July 23, 2005
Sex offender panic continues in Alabama
I thought that the passage of a bill by the Alabama House providing for mandatory castration of certain sex offenders (detailed here) was the most dramatic example of our society's modern social panic over sex offenders. But this article from the Mobile Register suggests that the mix of politics and sex offenses can lead to a lot of remarkable sentencing rhetoric in Alabama.
As the article reports, Former Governor Don Siegelman, who is expected to run for Governor again, "called for the Alabama Legislature to toughen a sexual offender bill Friday afternoon and include mandatory castration and the death penalty for persons convicted of violent sex crimes against children under 12." Here are some eye-opening quotes from the article:
"If it was up to me, I'd give them the death penalty on the first offense," Siegelman said Friday. "The attorney general has the Legislature in this special session. This is the perfect vehicle to do this thing right. They need to quit being so namby-pamby and squeamish about castration and put that back in the bill."...
During his Friday news conference, however, Siegelman forcefully snapped a 2-foot long pair of red garden shears for effect and said, "It will certainly give them something to think about."
Siegelman suggested the death penalty as an option for a second-time offense. "We don't owe the Joe Duncans of the world anything except a quick trip to the death penalty," Siegelman said, adding that he would give repeat offenders the option of death by lethal injection or "a big jolt from the big Yellow Mama."
In recent posts here and here, Gideon at a Public Defender is expressing understandable concerns about the rash of "sensationalist legislation" in this area. The rhetoric of Siegelman certainly suggests that cooler heads are unlikely to prevail anytime soon. Over at Beltway Blogroll, this post connects this story to the Justice Department's launch of its national sex offender registry (previously discussed in this post) which apparently has received "traffic so heavy that the registry was unavailable" this morning.
For a broader set of perspectives on sex offender sentencing and related issues, check out the links in this post.
Collateral consequences guide
Thanks to The Sentencing Project, I can report on an important new report by Margaret Colgate Love entitled, "Relief From The Collateral Consequences Of A Criminal Conviction: A State-By-State Resource Guide." Details on the report can be found in a summary here, which explains:
This comprehensive survey describes for each United States jurisdiction the laws and practices relating to restoration of rights and obtaining relief from the collateral disabilities and penalties that accompany a criminal conviction. It is the first-of-its-kind, and it illustrates the extraordinary variety and complexity of state and federal laws that impose a continuing burden on convicted persons long after the court-imposed sentence has been fully discharged. It is an important resource for policymakers interested in offender reentry and reintegration, for practitioners at all levels of the criminal justice system, and for people with a criminal record who are seeking to put their past behind them.
The Sentencing Project has been given permission to make available key portions of the study by its publisher, William S. Hein & Co., including this executive summary of the findings and conclusions. Margaret Love has stressed in a note to me that she warmly welcomed comments and contributions, and that she will update the study on a regular ongoing basis.
July 22, 2005
Alabama House seeks mandatory castration(!) for certain sex offenders
I have previously discussed in this post and elsewhere the new criminal justice legislation resulting from the modern social panic over sex offenders (which generally is, like so many criminal justice developments, driven more by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis). Whether through residency restrictions or tougher sentences, many legislators are seeking to flex their "get tough" muscles through new criminal laws targeting sex offenders.
But, as detailed in this AP article, the Alabama House has taken these developments to new heights:
The House passed a bill Thursday that would require mandatory castration of persons convicted of violent sex crimes against children under 12 and would require them to wear electronic monitoring devices for the rest of their lives after release from prison.
The House, during more than three hours of debate, heavily amended the legislation proposed by Gov. Bob Riley and Attorney General Troy King. The House bill would prevent all convicted sex offenders from working or loitering within 500 feet of a school, park or business that educates or entertains children. The bill passed the House 96-0.
As the AP article details, a "milder version of the legislation passed the Senate 35-0 [which] provides stiffer penalties for sex offenders, provides for electronic monitoring for at least 10 years and toughens requirements for them to report their location to police, but does not include the castration requirement or other tougher language added in the House." The article also notes that at least some members of the House realize they might have gone too far:
House Speaker Seth Hammett later said he was concerned the House might have amended the bill so much that it is no longer constitutional. He said he hopes the final version that comes out of the special session will be closer to what was recommended by the governor and King [and was passed in the Alabama Senate].
Speculating about Judge Roberts' view on criminal law issues
This interesting article from Knight Ridder Newspapers explores Supreme Court nominee John Roberts limited paper record and statements on criminal law matters. (My recent posts exploring how a Justice Roberts might impact the Supreme Court's criminal sentencing jurisprudence are all linked here.) Notably, in the article, Berkeley Professor John Yoo, who worked at DOJ during President Bush's first term, is quoted as saying he suspects that Roberts "would not have agreed with" the opinion in Booker:
That, Yoo said, is because Roberts believes that it's up to Congress is make the laws, and it was Congress that established the mandatory guidelines. "Roberts is someone who thinks courts should not get involved in second-guessing decisions by elected officials," said Yoo.
It is hard to know exactly what to make of this opaque comment, especially given the dual opinions in Booker and the fact that Professor Yoo would likely say that Chief Justice Rehnquist and Justices Scalia and Thomas also think "courts should not get involved in second-guessing decisions by elected officials." The comment also provides little clue as to how a Justice Roberts might vote on the many post-Blakely and post-Booker sentencing issues that will likely come before the High Court in coming terms, although it does reinforce my speculation in this post that President Bush may have actually nominated a Justice more in the mold of Chief Justice Rehnquist than in the mold of Justices Scalia or Thomas.
More interesting criticism of HR 1528
Thanks to this post by David Kopel over at The Volokh Conspiracy, I see that Mike Krause and David have produced this potent Issue Paper for the Independence Institute which assails H.R. 1528, the drug sentencing bill with the tacked-on Booker fix provisions. (Prior discussion and lots of commentary on this bill can be found at links here and here and here, and other opposition to H.R. 1528 is discussed here and here and here.)
The Issue Paper is titled "H.R. 1528: A Threat to Gun Owners, Families, and Privacy" and it dissects the many remarkable and disconcerting provisions of the bill. Here are the concluding passages of the Issue Paper:
H.R. 1528 is in no way a "conservative" bill. The bill:• Assaults the Second Amendment.• Assaults family privacy.• Tries to turn family members, college students, and neighbors into informers.• Recklessly intrudes into homes and other local spaces that are the proper concern of state and local governments, not the Congress.• Imposes draconian mandatory sentences, which are contrary to fundamental principles of justice, and of letting the punishment fit the crime.
Nor does H.R. 1528 reflect the best "liberal" values of open-mindedness, tolerance, and empiricism. Rather, H.R. 1528 continues the failed drug war policies of the past. At a time when our nation is under attack by radical Islamic terrorists, H.R. 1528 would divert federal law enforcement resources that should be used to hunt down al Qaeda spies, not to prosecute parents who deal with their children's misbehavior without the need to call the police.
Fifth Circuit finds "Fanfan error" not harmless
The Fifth Circuit in US v. Walters, No. 04-20669 (5th Cir. July 21, 2005) (available here), explains its basic framework for examining claims of Booker error for cases sentenced pre-Booker. The Walters court ultimately remands for resentencing because the defendant preserved what "this Court has termed 'Fanfan error,' [that is,] the district court applied the mandatory Guidelines to enhance a defendant's sentence absent any Sixth Amendment Booker error." Besides providing a good exposition of the Fifth Circuit's approach to these cases, Walters is noteworthy because of the lengths the government goes to argue that the "Fanfan error" was harmless, even though the record below makes painfully obvious that the district court wanted to give the defendant a lesser sentence.
Romney's "foolproof" death penalty looking foolish in Massachusetts
Thankfully, Howard at How Appealing took a break from Roberts-mania just long enough to note this amazing article from the Boston Phoenix, which discusses the fate of Massachusetts Governor Mitt Romney's capital punishment bill. (Background on Romney's bill, which the Governor had claimed would create a death penalty that was "virtually foolproof," can be found in a post here and in commentary here and here.)
The full title of the Boston Phoenix article, "The sudden death of Romney's dream: What once seemed like a clever ploy has become a political and policy disaster for the governor," captures its essence. The piece merits a full read, especially because it highlights some of the practical trade-offs that are inevitable in any modern debate over the death penalty. Here are some choice passages from a great article:
[T]he best example of how sad and lonely this bill is? The Romney team can't even provide the de rigueur prop for a piece of tough-on-crime legislation: a victim's teary-eyed family member. A few showed up to testify against the bill, and the governor's office has yet to find anyone in favor who will even stand alongside Romney for photo ops.
Romney's plan can best be described as a right-wing parody of a liberal's perfect death-penalty bill: an expensive and complicated new bureaucracy that would execute nobody. The bill calls for layers and layers of new processes and legal requirements, while restricting death-penalty eligibility so narrowly that it's hard to find any real case to which it would ever apply. Whether this was bad work by Romney's staff or the inevitable result of a quixotic endeavor, it's not likely to appeal to many people on either side of the debate....
Instead of a symbolic death penalty, [a local district attorney at the legislative hearing advocated for] some real crime-fighting capability.... This was the overarching theme of the hearing, and a sign of how this death-penalty bill is backfiring on Romney. It has become a focal point for discussion of what his administration has not done to improve public safety and criminal prosecution. Why not add police, increase prosecutorial budgets, improve crime labs, raise pay for court-appointed defense attorneys? "Why is this the best way to spend money?" asks State Senator Cynthia Creem (D-Newton), a member of the judiciary committee. "There was no answer to that."
UPDATE: Gideon at the blog a Public Defender has this detailed post providing addition coverage and insights on Romney's bill and the Phoenix article.
July 21, 2005
Travel plans means no more blogging today and perhaps lighter blogging in the days ahead. This break provides perhaps a chance to catch up on Blakely in the states or recent interesting federal circuit court decisions or the Roberts' nomination or the new USSC Booker data.
Second Circuit notes "tension" between supervised release scheme and Blakely
Yesterday the Second Circuit, in US v. Robinson, No. 04-6664 (2d Cir. July 20, 2005) (available for download below), discussed how a sentence based on a supervised release violation could functionally enhance a guideline sentence, and thus judicial factfinding within the federal supervised release scheme "is in some tension with the rationale of Blakely and Booker." Despite this "tension," the Robinson court ultimately rejects the defendant's Sixth Amendment claim.
Thanks to a helpful reader, I am able to provide the Robinson decision for download below even though for some reason the decision does not yet appear to be available on the Second Circuit's website.
An overview of Blakely in the states
With the Roberts' nomination and new USSC Booker data providing so much quality blog copy, I have not recently given much attention to Blakely in the states. But, as I detailed in posts here and here earlier this month, state Blakely developments continue to be dynamic. And those interested in catching up on all the action should already have their calenders marked for next month's 2005 Conference of the National Association of Sentencing Commissions taking place in Washington DC on August 7-9. As fully 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 via this link.
My attention has returned to state Blakely stories in part because one of my crackerjack research assistants has recently assembled and organized many of my state Blakely posts in a series of Word documents. Anyone interested in taking another look at the general story of Blakely in the states can download below a collection of posts that provide an overview of basic post-Blakely state legal developments.
Interesting opinion on "sentencing factor manipulation"
The First Circuit on Wednesday issued an interesting opinion in US v. Fontes, No. 04-2237 (1st Cir. July 20, 2005) (available here), which addresses so-called "sentencing factor manipulation." Here is the Fontes court's legal overview (quotes/cites omitted):
Sentencing factor manipulation takes place where government agents have improperly enlarged the scope or scale of a crime. Such claims may arise where the government employs undercover agents in sting operations. We have recognized the court's power to impose a sentence below the statutory mandatory minimum as an equitable remedy for sentencing factor manipulation by the government. Because, however, by definition, there is an element of manipulation in any sting operation, we have stressed that this form of relief for sentencing factor manipulation is reserved for only the extreme and unusual case.
Interestingly, in Fontes the district court made a "factual determination that the government harbored an improper motive of exposing Fontes to a higher sentence when agents instructed the informant to deviate from his usual practice and purchase crack rather than powder cocaine from Fontes." Nevertheless, even though a form of "sentencing factor manipulation" had taken place, the district court still decided to impose a sentence above the statutory mandatory minimum, and the First Circuit affirmed that decision. Appellate Law & Practice has more on Fontes here.
July 20, 2005
Seventh Circuit give short shrift to Booker ex post facto claim
In a brief opinion today in United States v. Jamison, No. 05-1045 (7th Cir. July 20, 2005) (available here), the Seventh Circuit disposed in quick fashion of the defendant's claim that ex post facto/due process principles limited application of the Booker remedy to a case in the pipeline when Booker was decided.
The Seventh Circuit Blog has a full summary of Jamison here, though I hasten to add that the Jamison facts seemed not to be the best case for testing what I view as the strongest ex post facto/due process claim (which arises only if/when a judge uses his or her new post-Booker discretion to impose a sentence above what even the guidelines would have allowed pre-Booker). However, the broad rationale and language employed by the court in Jamison might readily be read to dispose of any and all Booker ex post facto/due process arguments regardless of the factual particulars.
Sentencing items around the blogsphere
Though much of the blogsphere, like this blog, is caught up in Roberts' talk, there are more than a few sentencing items that should not get lost in all the SCOTUS buzz:
- CrimProf Blog here links to an interesting article about Missouri's repeal of a law passed "at a time when prison populations were soaring and state revenues were shrinking" that had "allowed certain nonviolent felons with no prior prison time to seek release after serving 120 days."
- Dan Markel at Prawfsblawg has this post expressing concerns about the plea deal given by federal prosecutors to Eric Rudolph that took the death penalty off the table; Dan is troubled in part because "prosecutors agreed to make this deal after consulting the families of the victims of Rudolph's rampages and the majority of them agreed."
- White Collar Crim Prof Blog here discusses the 10-year sentence that US District Judge Michael Baylson imposed on former Philadelphia Treasurer Corey Kemp following his conviction on conspiracy and right of honest services fraud charges. Notably, that sentence was nearly 2 years longer than the 97 month guideline sentence that federal prosecutors had urged.
More great SCOTUS insight from Stuntz
Over at The New Republic Online, Professor Bill Stuntz has followed up his great commentary about the Supreme Court's role in the criminal justice system (which I discussed here) with another great commentary about Judge John Roberts. In this new commentary, Stuntz echoes the point I made in this post that President Bush may have actually nominated a Justice more in the mold of Chief Justice Rehnquist than in the mold of Justices Scalia or Thomas. Stuntz expresses concern that this fact might mean that Justice Roberts could be unduly concerned with results rather than reasoning, and thus tempted "to vote [his] instincts and tell [his] law clerks to come up with the rationales."
For reasons eloquently developed in this terrifically interesting post last year by Ken Lammers at CrimLaw (which I discussed here), a Justice focused on results rather than reasoning is particularly disconcerting in the universe of criminal justice jurisprudence. As Ken has explained, in the criminal justice arena, a concern with results usually means that "every judge is a judicial activist when it comes to upholding the conviction of a 'criminal' or defending the processes of the criminal justice system."
If indeed Roberts has more of a Rehnquistian concern for results than Scaliaesque concern for reasons, I would not expect O'Connor's replacement to significantly shift the on-going (tortured) development of the Almendarez-Torres--Apprendi--Harris--Blakely--Booker line of cases. But then again, if Roberts is in fact personally opposed to the death penalty, perhaps his development of a results-oriented jurisprudence could really shake up the constitutionality of capital punishment and death sentencing procedures.
Fifth Circuit vacates death sentence
The Fifth Circuit today in Brooks v. Dretke, No. 04-70023 (5th Cir. July 20, 2005) (available here), vacated a death sentence. That's right, the Fifth Circuit vacate a death sentence. Here's the opening paragraph of the decision (per Judge Higginbotham):
On the first day of the sentencing phase of his capital trial, a member of the jury that had convicted Carl L. Brooks was arrested for the misdemeanor offense of unlawfully carrying a weapon and faced prosecution by the district attorney's office then prosecuting Brooks. A loaded pistol was found in his briefcase in the routine screening of a security checkpoint in the courthouse. Whether this jury misconduct tainted the jury's sentencing decision of death is the only issue remaining in this case today. We are persuaded that while the conviction of capital murder must stand the sentence of death must be vacated.
Below I have organized and linked my posts from Tuesday on Supreme Court nominee Judge John Roberts and also some prior posts with broader reflections on SCOTUS and criminal justice issues:
ON JUDGE ROBERTS
- What might Justice John Roberts mean for sentencing jurisprudence?
- Judge Roberts' DC Circuit sentencing opinions
- Is Judge Roberts personally against capital punishment?
- Pondering Judge Roberts' mold
- More great SCOTUS insight from Stuntz
- Great insights on SCOTUS and criminal justice
- More great sentencing reading, especially for SCOTUS watchers
- Will O'Connor's replacement shift capital jurisprudence?
- Initial end-of-Term reflections on criminal justice and sentencing
- More death and habeas from SCOTUS
Pondering Judge Roberts' mold
Tom Goldstein in this post wraps up his commentary for the night by suggesting that Judge Roberts as a Justice is likely to "be like William Rehnquist, his former boss." Put another way, it seems that President Bush may have actually nominated a Justice more in the mold of Chief Justice Rehnquist than in the mold of Justices Scalia or Thomas.
For lots of issues and cases — including many criminal justice issues and cases — the differences in these molds may often prove inconsequential. But, as I have stressed in posts here and here, the differences between Chief Justice Rehnquist and Justices Scalia and Thomas in the Apprendi-Blakely-Booker line of cases is quite pronounced and consequential. After Judge Roberts is confirmed (which seems a near certainty), I hope that SCOTUS will start grant cert on many of the pressing post-Blakely and post-Booker questions so that we can swiftly discover Judge Roberts' true sentencing mold.
Judge Roberts' DC Circuit sentencing opinions
For anyone eager to review the sentencing work of Judge John Roberts during his tenure on the DC Circuit, here for your reading pleasure are some (all?) of the sentencing decisions authored by Judge Roberts (roughly in reverse chronological order with links):
- US v. Smith, No. 03-3087 (DC Cir. July 20, 2004) (available here), additional per curiam opinion denying petition for rehearing on Booker grounds (DC Cir. Mar. 18, 2005)(available here)
- US v. Mellen, No. 03-3100 (DC Cir. Dec. 21, 2004)(available here)
- US v. West, No. 03-3149 (DC Cir. Dec. 10, 2004) (available here)
- US v. Tucker, No. 03-3139 (DC Cir. Oct. 26, 2004) (available here)
- US v. Stanfield, No. 03-3104 (DC Cir. March 19, 2004) (available here)
- US v. Bolla, No. 03-3104 (DC Cir. Oct. 24, 2003) (available here)
The only clear conclusions I draw from a very quick scan of these opinions is that, even though he has served a relatively short time on a circuit with a relatively small criminal docket, Judge Roberts still has had occasion to experience in a few cases the intricate joys of federal guideline sentencing and the Apprendi-Blakely-Booker line of decisions.
July 19, 2005
Is Judge Roberts personally against capital punishment?
I just received an interesting report that there is a rumor going around on a national death penalty discussion list "that Roberts is a 'pro-life conservative' and personally opposed to the death penalty." I suppose this post is form of rumor-mongering, but I cannot resist relaying this interesting rumor given that, as I have discussed here, Justice O'Connor's replacement could greatly impact SCOTUS's death penalty jurisprudence.
It will be very interesting to see if death penalty issues — or other sentencing issues — play a significant role in the public debate over Justice Roberts or have a central place in Judge Roberts' confirmation hearings.
What might Justice John Roberts mean for sentencing jurisprudence?
Now the name is John Roberts for the Supreme Court over at SCONo and elsewhere, including this AP report. From the SCONo folks here is a lot of background on Judge Roberts. Though I'm personally keen on graduates from my law school alma mater on the High Court, Judge Roberts lacks trial court experience and lacks real criminal law experience. But if he is good enough for Tom Goldstein....
My sense is that there is little sound basis for predicting, or even guessing, Judge Roberts' views on a range of criminal justice issues. But, as I have discussed here, any replacement for Justice O'Connor could shift the direction of SCOTUS's death penalty jurisprudence. And, as I have stressed in recent posts here and here, there is no doubt that Judge Roberts, if confirmed, not only would be a key vote concerning the fate of the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule, but he also could play a pivotal role in further development of what the Booker remedy really means when the High Court takes up follow-up federal sentencing cases in the terms ahead.
I highly encourage readers to use the comments to share any Judge Roberts' anecdotes or insights which might provide some basis for reasonable speculation concerning his views on criminal justice matters.
UPDATE: TalkLeft, via SCONo, has this list of Judge Roberts' criminal law opinions from his time on the DC Circuit. And this growing Roberts' opinion list from SCONo has a number of criminal justice decisions at the top.