lengthy critical discussion of Brown at the Second Circuit Blog merits a close read, and it concludes by noting that New York's highest court has a case pending on direct appeal that will require it to address directly whether New York's persistent felony offender statute is constitutionally sound in light of the post-Apprendi decisions in Ring and Blakely.
In a future post (and in a future article with the working title "Conceptualizing Booker"), I hope to explain why the ruling in Brown is perhaps not quite as "curious" as the Second Circuit Blog suggests. Let me preview my idea here and encourage comments from readers: the Second Circuit's decision in Brown, as well as the recent Ohio decisions which find Ohio's sentencing scheme largely dodges Blakely problems, both suggest there is an important constitutional distinction to be drawn between (1) finding offense facts that increase applicable sentences (which is now clearly a task for juries), and (2) making sentencing judgments that increase applicable sentences (which is a task that arguably can still be given to judges).
This proposed distinction between finding offense facts and making sentencing judgments dovetails somewhat with the offense/offender distinction developed in my Conceptualizing Blakely article, but it is not the exact same idea. Indeed, the offense/offender distinction cannot fully justify the Booker remedy, since federal judges applying advisory guidelines are still finding offense facts when determining the guidelines advisory ranges. But, what makes post-Booker sentencing different is that, as a result of the remedy devised by Justice Breyer, federal judges are now plainly required to make sentencing judgments using the 3553(a) factors concerning whether to follow the guidelines.
Put another way, the Apprendi-Blakely cases can (and perhaps should) be understood to demand only that juries have a role in finding legally essential offense facts, and these cases do not preclude a judges from making broader sentencing judgments based on facts of all sorts. (This idea also dovetails somewhat, but not perfectly, with the fact/law distinction emphasized by Judge Easterbrook in Carpenter last month.) Notably, support for this reading of the Apprendi-Blakely cases can be drawn from Justice Scalia's concurring opinion in Ring, where in a final paragraph he asserts that the Ring holding demands "that the jury must find the existence of the fact that an aggravating factor existed," but still allows states to "leave the ultimate life-or-death decision to the judge."
June 8, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
More from the 4th Circuit on appeal waivers
The Fourth Circuit today in US v. Johnson, No. 04-4376 (4th Cir. June 8, 2005) (available here) reiterated the consensus circuit view that "the issuance of Booker after the plea agreement was reached does not render [the defendant's] plea unknowing or involuntary" and thus does not provide a basis for upsetting an appeal waiver. Of course, another Fourth Circuit panel already cover this ground two weeks ago in Blick (available here), although Judge Michael dissented in Blick asserting that "a defendant in this circuit cannot prospectively waive the right to appeal constitutional violations at sentencing." Notably, the Johnson Court does not engage with Judge Michael's points in Blick, nor does it address the idea (raised here and here) that it is now against public policy, based in congressional-intent concepts and drawing on Justice Breyer's remedial work in Booker, to let prosecutors and defendants opt-out of appellate review because Congress strongly favors the "retention of sentencing appeals ... to iron out sentencing differences." Booker, Breyer slip op. at 21.
A window into the Booker pipeline mess
Today's Eleventh Circuit decision in US v. Sears, No. 03-16550 (11th Cir. June 8, 2005) (available here) provides a window into the mess in lower federal courts in the wake of Booker. In Sears, the court has to sort out the confluence of a prior 11th Circuit ruling, a district court resentencing, and a Supreme Court GVR. Sears caught my eye particularly because of this account of what happened at the district court's February resentencing:
The district court advised the Appellant that it would sentence him in accordance with the Booker decision, as he had previously requested, if he wished the court to do so. The court pointed out that the first time around it had sentenced the Appellant to the highest sentence it could while treating the guidelines as binding. It explained that treating the guidelines as advisory, rather than mandatory, could result in a higher sentence. The Appellant, after consulting with his attorney during a recess, elected not to be sentenced de novo in accord with the Booker decision but instead to have the district court simply correct the supervisory release terms as the court of appeals' mandate required. That is what the district court did.
On appeal, the 11th Circuit now affirms by stressing that Sears is "a case in which the Appellant actually waived the right to be sentenced in accord with Booker after that decision came out. The Appellant could have had the relief he seeks now, but he knowingly elected to forgo it. In these circumstances, we will not give the Appellant yet another bite at the Booker apple."
Among other reactions, I am pondering why the defendant, being resentenced in February 2005, could "waive" resentencing according to Booker. As I have suggested in posts about appeal waivers (see here and here), the specific remedy devised by Justice Breyer in Booker did not really grant defendants new rights, rather it devised a new advisory guideline system to avoid constitutional flaws identified in the operation of a mandatory guideline system. I thus find puzzling the idea that defendants can "waive" some "right" to be sentenced under the new constitutional advisory system and thereby obtain resentencing under the old unconstitutional mandatory scheme.
Of course, as I have suggested in other posts here and here, due process/ex post facto principles might give defendants a right not to receive an increased post-Booker sentence based on pre-Booker conduct. But the district court's suggestion of a possibly higher sentence upon resentencing suggests that this possible due process/ex post facto right is not the right being "waived" in the Sears case. Thus, it seem all the Sears action is premised on the questionable assumption that defendants can "waive" their "right" to be sentenced in a constitutional manner in order to be sentenced within an unconstitutional system.
Perhaps an easier way to ponder this issue is to consider whether defendants who committed their crimes before Booker might now have a unilateral right to demand to still be sentenced under the pre-Booker mandatory guidelines system and thereby preclude a sentencing judge from considering the broader 3553(a) factors that Booker brings to the fore. If one does not think a defendant has such a unilateral right, then what transpired in Sears should seem a bit hinky. Or, to restate this matter by abusing the 11th Circuit's metaphor, I think every sentencing after January 12 should be taking bites from the Booker federal sentencing apple, even if a defendant might want his sentencing to bite from the pre-Booker (now unconstitutionally bitter) federal sentencing orange.
Notable news from Tennessee
Lots of interesting sentencing news coming from Volunteer State:
- On the Blakely front, as foreshadowed in this post, yesterday Tennessee Governor Phil Bredesen signed the state's Blakely fix legislation. As explained on this helpful page which collects Tennessee Blakely materials, the fix "eliminates presumptive sentencing from Tennessee's sentencing law [replacing] former presumptive sentence provisions ... with a series of guidelines that include enhancement and mitigating factors and a statement of principles and sentencing considerations." In other words, Tennessee's sentencing provisions have been Booker-ized, as the "new law requires the judge to consider, but not be bound by, these advisory guidelines to arrive at an appropriate sentence which is subject to appellate review."
- On the death penalty front, this AP story details that, in the state's Supreme Court, a "condemned killer is challenging Tennessee's method of lethal injection, calling it an illogical process in part because it includes a drug forbidden in the euthanasia of animals." More on recent challenges in other states to lethal injection protocols can be found at posts here and here and here.
- And speaking of the Tennessee Supreme Court, this story details that Chief Justice Frank Drowota announced earlier this week that he will retire from the state's highest court Sept. 2. In addition to noting that CJ Drowota was the author of that Court's problematic Gomez decision on Blakely (basics here, problems here), I cannot help but wonder if this foreshadows a summer of chiefly retirements. I also will boldly predict that we will not be seeing the development of a Tennessee Supreme Court Nomination Blog to rival the work being done here.
A Blakely blank spot in sentencing reform principles
As evidenced by this AP story already appearing nationwide, the announcement on Tuesday by The Constitution Project's Sentencing Initiative of this set of "Principles for the Design and Reform of Sentencing Systems" is already generating some press coverage. Though I have already commented briefly on these principles in this post, I realized this evening that these principles have a Blakely blank spot in that they make no mention whatsoever of incorporating jury decision-making or jury values into the sentencing process.
The principles do speak to sentencing procedures in point 5, which states:
Meaningful due process protections at sentencing are essential. Fair notice should be provided and reliable fact finding mechanisms ensured. Judicial sentencing decisions should be subject to appropriate appellate review.
Relatedly, the principles also criticize the federal sentencing guidelines for placing "excessive emphasis on conduct not centrally related to the offense of conviction." Nevertheless, as revealed by the reference to "judicial sentencing decisions," the principles suggest a judge-centered vision of sentencing that seems more in harmony with the ideas and themes expressed by Justice Breyer in his Booker remedy opinion than by Justices Scalia and Stevens in their Blakely and Booker opinions.
Though I am generally sympathetic to a judge-centered vision of sentencing, in the wake of Blakely I have come to see a number of potential virtues in incorporating jury decision-making and/or jury values into the sentencing process in some ways. As detailed more fully in my recent "Conceptualizing Blakely" article, I believe Blakely expresses a fundamental and sound principle that defendants have a right to require the prosecution to prove to a jury all offense conduct for which the state seeks to impose criminal punishment. I am a bit disappointed that this "Blakely principle" gets no attention in the Sentencing Initiative's initial statement of design principles, though perhaps it will get some play in the forthcoming background report and specific recommendations for a post-Booker federal sentencing scheme.
June 8, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, 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
Legislative briefing on "The Girlfriend Problem"
I have received an announcement of a legislative briefing planned for next week in Washington DC entitled "The Girlfriend Problem: How Sentencing Laws Affect Women & Children." Though the briefing is aimed at House staffers and Representatives, I have been told that this event is open to others to attend. More details are available at this link, and here is part of the announcement's account of issues to be covered:
Women are the fastest growing group in the ever-expanding prison population. Sentencing laws have caused the number of women behind bars to explode, leaving in the rubble displaced children and overburdened families. Current drug laws punish not just those who sell drugs, but also a wide range of people who help or associate with those who sell drugs....
In too many cases, women are punished for the act of remaining with a boyfriend or husband engaged in drug activity, who is typically the father of her children. Many of these women have histories of physical and sexual abuse and/or untreated mental illness.
Another challenge to sex offender law fails
As has already been noted here and here by others in the blogsphere, the 11th Circuit on Monday in Doe v Moore, No. 04-10279 (11th Cir. June 6, 2005) (available here) rebuffed defendants' claims that Florida's sex offender registration/notification scheme and DNA collection statute violated their constitutional rights to due process, equal protection, travel, separation of powers, and freedom from ex post facto legislation. Considered in conjunction with the recent 8th Circuit Doe v. Miller decision upholding sex offender residency restrictions (discussed here), it is becoming ever more clear that most lower federal courts are unlikely to find constitutional problems with state efforts to regulate the post-incarceration lives of sexual offenders.
On a related note, there was an interesting recent discussion over at PrawfsBlawg about this news that a group of Texas developers are planning a development that promises to be free from registered sex-offenders. Both Christine Hurt and Kaimi Wegner had thought-provoking posts on the topic.
June 7, 2005
Judge Presnell on fast-track disparity
With all the recent discussions of appellate decisions (Booker and otherwise), I have been hankering for some notable district court decisions, since the real Booker action takes place on a daily basis in the district courts. Today, the always notable Judge Gregory Presnell, who has already secured a place in my Sentencing Hall of Fame, was kind enough to scratch my district court itch through his decision in US v. Delgado, No. 05-cr-30 (M.D. Fla. June 7, 2005).
Delgado is a brief decision (which can be downloaded below) that first addresses a guideline calculation issue that Judge Presnell calls "the type of mechanistic application of arbitrary sentencing Guidelines which leads to inequitable and patently unreasonable results." But the most far-reaching aspect of Delgado, and the feature that will lead to a certain appeal to the Eleventh Circuit under DOJ's post-Booker appellate plans, is Judge Presnell's decision to address fast-track disparity:
Unfortunately (for Delgado), this district has no fast track program. If he had been arrested in Arizona, he would be eligible for a 4-level reduction. But, having made it to Florida to find work, he is subject to a much harsher sentence. Recognizing this disparity, two of my fellow judges have granted 4-level departures on this basis. United States v. Villalobos, 6:04-CR-206- Orl-28JGG (M.D. Fla. Apr. 18, 2005)(Antoon, J.) (oral sentencing judgment); United States v. Maldonado-Sanchez, 8:03-CR-371-T-30TGW (M.D. Fla. Jan. 30, 2004) (Moody, J.) (endorsed order). I see no reason to hold otherwise. Accordingly, the Court will exercise its discretion to reduce Delgado's sentence by the equivalent of a 4-level departure in recognition of this sentencing disparity.
The Constitution Project releases principles for sentencing reform
After nearly a year of post-Blakely work, The Constitution Project and its Sentencing Initiative's bipartisan, blue-ribbon committee has today, as detailed here, "released a set of guiding principles for reform of criminal sentencing systems in the United States." The principles, which run a merciful two pages and can be accessed at this link, were unveiled at a press conference hosted by the Heritage Foundation and featuring the committee's co-chairs, former Attorney General Edwin Meese III and former Deputy Attorney General Phillip Heymann. Notably, the statement of principles also includes a statement of "several serious deficiencies" in "the federal sentencing guidelines as applied prior to United States v. Booker."
A separate brief introduction to the principles, which can be accessed here, provides some background on the Sentencing Initiative and also this teaser of productions still in the works:
The Committee's primary objective was to seek consensus on some of the fundamental elements of a sentencing system that achieves both appropriate punishment and crime control. These "Principles for the Design and Reform of Sentencing Systems" are the first step in the Committee's work. The Committee plans also to release a background report on these principles, to be followed by specific recommendations for a post-Booker federal sentencing scheme.
The principles all look astute and sound to me, though I would contend that the Sentencing Reform Act that Congress passed in 1984 reflects all these principles. Indeed, I argued at length in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999), that the SRA is an astute and sound piece of legislation, but that federal sentencing went astray because Congress, the US Sentencing Commission and even federal judges did a poor job effectuating the SRA's core principles in their subsequent sentencing work.
In other words, the federal experience over the last two decades shows that the devil is really in the details. Though a statement of principles, especially from this impressive group, is powerful, I hope that future work from the Sentencing Initiative will provide a lot more specifics and especially address how the modern politics of sentencing (especially in the federal system) can be recast to enhance the chance that this broad principles will be effectuated over time as a sentencing system evolves.
A view that Ameline is not so sublime
Though I like the Ninth Circuit's Ameline case as a facilitator of rhyming post titles, Steven Kalar over at the Ninth Circuit Blog is not too keen on the substance of Ameline's approach to Booker plain error (basics here, commentary here). In this post, Steven complains about the Ninth Circuit's decision to adopt "the Second Circuit's economic, expedient, and arguably unconstitutional 'quick look' procedure for Booker pipeline cases."
In an interesting part of an interesting post, Steven urges defense attorneys to contest "any district court 'quick look' done outside of the presence of the defendant, based on a defendant's structural right to allocution." He notes that "[a]lthough the allocution issue was pressed aggressively at oral argument, the Ninth entirely avoids the issue entirely in its en banc decision." Steven says to look "for upcoming sample briefing and discussion of this challenge in the 9th Circuit blog and the ND Cal FPD web page in the upcoming weeks." (Notably, the ND Cal FPD website already has a number of sample Booker and Shepard memos and briefs, and a lot of other materials, available at this briefbank page.)
5th Circuit discusses Booker resentencings
On Monday, the Fifth Circuit had an opportunity in US v. Scroggins, No. 03-30481 (5th Cir. June 6, 2005) (available here) to discuss the nature of resentencings under Booker. Though the case has a complicated history and though the Fifth Circuit's opinion is somewhat opaque, Scroggins is notable for its discussion of a number of important Booker resentencing issues.
First, Scroggins rejects the defendant's contention that due process/ex post facto principles restrict application of the Booker remedy and thereby requires that resentencings be based only on Blakely-compliant facts. But then Scroggins also rejects the prosecution's contention that certain guideline enhancements that had been affirmed on appeal pre-Booker could not now be reconsidered by the district court. Here are selections from Scroggins's account of what should now transpire at resentencing:
The district court may, should it deem it appropriate, reconsider its determinations that Scroggins was a leader or organizer and/or obstructed justice, as well as its drug quantity determinations, and it shall evaluate the ultimate sentencing effect of any and all such determination under an advisory, non-mandatory, guidelines system....
We hold that, under the particular circumstances of this case, the district court may also, in its discretion, hear and consider evidence as to Scroggins's role in the offense under section 3B1.1 of the Guidelines and whether he obstructed justice under section 3C1.1 of the Guidelines. The court may also hear evidence bearing on whether or not — notwithstanding that the Guidelines (and pertinent Sentencing Commission policy statements) must be considered and taken into account — a non-guideline sentence would be more appropriate in light of the other factors and considerations set out in Justice Breyer's Booker opinion.
A quick sentencing perspective on a possible new Justice
With fitting fanfare from other bloggers here and here, the fine folks at SCOTUSblog now have gone public with The Supreme Court Nomination Blog. The SCOTUSNom blog aspires "to provide comprehensive, objective coverage of the Supreme Court nomination process." It is already a very impressive effort (and the real action hasn't even started). If (when?) there is a SCOTUS vacancy this summer, the legal blogsphere will likely reach a whole new buzz level, and I expect the SCOTUSNom blog will be at the center of all the action.
Whenever there is a SCOTUS vacancy, I will provide a sentencing perspective on all the new Justice talk. Indeed, I can start providing that perspective now. Recall that 5-4 votes produced the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule. Both Chief Justice Rehnquist and Justice O'Connor, the two Justices considered most likely to retire, are key votes supporting these limits on the reach of the Apprendi-Blakely rule. If (when?) President Bush were to nominate replacement Justices in the "Scalia-Thomas" mold, the future of Almendarez-Torres and Harris would seem to be even shakier.
Of course, Justices Scalia and Thomas did split their votes in both Almendarez-Torres and Harris, although Justice Thomas has now essentially recanted his vote in Almendarez-Torres and Justice Scalia has never explained his vote in Harris. So, even the votes of the current Justices on the big sentencing issues are subject to uncertainty and debate; I am sure the same will be true for any and every potential nominee. Should be a fun summer for Court fans.
The latest news on Blakely in Tennessee
Attorney David Raybin, who has been integrally involved in many Tennessee Blakely developments, sent me tonight the latest news on his state's Blakely drama. The big recent development is that on Tuesday, June 7, Tennessee's Governor is scheduled to sign "Blakely fix" legislation — even though, as detailed here and here, the Tennessee Supreme Court has reached the (seemingly erroneous) conclusion that the state's current sentencing laws are not broken.
As detailed more fully in David Raybin's report, which can be downloaded below, Tennessee's "Blakely fix" legislation serves to "Booker-ize" the state's sentencing scheme. That is, the legislation converts Tennessee's mandatory sentencing regulations into advisory guidelines that state judges must now consider, but are no longer required to follow. I believe Tennessee is the only state to date to adopt legislatively a Booker advisory guidelines approach to deal with Blakely issues, although other states like Alaska and Minnesota have in smaller ways provided judges with more sentencing discretion through Blakely fix legislation. (A now-slightly-dated review of the state of state Blakely fixes and high court rulings is available at this post.)
June 6, 2005
Raich commentary galore
The blogsphere is, unsurprisingly, buzzing with analysis and commentary on the Supreme Court's decision today in Raich (basics here). There is already a week's worth of interesting commentary from many heavy-hitters over at SCOTUSblog, and certainly The Volokh Conspiracy is living up to Orin's promise of lots of Raich-blogging.
Not to be overlooked, and of special interest for folks interested in sentencing topics, Mike over at Crime & Federalism has created this great mega-post of his early Raich analysis, which gives particular attention to the intersection of federalism and criminal justice concerns. Other posts on Raich at Crime & Federalism are also must-reads.
Since all these bright lights have Raich well-covered, I am disinclined to add further to the deluge of Raich words (though I must note with amusement's Justice Stevens' comical reference, late in the Court's opinion, to marijuana as an "extraordinarily popular substance"). But I am inclined to spotlight and link below some pre-Raich posts in which I have explored various federalism and sentencing intersections:
- Reasons for rooting for criminal justice federalism
- Criminal justice, constitutional law, federalism and hot button issues
- Apprendi, Blakely and federalism
- Blakely, federalism, retroactivity and pragmatism
Rehnquist's capital legacy
The Washington Post's Charles Lane, who last week gave us this interesting piece about the death penalty in Germany, today has this strong piece exploring the legacy of Chief Justice Rehnquist in the arena of capital punishment. Here's a sample:
[O]ne clear legacy of the Rehnquist court is its contribution to accelerating the pace of executions in the United States. The Rehnquist court, in tandem with Congress, took some key steps during the 1980s and 1990s to reduce time-consuming death row appeals. These appeals had generally taken the form of petitions in federal court for writs of habeas corpus, based on alleged constitutional defects in a particular defendant's trial.
Partly as a result, the number of executions in the United States reached a modern annual peak of 98 in 1999 — before declining to last year's total of 59.
8th Circuit is at it again
Reinforcing my observations here about the divergent pace of Booker appeals in different circuits, I see on this official opinion page that the ever-active Eighth Circuit has released another large bunch of sentencing rulings today. From a quick scan of the official summaries, I do not think much new ground is broken in this batch. But, because I have 70-plus pages of Raich to read, I am pretty sure I won't get through all of the Eighth Circuit's latest Booker wisdom, and I am also sure that I need readers' help to spot any important jurisprudential needles in the Booker haystacks that the Eighth Circuit is now producing on a daily basis.
A result in Raich and, of course, Booker GVRs
As always, SCOTUSblog is the go-to place for news and commentary on today's work by the Supreme Court, and How Appealing is the go-to place for links to media coverage. As detailed in this post by Lyle Denniston at SCOTUSblog, the biggest criminal justice news today is that the Court in Raich ruled 6-3 "that Congress had the authority to make it a crime to grow and use marijuana purely for personal medical purposes when recommended by a doctor [and thus] overturned a Ninth Circuit ruling that the federal Controlled Substances Act of 1970 exceeded Congress' Commerce Clause power when applied to medical marijuana used under California law." Justice Stevens wrote the opinion for the Court in Raich, and Justice Scalia concurred in the judgment and wrote an opinion. Justice O'Connor wrote the principal dissent, joined by the Chief Justice and Justice Thomas, and Justice Thomas also wrote a separate dissent.
And, of course, what would be a big day at SCOTUS without more Booker-inspired GVRs? I count a dozen more Booker GVRs on this order list, which I believe takes the total to somewhere around 750.
UPDATE: SCOTUSblog in this post has links to the four Raich opinions, and Orin Kerr is already promising lots of Raich commentary over at The Volokh Conspiracy. Mike at Crime & Federalism here notes that "Supreme Court experts had predicted a 9-0 or 8-1 victory for the government, so in a sense, this is a victory for enumerated powers advocates and social justice." Mike also makes the trenchant comment that "Justice Stevens and the other liberals on the Court have continually overlooked the fact that the federal criminal justice system falls disparately upon blacks."
BETTER UPDATE: In response to a very sensible comment, here is a link to the full Raich opinion (which, in case anyone is counting, clocks in at 79 total pages and thus is still 45 pages shorter than all the Booker opinions).
June 5, 2005
DOJ's post-Booker litigation policies and plans
I learned so much from my all-too-brief San Antonio trip to talk to federal defenders at the National Seminar for Federal Defenders, but perhaps of greatest moment was what I heard about the Justice Department's litigation policies and plans. The DOJ details recounted below all come from hearsay reports; but since hearsay is often good enough for federal prosecutors at sentencing, I think it is good enough for me to report on what federal prosecutors are now doing about sentencing.
First, concerning initial sentencings, I heard a report that line prosecutors have generally been instructed (formally? informally?) to seek only within-guideline sentences. (I also heard, however, that some prosecutors in some districts in some cases have requested above-guideline sentences.) Given that due process/ex post facto principles may place limits on increasing a post-Booker sentence based on pre-Booker conduct (background/links here), it seems wise for DOJ to generally urge within-guideline sentences for crimes committed before Booker. But I wonder if this approach will change when sentencings involved only post-Booker criminal conduct.
Second, concerning sentencing appeals, I heard that DOJ official Bill Mercer stated at the recent big Booker event in San Francisco (details here) that there were five types of sentencing decisions that would be appealed in every instance: (1) any sentence with a variance of straight probation; (2) any sentence with a variance based on crack/powder cocaine disparity; (3) any sentence with a variance based on fast-track disparity; (4) any sentence with a variance based on comparison to state sentencing laws; and (5) any sentence with a variance based on substantial assistance in the absence of a 5K letter. This appellate approach should produce some interesting (and, I would anticipate, somewhat disparate) circuit court rulings about the meaning of reasonableness.
It is quite possible these hearsay reports are a bit off, and I encourage anyone in the know to make any needed clarifications in the comments.
Doozy DC dicta on Booker
Friday was a big day in the circuits, and I have already discussed Booker developments in the Eighth and Ninth Circuits, a big Blakely ruling in the First Circuit, and a big Apprendi habeas ruling in the Second Circuit. But also making noise on Friday was the DC Circuit (which has been perhaps the quietest Booker circuit to date). And the noisiest part of US v. Price, No. 03-3088 (DC Cir. June 3, 2005) (available here) is some of the dicta from Judge Henderson in her partial concurrence.
In Price, the majority concluded that a sentencing reversal and remand was necessary because "the District Court committed error by: (1) denying Price's request for a third-level reduction for acceptance of responsibility when, under the plain language of the Guidelines, Price was entitled to such a reduction; and (2) including one of the two Maryland convictions in the calculation of Price's criminal history score, when Price clearly disputed that conviction and the Government did not sustain its burden of proof in establishing the conviction." These rulings and the Price court's account of Booker make for interesting reading.
But what makes Price really stand out are the comments from Judge Henderson in her partial concurrence about what can happen upon remand and about the nature of post-Booker sentencing. Here's a sample:
Under the new sentencing regime, and on this record, I believe it would be reasonable for the sentencing court on remand to decline to consider awarding Price any credit for accepting responsibility and to re-impose, if not increase, the sentence vacated herein.... Given that Price’s public criminal record reveals a man determined to burnish his criminal credentials and at society's expense — two factors appropriate for consideration on resentencing, see 18 U.S.C. § 3553(a)(1) & (2)(C) — I believe the sentencing court could reasonably decline to lessen his punishment in any way, including by considering his alleged acceptance of responsibility....
As to the two Maryland convictions, I do not agree that, on remand, the government must "meet its burden under [our pre-Booker precedents].... The reason such pin-point accuracy was necessary, however, was that the prior conviction had to constitute a "crime of violence" in order to be used in computing the defendant's offense level. But "offense levels," "adjustments," "departures" and all of the other Guidelines argot has been jettisoned by Booker. We now operate in a "back to the future" sentencing world when, pre-Guidelines, all that our Circuit required of the government in this regard was that it submit "some verification," — that is, any "evidence of a sufficiently reliable caliber" — to support the information that it supplied the sentencing court and that the defendant challenged.
Interesting blogsphere sentencing items
I see a number interesting sentencing-related items on other blogs that merit note:
- TalkLeft spotlights here the push in North Carolina to reform the administration of the death penalty in that state.
- How Appealing here has links to articles discussing the recent release from confinement of Leroy Hendricks, who was at the center of the Supreme Court's 1997 ruling Kansas v. Hendricks about involuntary commitment for sex offenders.
- Orin Kerr at the at The Volokh Conspiracy here makes some interesting points about an interesting Washington Post piece about the death penalty in Germany.