July 16, 2005
More great sentencing reading, especially for SCOTUS watchers
I am, slowly but surely, working through all the amazing sentencing article in this great Columbia Law Review issue. But, especially with a Supreme Court vacancy garnering everyone's attention, I want to spotlight another interesting sentencing piece that is on my night-table.
Professor Richard Myers, in a piece entitled Restoring the Peers in the "Bulwark": Blakely V. Washington and the Court's Jury Project, 83 North Carolina Law Review 1383 (June 2005), explores the reasons why a seemingly unusual coalition of Justices came together to champion jury trial rights in Apprendi and Blakely and Booker. Here is a snippet from the introduction:
The opinions in these cases reveal that the so-called "centrist" Justices on the current Court have difficulty identifying the right to jury trial — at least as defined by the Blakely majority — as a mainstream value. The unconventional lineup in the Blakely/Booker line of cases confounds the conventional wisdom, as well as the social scientists' models.... These cases, which together have fundamentally altered state and federal structured sentencing guidelines systems, suggest that for some reason, the "centre cannot hold."
The Court's holding in Blakely extends a line of recent cases exploring the meaning of the right to a jury trial and establishes a readily understood principle for deciding what the right means and when it is being eroded. The Blakely line of cases shows that the jury stands at a constitutional crossroads where substantive and structural issues overlap. The jury right implicates substantive concerns critical to the left, such as innocence, appropriate levels of punishment, and proportionality, as well as structural concerns critical to judicial conservatives, such as separation of powers and democratic theory principles. This position ensures that the right to a jury trial will endure as a core constitutional value.
The insights developed by Professor Myers reinforce some points I have made here and here and here that a new Justice replacing the "centrist" Justice O'Connor could have an interesting and perhaps unexpected impact on the Supreme Court's still developing sentencing jurisprudence.
In the interest of full disclosure (and also self-promotion), I should note that another passage in Professor Myers' article also garnered my attention. In the course of noting the academic contributions to the on-going debate over sentencing reform, Professor Myers kindly notes:
Professor Doug Berman's weblog, Sentencing Law and Policy has become the informational locus of the debate, with multiple courts citing it in opinions, and serious scholars of sentencing policy checking it almost daily. Opinions and other source materials appear there within hours, rendering it the equivalent of a real-time treatise that the participants consult as they shape the debate.
More white-collar commentary
As noted previously, the White Collar Crim Prof Blog here collected links to an initial round of media coverage and commentary on the 25-year sentence given yesterday to Bernie Ebbers and the sentencing of other white-collar offenders. Another round of such commentary is now out, and here's a sampling:
- Corporate Crime Sentences Start to Pay Off from the AP
- How Ebbers Lucked Out With a 25-Year Sentence from Bloomberg
- The Face of Greed from the Journal News
- CEOs Earned Harsh Sentences from the St. Petersburg Times
July 15, 2005
More updated post-Booker data from the USSC
Today the US Sentencing Commission has now finally made publically available on this Booker page a "Post-Booker Sentencing Update" with the USSC's latest, greatest sentencing statistics. (This new data, available here, is a little different and seems more copious than the materials I received and posted here yesterday.) The USSC describes this latest offering as an "extensive set of tables and charts presenting data on post-Booker cases received, coded, and edited as part of the Commission's post-Booker project," and the USSC notes that numbers "are prepared using data extracted at close-of-business on June 6, 2005."
I plan to savor this data throughout the weekend (especially since Tiger is threatening to make The Open a runaway), and I will post commentary soon on any numbers that really jump out. Readers are encouraged to do the same via comments.
An early week in review
I will be spending much of the workday Friday on the road going to and from a federal law seminar sponsored by the US Attorney's Office for the Southern District of Ohio. (I will be speaking about ... one guess ... Booker!) I expect a lot of federal prosecutors in the crowd, and I always learn a lot from the folks actually working on the ground with the system Booker has created. While I am away, the links below can enable catching up on another exciting sentencing week.
SCOTUS DEVELOPMENTS AND COMMENTARY
CONGRESSIONAL DEVELOPMENTS AND COMMENTARY
- What should be done about Sensenbrenner's letter?
- A plain error irony in Sensenbrenner's letters
- More buzz about Sensenbrenner letters
- More criticisms of Sensenbrenner's "oversight"
- Senate hearings on new habeas restrictions
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
CIRCUIT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- Eighth Circuit finds huge sentence increase reasonable
- Another round on Levy from the 11th Circuit
- More than a sperm whale's worth of relevant conduct
- A plug for drug courts in 8th Circuit's Booker mania
STATE SENTENCING DEVELOPMENTS AND COMMENTARY
- Oregon's Blakely fix now law
- More on recent Oregon sentencing legislation
- State capital punishment developments and debates
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Happy Booker half-birthday!
- All about Apprendi
- FSR issue on Booker heading to press
- Booker and other fine coverage in the Harvard Law Bulletin
- Interesting 4th Circuit ruling on right to counsel
More criticisms of Sensenbrenner's "oversight"
In recent days, there has been still more criticism of the remarkable letters that House Judiciary Chairman James Sensenbrenner wrote to the Chief Judge of the Seventh Circuit and to AG Alberto Gonzales concerning the decision in US v. Rivera (background here, commentary here and here).
As detailed in this Chicago Tribune article, the American Judicature Society on Thursday condemned Sensenbrenner's actions. Here is a press release from AJS, which has a lot of harsh word for Sensenbrenner as it assails "his arrogance in purporting to speak for the American people when attempting to bully federal judges." The Chair of the AJS Task Force on Judicial Independence and Accountability asserts "what the American people have most to fear is congressional activism threatening the independence of the judiciary under a spurious banner of accountability."
In a similar vein, this editorial from the Montgomery Advertiser entitled "Separation of powers should be respected" states that "[t]o see the chairman of the House Judiciary Committee make a written demand for changes in a federal court decision is truly disturbing." This editorial, and a prior one noted here, show that some smaller newspapers are already speaking out on this issue; I wonder if we will see some bigger papers follw suit.
July 14, 2005
More on recent Oregon sentencing legislation
Oregon Circuit Court Judge Michael Marcus, who operates this interesting site called Smart Sentencing, recently highlighted on a listserve a number of new Oregon sentencing laws. He permitted me to reprint his summaries (which enhance my coverage in this prior post on Oregon's Blakely fix), along with some explanatory commentary:
- SB 528 (available here) adopted a variation of the Kansas approach to post-Blakely enhanced sentencing, affording jury trial rights and bifurcation of offense- and offender- related sentencing issues (the former tried with guilt), dealing with cases on remand, and applying to dangerous offender as well as upward departure enhancement contexts. The statute is written broadly enough to encompass consecutive sentencing (Oregon's statute is in part particularly susceptible to a Blakely argument) and any other situation in which the constitution requires a jury trial right for a sentencing related fact. [We're working on appropriately revised jury trial waiver forms and guilty plea petitions, if anyone is interested]
- SB 914 (available here) extends state-wide an innovation in orders for pre-sentence investigations that our county initiated two years ago: such PSIs must now "provide an analysis of what disposition is most likely to reduce the offender's criminal conduct, explain why that disposition would have that effect and provide an assessment of the availability to the offender of any relevant programs or treatment in or out of custody"
- SB 919 (available here) requires our sentencing commission [the Oregon Criminal Justice Commission] to "conduct a study to determine whether it is possible to incorporate consideration of reducing criminal conduct and the crime rate into the commission's sentencing guidelines and, if it is possible, the means of doing so."
My view of the best (but remote) hope for the impact of Blakely is that it will give us an opportunity to re-examine the value and direction of the guidelines movement. I see the movement as essentially a well-intended but partially misdirected attempt by those who once supported the medical model of sentencing to recover from the realization later in the 20th century that rehabilitation goals are not achieved merely by proclaiming them (1962 Model Penal Code). Instead of accepting the challenge of outcome shortfalls, this movement retreated to less significant goals: normalizing sentencing and pretending that blue-ribbon sentencing commissions would actually moderate what it viewed as "punitivism" and the "mass incarceration" trend. The result is guidelines that have nothing intentionally to do with crime reduction (Virginia's are the only exception). The latter two bills represent an attempt to meet the challenge of empty promise with rigorous pursuit of responsible crime reduction.
For more on Judge Marcus's view of the post-Blakely, post-Booker world, check out his article entitled Blakely, Booker, and the Future of Sentencing to be soon appearing in this forthcoming issue of the Federal Sentencing Reporter.
Updated post-Booker data from the USSC
As discussed in this post, I have been expecting a release of updated post-Booker data from the US Sentencing Commission this week, in conjunction with the National Sentencing Policy Institute that the USSC and FJC conducted for judges on Monday and Tuesday in Washington DC (background here). Though the data does not yet appear on the USSC's website, one of my terrific sources was able to secure a copy of some data that the USSC presented at the sentencing institute. Thanks to my source (which, if you are wondering, is not Karl Rove), I can provide a pdf with this data for downloading below.
The cumulative data on post-Booker sentences within the guidelines is not all that new (it shows that over 60% of sentences are still within guidelines), but the USSC has also produced new types of data that are quite interesting. Specifically, the new data runs include some circuit-by-circuit information and data on average sentence lengths, pre- and post-Booker. Notably, the sentence length data show that the average length of sentences has remained stable after Booker, which seems to contradict AG Gonzales' recent claims that we are seeing a drift to lower sentences.
When I have more time to chew on all these data, I will have some more commentary on what it all might mean.
Sentencing around the blogsphere
A quick mid-afternoon tour of blogs has led me to a number of items that merit linking:
- White Collar Crim Prof Blog here collects a lot of links to media coverage and commentary on the 25-year sentence given yesterday to Bernie Ebbers and the sentencing of other white-collar offenders.
- The Sixth Circuit Blog has a series of posts on recent Booker cases from the Sixth Circuit, including this post on an unpublished case which holds that failure to object to PSR facts constitutes Booker "admission."
- The Seventh Circuit Blog also has some new sentencing posts, including this post on a noteworthy case from the Seventh Circuit earlier this week which the court held that Crawford had no application at sentencing and had some interesting ex post facto dicta.
- TalkLeft here has the news on the death sentence handed out in a federal case today in Vermont.
Eighth Circuit finds huge sentence increase reasonable
The Eighth Circuit, following up yesterday's record day with nearly 15 sentencing rulings, has another large batch of sentencing opinions today on this official opinion page. And the court's decision in US v. Shannon, No. 04-2895 (8th Cir. July 14, 2005) (available here), jumped out from the bunch because the court concludes that a sentence of 58 months, when the applicable guideline range was 6-12 months, was not unreasonable.
Shannon involves a false statement charge and a defendant with a criminal history that the sentencing judge described as "abominable," and "some of the worst that I’ve seen since I have been on the bench." On that basis, the sentencing judge (who was sentencing post-Blakely and treating the guidelines as advisory while awaiting a ruling in Booker) increased the defendant's offense level from a sentencing range of 6-12 months to a range of 51-63 months in order to impose the sentence of 58 months' imprisonment.
The Eighth Circuit concludes in Shannon that both the procedures and substance employed by the district court were sound post-Booker. Here's a selection from the opinion:
The court considered several other factors that are appropriately weighed in arriving at an upward departure under USSG § 4A1.3.... The decision to depart upward was thus supported by several aggravating circumstances, and the totality of the circumstances leads us to conclude that there was no abuse of discretion in either the conclusion that departure was warranted or the extent of the departure.
We also conclude that the sentence imposed was reasonable with regard to § 3553(a). In light of our conclusion that the upward departure from the guidelines was permissible, the sentence imposed was consistent with the now-advisory guidelines, and this is generally indicative of reasonableness. See 18 U.S.C. § 3553(a)(4), (5). Even assuming the departure was excessive, however, the district court made clear that it would have imposed the same sentence even without regard to the sentencing guidelines, so any error in the guideline computation would not require a remand as long the sentence is reasonable with regard to § 3553(a). See Mashek, 406 F.3d at 1017. Under Booker, as noted, the court has authority to tailor the sentence in light of statutory concerns other than the sentencing guidelines. 125 S. Ct. at 757.
For reasons similar to those discussed in connection with the upward departure, we believe that the sentence of 58 months' imprisonment is reasonable with regard to § 3553(a). The statute directs the sentencing court to consider, among other things, "the history and characteristics of the defendant," as well as the need for the sentence "to promote respect for the law," "to provide just punishment for the offense," "to afford adequate deterrence to criminal conduct," and "to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a)(1), (2). The district court plainly believed that in view of Shannon's extensive criminal history and incorrigibility, a firm sentence was necessary to further these objectives. We believe this conclusion was not unreasonable.
State capital punishment developments and debates
As detailed in recent posts here and here, the Judiciary Committees of both houses of Congress are debating new habeas restrictions, which would be of greatest consequence for state death penalty cases. Meanwhile, whether and how to have the death penalty is the subject of recent debates in a number of state legislatures.
From Massachusetts, as detailed in this story, the state legislature today is scheduled to debate the death penalty bill that Governor Mitt Romney "proposed in April that would bring back the death penalty [which he] promised [could] create a foolproof system that would be 'model for the nation.'" Background on Romney's bill can be found in a post here and in commentary here and here.
From North Carolina, as detailed in this story, a bill had been proposed in the NC House for a two-year study and moratorium on the death penalty across the state, but "an amendment passed Tuesday in the House Judiciary Committee drastically changed the legislation, removing the two-year halt on executions." Interestingly, that amendment "allows for those sentenced to death to apply for postponement for the duration of the study [but to] qualify for a postponement, convicts on death row must display some credible evidence that pertains to the study."
July 13, 2005
Senate hearings on new habeas restrictions
Thanks to Howard at How Appealing, I see that NPR today provided this effective coverage of a hearing by before the Senate Judiciary Committee concerning legislation introduced by Arizona Senator Jon Kyl seeking to restrict habeas corpus appeals. Senator Kyl's bill, S. 1088, is entitled the "Streamlined Procedures Act of 2005" and it can be accessed here. As discussed in this post, a similar bill to restrict habeas corpus has been introduced in the House. This press statement from Senator Kyl's office asserts that his bill seeks to "update AEDPA" and is "designed to reduce the backlog of federal court appeals in major criminal cases."
Today's hearing was entitled "Habeas Corpus Proceedings and Issues of Actual Innocence," and the impressive list of witnesses (with links to their testimony) is available at this link. Additional coverage of the hearings can be found in this news account, which spotlights that opponents of the bill "told the Senate Judiciary Committee Wednesday that it fails to adequately guarantee a hearing for individuals with evidence of actual innocence."
The timing of the Senate hearing and of these new habeas bills seems ironic on two counts: (1) as detailed in this SCOTUSblog post by Lyle Denniston, the Ninth Circuit is now actively questioning in Irons v. Carey (docket no. 05-15275) the constitutionality of AEDPA, which was passed by Congress in 1996 seeking to restrict federal courts' authority in habeas cases; (2) as detailed in this DPIC update, just earlier this week the NAACP Legal Defense and Educational Fund uncovered evidence that Larry Griffin may have been innocent of the crime for which he was executed by the state of Missouri on June 21, 1995.
Editorial assailing Sensenbrenner's meddling
The editorial pages have started to discuss the remarkable letters that House Judiciary Chairman James Sensenbrenner wrote to the Chief Judge of the Seventh Circuit and to AG Alberto Gonzales concerning the decision in US v. Rivera (background here, commentary here and here). Here's a selection from this editorial coming from the Freeport (Ill.) Journal Standard:
The issue: Sensenbrenner's mucking around in the courts
Our view: Congress should not be trying to intimidate the judiciary.
The Chicago Tribune exclusive [about Sensenbrenner's letters] on the paper's front page last Sunday was chilling, and spoke to the current threat posed to our Constitutional guarantee of the separation of powers.... It's as if a politician like Sensenbrenner assumes he knows better than, well, just about everyone.
Imagine if a legislator wrote the court seeking a lighter sentence for the drug courier? He'd be hung from the highest tree for interfering with the due process of law and justice.
Sensenbrenner's war against the judicial branch is well-documented and wrong-headed.... Sensenbrenner and his allies in Congress are out to intimidate the judiciary into doing their bidding. Sounds like a different and dangerous kind of judicial activism to us.
FSR issue on Booker heading to press
I have finally put the finishing touches on the Federal Sentencing Reporter's latest issue, which is entitled "The Booker Aftershock." The title a mini-homage to FSR's first (of many) Blakely issues, which carried the titled "The Blakely Earthquake." (Details about FSR's three recent Blakely issues are here and here and here, and the journal can be ordered here and accessed electronically here.) The pretty cover to this latest FSR issue can be downloaded below, and here are the contents:
- Douglas A. Berman, Perspectives and Principles for the Post-Booker World
- Kim Hunt & Michael Connelly, Advisory Guidelines in the Post-Blakely Era
- Michael Marcus, Blakely, Booker, and the Future of Sentencing
- Michael O'Hear, The Myth of Uniformity
- Stephanos Bibas, The Blakely Earthquake Exposes the Procedure/Substance Fault Line
- James Felman, The Need for Procedural Reform in Federal Criminal Cases
- Phillip Zane, Booker Unbound: How the New Sixth Amendment Jurisprudence Affects Deterring and Punishing Major Financial Crimes and What to Do About It
- U.S. Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform (Nov. 2004)
- U.S. Sentencing Commission, Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court's Decision in Blakely v. Washington (Dec. 2004)
- Memorandum to Federal Prosecutors from U.S. Department of Justice, Office of the Deputy Attorney General (Jan. 28, 2005)
- Jon Wool, Beyond Blakely: Implications of the Booker Decision for State Sentencing Systems (March 2005)
I believe this latest FSR issue will be available electronically with a week or so. And, not long thereafter, another FSR Booker issue — this one asking "Is a Booker fix Needed?" — should be heading to press.
Bernie Ebbers gets 25 years
Further proof that bloggers are not great prognosticators comes from this news that former WorldCom CEO Bernard Ebbers today received a sentence of 25 years' imprisonment for his fraud offenses. In this post, I had predicted 12 years and Peter Henning at the White Collar Crime Prof Blog had predicted the sentence "will be in the 8-10 year range."
Over at the White Collar Crime Prof Blog, Ellen Podgor already has a terrific set of reactions to the Ebbers outcome in this post, which concludes: "this sentence represents a new trend in this country — a trend that fails to follow long studied sentencing theory of deterrence and rehabilitation. It is good to see a crackdown on white collar crime, but folks lets be rational in how it is done."
UPDATE: At TalkLeft, this post about the Ebbers' outcome is generating interesting comments. Also, at the White Collar Crime Prof Blog, Ellen Podgor has added some comments to this post about the sentencing significance of charitable work (an issue nicely covered in this USA Today article).
Oregon's Blakely fix now law
As detailed in this article, in Oregon "Gov. Ted Kulongoski signed Senate Bill 528 last week, [in order to remedy] a flaw that the U.S. Supreme Court found last year in the criminal-sentencing guidelines of Oregon, several other states and the federal government." Background on this state legislative Blakely fix can be found in this prior post; the full text of the new law is available here. And this news, of course, only further contributes to my state of state Blakely excitement.
A plug for drug courts in 8th Circuit's Booker mania
As noted in this post last week, I have long given up on keeping up with all the action in Eighth Circuit, which now seems to hand down at least a half-dozen sentencing decisions each day. Today, with nearly 15 rulings on this official opinion page, the Eighth Circuit may have set a new one-day record.
Though I continue to rely on readers to help me identify any major jurisprudential needles hidden in the Eighth Circuit Booker haystacks, an interesting concurrence from today's dispositions caught my eye. In US v. Baccam, No. 03-2133 (8th Cir. July 13, 2005) (available here), an otherwise ordinary drug case gets a little twist when Judge Donald Lay added this concurrence to make a pitch for drug courts:
I concur in the judgment of the court. I write separately to highlight the limited efficacy of an inflexible federal criminal justice policy that responds to the epidemic of drug crimes without adequately addressing the root cause of this epidemic — drug addiction. Many states have created specialized drug courts that approach this epidemic with much greater success. In most drug courts, nonviolent, substance-abusing offenders charged with drug-related crimes are channeled into judicially supervised substance abuse treatment, mandatory drugs testing, and other rehabilitative services in an effort to reduce recidivism. Eligible offenders typically have the charges against them stayed and dropped if treatment is successful, or plead guilty with prosecution deferred and criminal punishment withheld if treatment is successful. Evidence shows that the flexible and pro-active approach of drug courts reduces recidivism rates to less than half of the recidivism rate of those offenders who are simply imprisoned for their drug crimes. Unfortunately, the federal criminal justice system offers no such alternatives for nonviolent, substance-abusing offenders. Given the tremendous economic and human costs of imprisoning nonviolent drug offenders, Congress should seriously consider creating federal drug courts. Federal drug courts would save a significant amount of money for taxpayers.
As detailed in this post, Judge Lay has previously called for the development of a federal drug courts program on the op-ed pages of the New York Times. Now his insights will also appear in the august pages of F.3d.
More buzz about Sensenbrenner letters
The remarkable letters that House Judiciary Chairman James Sensenbrenner wrote to the Chief Judge of the Seventh Circuit and to AG Alberto Gonzales concerning the decision in US v. Rivera continue to garner attention in the media and in the blogsphere. The media brings us this article from the Milwaukee Journal Sentinel, which details that Sensenbrenner "has come under fire for second-guessing a federal appeals court." And the blogsphere brings us this interesting post by Ron Wright at Prawfsblawg, which spotlights a "conflict of views about judges-as-agents versus judges-as-value-adders at sentencing."
For more background and commentary on the Sensenbrenner letters, see:
- Sentencing from the halls of Congress
- What should be done about Sensenbrenner's letter?
- A plain error irony in Sensenbrenner's letters
Gearing up for Ebbers' sentencing
Former WorldCom CEO Bernard Ebbers, after losing his bid for a new trial on Tuesday, is due to be sentenced on Wednesday by US District Court Judge Barbara Jones in Manhattan. Valuably, the run-up to the Ebbers' sentencing has produced some interesting press coverage of sentencing issues.
As previously detailed in this post, CNN has this interesting article discussing the evolution of federal sentencing outcomes in high-profile white-collar cases. And now I see this interesting article from USA Today, which discusses examples of high-profile defendants arguing, often unsuccessfully, that their charitable activities should justify a reduced sentence.
The posts linked below provide some more background on the Ebbers' sentencing proceeding and on post-Booker white-collar sentencing more broadly:
- Ebbers' plea for leniency
- Big white collar developments
- A pattern of white-collar leniency?
- Are the federal guidelines too tough on white-collar offenders?
Since predictions are so much fun, I will note that Peter Henning at the White Collar Crime Prof Blog has predicted in this post that Ebbers' sentence "will be in the 8-10 year range." That seems a hint low: I am expecting a sentence closer to the neighborhood of 12 years. Other predictions?
Booker and other fine coverage in the Harvard Law Bulletin
I just received in the mail the summer issue of the Harvard Law Bulletin, and I was quite pleased to see my law school alumni magazine devoting an entire special issue to crime and punishment. I was also pleased to see the fine job the Bulletin did covering Booker in this article entitled "Aftermath: The federal sentencing guidelines are dead. Long live the guidelines." Astute readers will note that both the Bulletin's article title, and the article's closing lines, sample (with my permission) from this blog post, and the article also quotes some of my favorite lines from this other post ("The revenge of Breyer?").
The entire crime-and-punishment special issue of the Bulletin — which includes articles on wrongful convictions, the war on drugs, the new leader of DHS, and the Rwanda genocide — merits a close read. I found the Booker article especially engaging in part because of some interesting quotes from HLS Professors Carol Steiker and William Stuntz. Of particular note, Bill Stuntz asserts that "Booker gets us to a good result. It may lead us as close to an ideal system as we may ever get — rules moderated by mercy."
That quote especially caught my eye because, as discussed here and here, last Fall I participated in a Harvard Law School panel during which Bill Stuntz was critical of the Blakely decision. As the panel compared Blakely to other big constitutional rulings, Stuntz suggested that Blakely might be remembered more like Lochner than like Brown. Given his positive review of Booker, apparently Stuntz has now concluded that yet another switch in time (i.e., Justice Ginsburg's defection to join Justice Breyer's remedial opinion in Booker) has saved nine.
July 12, 2005
A plain error irony in Sensenbrenner's letters
Thanks to the folks at NACDL, you can now find at this link the remarkable letters that House Judiciary Chairman James Sensenbrenner wrote to the Chief Judge of the Seventh Circuit and to AG Alberto Gonzales concerning the decision in US v. Rivera, No. 02-3238 (7th Cir. June 16, 2005), amended (June 28, 2005) (background here). My first reaction to the letters, which are dense with legal cites and read like a petition for rehearing, is amazement that Sensenbrenner and his staff apparently concluded that a case involving a low-level drug dealer getting a sentence of 8+ years instead of at least 10 years is of such importance that it justified expending great time and energy writing these aggressive (and ethically suspect?) missives.
But putting aside Sensenbrenner's questionable priorities, I was especially struck by a statutory argument developed in the letters which suggests that every circuit applying a tough Booker plain error standard is violating the Sentencing Reform Act (SRA). Citing 18 USC 3742(f)(1) (available here), the Sensenbrenner letters contend that the SRA provides that a circuit court, whenever it finds that a sentence "was imposed in violation of law," has a statutory obligation to remand for the imposition of a lawful sentence "whether or not that question was presented to the court of appeals by either direct or cross appeal or whether or not it was raised by either party." Sensenbrenner Letter to CJ Flaum at p. 2. "Rather," continues the letter, "the statute mandates a remand upon a determination by the court that 'the sentence was imposed in violation of the law.'" Id. (emphasis in original).
As detailed in these comments, there is actually an interesting debate whether the sentence in Rivera "was imposed in violation of law." But not really subject to debate is the fact that every single pre-Booker sentence imposed pursuant to mandatory guidelines "was imposed in violation of law." Ergo, if Sensenbrenner's reading of the SRA is correct, it would seem that the SRA calls for every single pre-Booker sentence to be remanded for the imposition of a lawful sentence "whether or not that question was presented to the court of appeals by either direct or cross appeal or whether or not it was raised by either party." Or put another way, Sensenbrenner's letters suggest that circuit courts refusing to remand on plain error grounds are violating the appellate review provisions of the SRA.
UPDATE: In addition, I think Sensenbrenner's letters support my arguments, detailed here and here, that appeal waivers are against public policy as violative of the appellate review provisions of the SRA. If the statute mandates resentencing to correct unlawful sentences regardless of the parties' wishes or arguments, why should prosecutors and defendants through appeal waivers be allowed to completely opt-out of appellate review through appeal waivers (and why should appellate courts honor and enforce these waivers)?
Happy Booker half-birthday!
Though not quite as exciting as celebrating Blakely's birthday, I cannot help but note that today marks the six-month anniversary of the Supreme Court's decision in Booker making the federal guidelines advisory. As I noted yesterday in this post, I am hoping the US Sentencing Commission, which today should be wrapping up the National Sentencing Policy Institute in Washington DC, might honor the day by releasing updated post-Booker data on this page.
One way Booker fans awaiting new data might celebrate Booker's half-birthday is by looking back at some of the initial Booker commentaries linked in this post — along with the hundreds of comments from readers (which were often substantial, always insightful, and sometimes truly brilliant) — that raised important questions about the meaning of the decision right after Booker was handed down. It is amazing, and perhaps depressing but not really surprising, that very few (none?) of the big questions Booker raises have been effectively resolved six months later.
What should be done about Sensenbrenner's letter?
Thanks to Howard at How Appealing, I see this interesting item from The Hill reporting that "Democrats yesterday were considering a response to a news report that House Judiciary Chairman James Sensenbrenner (R-Wis.) chastised the 7th U.S. Circuit Court of Appeals in Chicago for giving a drug courier what he considered to be a light sentence." The background on Sensenbrenner's actions and his startling five-page missive to the Chief Judge of the Seventh Circuit are detailed in this fascinating front page article from Sunday's Chicago Tribune, which I discussed in this post.
The Hill story indicates that an "approach Democrats were considering was to ask the ethics committee ... to review the letter." Interestingly, a commentor here asks whether Sensenbrenner's letter might qualify as an "ex parte communication that would subject a lawyer to discipline by the state bar as well."
Another round on Levy from the 11th Circuit
The Eleventh Circuit started the Booker day early with yet another opinion in the Levy case (previously discussed here and here). In Levy, the court continues to refuse to consider a Blakely/Booker claim that was not timely raised in the appellant's initial brief (which was filed before Blakely came along), but raised after Blakely was decided. Despite two prior opinions, a subsequent Supreme Court GVR for further consideration in light of Booker forced the Eleventh Circuit to explain again through US v. Levy, No. 01-17133 (11th Cir. July 12, 2005) (available here), why it refuses to even consider the defendant's Blakely/Booker claim.
I believe that most of the other circuits are considering Blakely/Booker claims in pipeline cases even when the claim was not raised in the appellant's initial brief (although a reader has now confirmed for me that the Fifth Circuit is taking the same basic approach as the Eleventh). Some might have expected the Supreme Court's GVR of Levy to have led the Eleventh Circuit to consider the appellant's Blakely/Booker claim. (As a lawyer said in an e-mail to me: "I can't see any way to interpret the Supreme Court GVR as meaning anything other than, 'yes, we hear you and understand that you were refusing to apply Booker to this case, but we're telling you to do so.'") But the Eleventh Circuit is sticking to its original refusal to consider the claim. I suspect a cert. petition might follow to give the Supreme Court one more look at the Levy apple, though I am not about to predict whether SCOTUS might take another bite.
UPDATE: Another lawyer writes in to suggest a different possible interpretation of the Supreme Court's GVR in Levy:
Here's an alternative [way to understand the Levy GVR]: "Oh look, here is a cert petition... and it raises a Booker claim... and the date of the court of appeals decision is prior to June 24, 2004 ... well, that's easy, send it back... where's the sunscreen? I have a plane to catch." I doubt the Court takes a closer look than that at any of the 600+ petitions raising Booker claims that they have GVRd.
Meanwhile, attorney David Oscar Markus discusses Levy in this post at his new blog.
July 11, 2005
All about Apprendi
Though I often talk of Blakely as the earthquake case which shook the foundations of structure sentencing reform, this recent article is a fitting reminder that the Apprendi decision really started the sentencing tremors. The article takes stock of Apprendi's impact and has this clever opening: "The most influential lawmaker to emerge from South Jersey in recent years arguably has not been a governor, senator or member of the House. It's a citizen who appealed his sentencing for a crime — Charles C. Apprendi Jr."
Among the interesting tidbits to be found in this article is a claim by Charles Apprendi's defense lawyer that the Apprendi decision has already been cited in nearly 30,000 cases and thus is "the third most-cited case in all of American law, behind only the court's 1973 ruling in Roe vs. Wade, ... and the 1966 case of Miranda v. Arizona." Also, the article states that Charles Apprendi ultimately served only about 1/3 of his prison term before being released to a halfway house, and that he is now eligible for parole and may "soon may be a free man."
SCOTUS delays Virginia execution
Not long after I finished this post speculating about the future of the Supreme Court's capital sentencing jurisprudence, we get this interesting news from Lyle Denniston over at SCOTUSblog that the Court "blocked the scheduled execution Monday night of a Virginia death row inmate, in a case that seeks to raise basic issues about a state's obligation to preserve DNA evidence for possible use in challenging a criminal conviction in post-conviction review." TalkLeft was all over this case here earlier today.
Interestingly, as Lyle notes, the defendant's "appeal has drawn the support of the National Association of Criminal Defense Lawyers and the Innocence Project [and his] petition was filed by attorneys at Kirkland and Ellis, led by [former Solicitor General] Kenneth W. Starr." A lot more detail about the case and Starr's involvement can be found in this front-page Washington Post article from this past March.
UPDATE: This Washington Post report provides the latest news on the case and the stay granted by the Supreme Court.
Will O'Connor's replacement shift capital jurisprudence?
In recent posts, I have spotlighted the impact of the Supreme Court's heightened scrutiny in capital cases lately, and I have also discussed Justice O'Connor's capital sentencing legacy. Today, over at the SCONo blog in this recent post, Tom Goldstein covers related ground in noting that SCOTUS "has before it for next Term four cases involving capital sentencing that the Court could use to turn in the direction of still greater deference to the states' administration of the death penalty." Especially in light of some of the interesting capital sentencing histories of "short-listers" like Alberto Gonzales and Edith Jones, it will be interesting to see if capital sentencing jurisprudence might become a significant part of the public debate after President Bush nominates a replacement for Justice O'Connor.
(Of course, as I have suggested before here and here, I think the biggest sentencing story in the wake of Justice O'Connor's retirement concerns the fate and future of the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule. But I seriously doubt this jurisprudence will become a central part of the public dialogue in the way capital sentencing could.)
Interesting 4th Circuit ruling on right to counsel
Today in US v. Taylor, No. 04-4104 (4th Cir. July 11, 2005) (available here), the Fourth Circuit addressed whether a criminal defendant has "a federal constitutional right to effective assistance of counsel with regard to a post-conviction, post-direct appeal motion for reduction of sentence made by the government pursuant to Federal Rule of Criminal Procedure 35(b)." In Taylor, the Fourth Circuit panel "answer[s] this question in the negative." That is, the Fourth Circuit concludes, "neither the Constitution's equal protection guarantees nor due process guarantees provide criminal defendants a right to effective assistance of counsel with respect to a motion by the government pursuant to Rule 35(b)."
Beyond is core holding (and some notable due process talk), Taylor provides an interesting window into the often overlooked world of post-sentence Rule 35(b) motions by the government for a sentence reduction based on the defendant providing substantial assistance.
More than a sperm whale's worth of relevant conduct
Today in US v. Garcia, No. 04-40963 (5th Cir. July 11, 2005) (available here), the Fifth Circuit, despite applying its tough plain error standard, vacated and remanded a sentence on Booker grounds. That fact alone (as well as the court's sensible dodge of an ex post facto argument) makes the case notable for legal reasons. But the decision really caught my eye because the facts indicated that the "district court calculated Garcia's base offense level based on relevant conduct involving 48,651.7 kilograms[!] of marijuana."
For those metrically challenged, 48,651.7 kilograms converts to over 107,000 pounds (or more than 53 tons) of marijuana. To provide a frame of reference, according to this entry in the whale encyclopedia, the typical sperm whale only weighs 45 tons. The extreme facts of Garcia cry out for some bad pot jokes — e.g., "... and you should have seen how many bags of potato chips the defendant stole for the munchies." Much better jokes from readers, with liberal references to the Grateful Dead or Reefer Madness (or even Raich), are highly encouraged in the comments.
Making mid-season assessments
Though others are surely gearing up for more SCOTUS mania this week, the two big events on my weekly planner are (1) the MLB All-Star Game in Detroit this Tuesday, and (2) an expected release of updated post-Booker data from the US Sentencing Commission (to appear on this page, I suspect) in conjunction with the National Sentencing Policy Institute run by the USSC and FJC on Monday and Tuesday in Washington DC (background here). Both events mark interesting half-way points: in the baseball universe, writers can assess the season at its symbolic midpoint; in the Booker universe, tomorrow just happens to mark the six-month anniversary of the Supreme Court's decision making the federal guidelines advisory.
Interestingly, I recall that last year I was analogizing the MLB All-Star Game to the line-up of stellar witnesses scheduled to testify before the Senate Judiciary Committee, which conducted a major hearing only weeks after Blakely was handed down (nostalgia here and here and here). In contrast, this year we are now a full six months out from the Booker ruling with no serious Senate discussion of a possible Booker fix — though, of course, the House and AG Gonzales have been talking up a Booker fix (background here).
Especially with the Senate now fixated on SCOTUS transition(s), I doubt we will see any serious federal legislative developments in the sentencing arena at least until the Fall. But, then again, a number of summer developments — ranging from the forthcoming new Booker data to the uncertain future of AG Gonzales and DOJ (discussed in this interesting Legal Times article) — could quickly shift the post-Booker universe.
So much sentencing news to review
Scrambling just to keep up with the sentencing news and SCOTUS rumor-mongering, I have not had a chance to compile a review post since this effort more than two weeks ago. But this weekend allowed for some catching up: I have recapped in prior posts recent circuit court Booker rulings and recent state court Blakely rulings. And, as detailed below, there have been a lot of other sentencing developments worth reviewing from the last two weeks:
SCOTUS DEVELOPMENTS AND COMMENTARY
- Initial end-of-Term reflections on criminal justice and sentencing
- More death and habeas from SCOTUS
- The impact of SCOTUS's heightened scrutiny in capital cases
- Capital ruling and Booker GVRs from SCOTUS
SCOTUS RETIREMENT(S) COMMENTARY
- Justice O'Connor retiring; what will her replacement think of Harris and Almendarez-Torres?
- Considering O'Connor's capital sentencing legacy
- A preview of O'Connor's replacement?
- CJ Rehnquist out, too? Whither (or wither) Harris, Almendarez-Torres (and Booker)?
CONGRESSIONAL DEVELOPMENTS AND COMMENTARY
- Sentencing from the halls of Congress
- House hearing on death penalty and habeas bills
- Talking points for the post-Booker world
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
- NACDL releases report on "Gonzales Cases"
- Barnett receives lower sentence after remand
- The evolution of white-collar sentencing
- Talking points for the post-Booker world
- Lil' Kim gets more than a lil' prison time
- Litigating in a post-Booker world
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Notable ruling on constitutionality of lethal injection
- Celebrating liberty, Blakely-style
- Honoring moms at sentencing
- More on the (medical) costs of long sentences
July 10, 2005
States of Blakely excitement
I have now had a chance to read quickly all of the important Blakely opinions handed down by the Arizona Supreme Court on Friday (basics here). Though the particulars are of greatest interest to folks in Arizona, the rulings reveal yet again how much important Blakely work is being done in the state courts and reinforce my belief, expressed in this post, that the dynamic realities of Blakely in the states might truly be the most interesting sentencing story of the past year.
If you get as excited as I do about Blakely in the states, not to be missed is next month's 2005 Conference of the National Association of Sentencing Commissions, which is taking place in Washington DC on August 7-9. The Conference is fittingly entitled "The Continuing Evolution of Sentencing," and as detailed in this schedule, there will be lots of state Blakely discussion throughout the conference (as well as some federal Booker talk, too). You can register for this exciting conference via this link.
And, to help everyone catch up on the most recent developments, below I have linked to some recent state Blakely posts:
- Arizona Supreme Court clears its Blakely docket
- Judicial federalism: diverse state high court Blakely rulings
- Problems in Indiana with advisory fix
- Blakely and jury trial rights getting serious respect in NC
- Resources for those in the Black (California's Blakely decision)
- Big Blakely rulings from the ends of the Union (rulings from Maine and Hawaii)
Talking points for the post-Booker world
At the conclusion of a panel on federal sentencing after Booker at the Sixth Circuit Judicial Conference that I participated in last month, James G. Carr, the Chief Judge of the US District Court for the Northern District of Ohio, rose from the audience to share a number of great insights about how judges and policy-makers should look at the post-Booker world. Chief Judge Carr was kind enough to write up a version of his "Post-Booker Talking Points" and gave me blog posting permission. (Also, an expanded version of Chief Judge Carr's insights will be published in a forthcoming issues of the Federal Sentencing Reporter.)
Given the news of Representative Sensenbrenner's eagerness to micro-manage sentencing outcomes from the halls of Congress, Chief Judge Carr's talking points about post-Booker sentencing are especially timely and should be must-reads for everyone in all three branches of the federal government.
July 10, 2005 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (0) | TrackBack
Barnett receives lower sentence after remand
After a bit of a rocky start handling Booker plain error, the Sixth Circuit in US v. Barnett, No. 04-5252 (6th Cir. Feb. 16, 2005) (discussed here), officially settled on the circuit's "presumed prejudice" approach (which seems to me to be the soundest of the three divergent Booker plain error standards). This past week I got word that Yervin Barnett was re-sentenced and received 235 months' imprisonment (the low end of the applicable guidelines range) instead of the originally imposed 265 months (the middle of the range). In the words of the person who sent me this news: "Looks like the Sixth Circuit was correct in remanding due to the possibility of a lower sentence."
Besides the fact that Yervin Barnett ultimately got a lower sentence, the Barnett case is worth remembering because I believe the government's petition for cert. is still pending, and thus Barnett could conceivably still serve as a vehicle for the Supreme Court to consider these circuit-splitting plain error issues. But, given that SCOTUS has already denied cert. in the Rodriguez case from the 11th Circuit (basics here, commentary here and here) and now that Yervin Barnett has actually been resentenced to a lower term, I would be very surprised by anything but a cert. denied in Barnett.
Recapping recent circuit rulings
Supreme Court transitions and rumors are, not surprisingly, garnering much attention these days; even this blog is subject to SCOTUS mania with recent posts about Justice O'Connor, CJ Rehnquist and SCOTUS's capital jurisprudence and cert choices. But, with the High Court apparently disinclined to take another Blakely/Booker case ASAP (basics here, commentary here and here), we shouldn't overlook the reality that lower courts, and especially the federal circuit courts, are primarily going to define the shape of the post-Blakely/Booker world. And, as detailed in the summary of recent posts below, the circuit courts have been giving a notable shape to that world of late:
- First Circuit says Crawford does not apply at sentencing
- Second Circuit on scope of prior conviction exception
- Big Booker twosome from the 7th Circuit
- Great Harris test case from the 7th Circuit
- Eighth Circuit to reconsider reasonableness en banc
- Trying to keep up with the Eighth
- Ninth Circuit says Blakely not retroactive
- Two of note on Booker from the 11th Circuit
Readers should recall that the federal defender blogs, which are assembled here, are especially valuable resources for commentary on important Booker rulings. Recently, the Second Circuit Blog, the Seventh Circuit Blog, and the Ninth Circuit Blog have been especially active, with Bill Theis here asserting that the Seventh Circuit's recent decisions "do much to unravel Booker," and Steve Sady here calling the Ninth Circuit's retroactivity ruling "ripe for en banc review."
Sentencing from the halls of Congress
In response to AG Gonzales' recent call for minimum guidelines, one thoughtful editorial suggested that if certain members of Congress are truly concerned about "judges legislating from the bench," then perhaps lawmakers should stop trying "to sentence convicts from the halls of Congress." But, as detailed in this fascinating front page article in today's Chicago Tribune, House Judiciary Committee Chair James Sensenbrenner and congressional counsel Jay Apperson apparently believe they should oversee sentencing outcomes from the halls of Congress.
The full Tribune article is a must-read, not only for those interested in sentencing law and policy, but also for anyone concerned about inter-branch relations in the federal system. Here are snippets:
In an extraordinary move, the chairman of the House Judiciary Committee privately demanded last month that the 7th U.S. Circuit Court of Appeals in Chicago change its decision in a narcotics case because he didn't believe a drug courier got a harsh enough prison term.
Rep. James Sensenbrenner (R-Wis.), in a five-page letter dated June 23 to Chief Judge Joel Flaum, asserted that a June 16 decision by a three-judge appeals court panel was wrong. He demanded "a prompt response" as to what steps Flaum would take "to rectify the panel's actions" in a case where a drug courier in a Chicago police corruption case received a 97-month prison sentence instead of the at least 120 months required by a drug-conspiracy statute....
Flaum declined comment on the situation, saying he does not publicly discuss matters pending before the court. He sent a letter back to Sensenbrenner saying it was inappropriate to comment on a pending case. But the panel amended its ruling to cite a Supreme Court case that showed Sensenbrenner was wrong.
[Jay] Apperson, who is chief counsel of a House Judiciary subcommittee, argues that Sensenbrenner is simply exercising his judicial oversight responsibilities. But some legal experts believe the action by the Judiciary Committee chairman, who is an attorney, is a violation of House ethics rules, which prohibit communicating privately with judges on legal matters, as well as court rules that bar such contact with judges without contacting all parties. Further, the letter may be an intrusion on the Constitution's separation-of-powers doctrine, or, at least, the latest encroachment by Congress upon the judiciary, analysts said.
The case at issue in this latest sparring between a member of Congress and the judiciary is United States v. Lissett Rivera, No. 02-3238 (7th Cir. June 16, 2005), amended (June 28, 2005) (available here). The Rivera decision, which was authored by Judge Frank Easterbrook, involves a procedurally complicated discussion of the guidelines and mandatory minimums (additional discussion of the Rivera case can be found over at the Seventh Circuit Blog in this post).
As the Tribune article explains, the ruckus has arisen in large part because the government in Rivera failed to appeal the district court's failure to impose a 10-year mandatory minimum sentence (although, as Peter G. notes in the comments to this post, that minimum perhaps was rightly not applied, despite the Seventh Circuit's statement to the contrary). According to the article, "Sensenbrenner also wrote a letter to Atty. Gen. Alberto Gonzales, demanding that the decision be appealed further and that he investigate why the U.S. attorney's office in Chicago did not appeal Rivera's sentence. Bryan Sierra, a spokesman for the Justice Department, said Sensenbrenner's letter was being reviewed."