June 13, 2005
Notable sentencing decision from the 6th Circuit
The Sixth Circuit got the federal sentencing week off to a running start with three notable decisions this morning: a published decision in US v. Sawyers, No. 02-5835 (6th Cir. June 13, 2005) (available here), an unpublished decision in US v. Tate, No. 03-3498 (6th Cir. June 10, 2005) (now available here), and the decision to "publish" the previously unpublished US v. Hall, No. 04-5047 (6th Cir. May 6, 2005) (available here).
Sawyers involves, inter alia, determination of criminal history and the application of the Armed Career Criminal Act, and Tate involves, inter alia, loss and restitution determinations. Both cases result in remands for resentencing, covering a lot of ground along the way without apparently breaking too much new ground.
Hall is now getting published presumably because, though it involves a fairly rote Booker remand, it breaks ground in rejecting the defendant's argument "that the prosecution violated her Sixth Amendment rights because the jury imposed a criminal forfeiture against her on the basis of the preponderance-of-the-evidence standard rather than the beyond-a-reasonable-doubt standard." I previously discussed this part of the Hall ruling in this post last month, where I highlighted the court's assertion that 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."
Upon re-reading, I think the logic supporting the forfeiture ruling in Hall is quite debatable in the light of the Supreme Court's broad dicta in Blakely concerning proof of facts "legally essential to the punishment." But, then again, I suppose every bit of sentencing logic is debatable in the wake of Blakely and then Booker.
More than a few noteworthy SCOTUS criminal justice rulings
Of course, SCOTUSblog and How Appealing are the places to go to get the scoop on today's work by the Supreme Court. As detailed in this early post by Lyle Denniston at SCOTUSblog, the High Court issued some noteworthy criminal justice decisions today: (1) in Miller-El v. Dretke, a Texas death row case involving peremptory challenges, through "a 6-3 ruling written by Justice David H. Souter, the Court rejected Texas' claims that the strikes were not done to discriminate against [black] jurors," and (2) in Wilkinson v. Austin, "the Court unanimously refused to impose stricter procedural limits on decisions by state officials to place a prisoner in a 'super-maximum security' prison."
UPDATE: In a busy day continuing a busy SCOTUS month, the Court also issued opinions in the capital case of Bradshaw v. Stumpf and in Johnson v. California, another case involving preemptory challenges.
And, of course, a big day at the Supreme Court would not be complete without at least a few more Booker-inspired GVRs. This morning I count a six such GVRs on this order list.
Of all the decisions handed down today, I am most intrigued (though not really surprised) by Austin. I hope in a post later today to be able to report on any especially noteworthy aspects of any of these criminal justice decisions. Readers are encouraged to do the same in the comments.
More insights on the recent Bush pardons
Margaret Colgate Love, who served for twenty years in the US Department of Justice, including seven as US Pardon Attorney under the first President Bush and President Clinton, wrote to me following up on this recent post about President Bush's pardons last week. Here are her informed insights:
The most recent pardon grants from President Bush have been criticized, on this blog and elsewhere, as random and meaningless. But the very fact that this President has begun issuing pardons on a fairly regular basis is encouraging. In the past six months he has issued a pardon warrant on four separate occasions, which in terms of frequency begins to resemble the regular pardoning practices of modern presidents prior to the Reagan Administration. The 44 pardons and two commutations he has issued to date put him not too far off President Clinton's pace at the halfway-point in his tenure (53 pardons and 3 commutations by the end of 1997).
On the other hand, the number of grants on each warrant (usually between four and seven) is comparatively small, oddly so considering the number of pardon applications that are awaiting action (now over 900). And, most of President Bush's pardons to date have gone to people whose offenses were very minor (few resulted in any prison time) and dated (most took place more than 15 years ago). Only one involves a drug conviction.
Perhaps most significant for your audience, there is no indication that this president plans to use his pardon power in any systematic fashion to cut short prison sentences: the beneficiaries of his only two commutations were both old and sick and within six months of release in the ordinary course. His only grant that could even remotely be regarded as controversial was the death-bed pardon in February of 2004 to David McCall, a well-connected Texas politician who was convicted of bank fraud in 1997.
The general impression conveyed is of an executive who is beginning to understand the importance of regularity in the pardon process, but is still playing it safe in every respect.
The sluggish pace of Bush's grants has evidently not deterred pardon applicants: the most recent statistics issued by the Pardon Attorney's office show that the number of pardon applications has increased each year since President Bush took office, and may top 300 this year. This is not surprising since pardon is the only way that federal offenders can avoid or mitigate many collateral penalties and disqualifications. On the other hand, the number of commutation applications has stayed fairly steady at between 850 and 1000 each year, and there is as yet no indication that there will be a significant number of commutation applications from prisoners seeking retroactive application, through the pardon power, of the Booker holding.
June 12, 2005
Blakely/Booker case cites top 5000
With still two weeks until Blakely celebrates its one-year anniversary, a search this morning of "(Blakely or Booker) & sentenc!" after June 24, 2004 in Westlaw's allcases database produces 5036 "hits" (with a breakdown of 2156 in allstates, 2880 in allfeds). The same search in Lexis, for either the last year or the last six months, gets interrupted "because it will return more than 3000 results." The search in Lexis for the last month produces 850 hits, suggesting that we may see on-line over 10,000 cases citing Blakely or Booker in 2005.
Especially given that these numbers do not reflect the tens of thousands of sentencings that Blakely or Booker have impacted which do not result in an on-line opinion, I view this data as providing some support for my hyperbolic claim in this Slate piece last year that "Blakely is the biggest criminal justice decision not just of [the 2003 SCOTUS] term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court." Indeed, as we approach Blakely's one-year anniversary, I encourage readers to suggest in comments other ways to take stock and assess the Blakely year that was.
Sunday morning sentencing blog reading
Once you have your morning cup of jo', be sure to check of these interesting sentencing items from around the blogsphere:
- Grits for Breakfast has this post which details that the "Texas Legislature's rejection of most prison-sentence-increase bills this session staved off $1 billion in new prison spending by the end of the decade.
- The PRACDL Blog has this extended post discussing the First Circuit's recent Wilkerson decision which, as detailed here, seems to endorse post-Booker consideration of disparities between state and federal sentencing schemes.
- The Ninth Circuit Blog has this detailed post providing a "BOP Litigation Update" that begins by stating that a "chronic frustration in federal criminal defense is the Bureau of Prisons's tendency to increase the length of sentences after the prison door clangs shut."