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.
What was Edith Clement like as a sentencing judge?.... update: "nevermind"
The blogsphere is predicting that the President will tonight name Edith Clement as his nominee for the Supreme Court to replace Justice O'Connor (consider posts over at SCONo and Volokh and UTR). Of course, the same blogsphere predicted that Chief Justice Rehnquist was retiring earlier this month, so I plan to have the television on when President Bush make his announcement at 9pm this evening.
In the meantime, SCONo and Volokh and others have lots and lots of Clement coverage, including this growing list of interesting circuit opinions and this interesting comment thread. Not surprisingly, no one is (yet?) focused on my question about what Clement might think of Harris and Almendarez-Torres. Moreover, I do not yet see any talk of her work as a district judge from 1991 to 2001, although I have stressed in this post that I consider Clement's district court experience (which also necessarily means a bit more in-the-trenches criminal law experience) is a significant plus.
I suspect some of my readers might have had direct experience with Clement as a district judge, and I am of course especially interested in her record as a sentencing judge. I hope readers will use the comments to share any experiences or insights they have about Judge Clement.
UPDATE: Redstate.org is saying now that "staffers on the Senate Judiciary Committee have begun steering people away from Edith Brown Clement." Such crazy fun.
FURTHER UPDATE: Perhaps it is a little early to say "nevermind," but now ABC news is reporting Judge Clement is not the nominee. Tom Goldstein at SCONo is now off the Clement bandwagon. Redstate.org is talking about John Roberts here and now I am really stoked for 9pm.
Points for creativity?
If ever in these crazy modern times you find yourself nostalgic for ancient common law writs, I have a sentencing case for you. Today in US v. Holt, No. 04-15848 (11th Cir. July 19, 2005) (available here), the 11th Circuit faced a Blakely claim raised in a writ of audita querela: "Holt argues that a federal court may vacate a criminal conviction or sentence, pursuant to a writ of audita querela, if there is a legal objection that did not exist at the time the judgment was entered." As the 11th Circuit explains:
Audita querela, Latin for "the complaint having been heard," was an ancient writ used to attack the enforcement of a judgment after it was rendered. Black's Law Dictionary 126 (7th ed. 1999). The common law writ was typically employed a judgment debtor in a civil case against the execution of a judgment because of some defense or discharge arising subsequent to the rendition of the judgment or the issue of the execution. The writ of audita querela was abolished, however, in the civil context by the Federal Rules of Civil Procedure. We have not addressed the writ's continued applicability in the criminal context.
Awarding no points for the defendant's creativity in the invocation of common law writs, the 11th Circuit rejects the defendant's efforts: "We hold that a writ of audita querela may not be granted when relief is cognizable under 28 U.S.C. § 2255, as it is here. Moreover, construing Holt's motion or writ as one made pursuant to § 2255 we find that he has failed to obtain an order from our court authorizing the district court to entertain Holt's second and successive motion for such relief."
Fourth Circuit provides spirited defense of the prior conviction exception
Today in US v. Cheek, No. 04-4445 (6th Cir. July 19, 2005) (available here), the Fourth Circuit provided a spirited defense of the Almendarez-Torres "prior conviction exception" to the Apprendi-Blakely rule. In Cheek, the Fourth Circuit, after thoroughly reviewing the full Blakely line of cases, asserts:
It is thus clear that the Supreme Court continues to hold that the Sixth Amendment (as well as due process) does not demand that the mere fact of a prior conviction used as a basis for a sentencing enhancement be pleaded in an indictment and submitted to a jury for proof beyond a reasonable doubt.
Then, perhaps recognizing that the vitality of Almendarez-Torres may still be subject to question, the Check court goes on to explain that "several sound reasons may explain why the Almendarez-Torres recidivism exception has not been overruled:"
First, recidivism involves the status of a defendant as a repeat offender based on past convictions and not the offense being tried before the court.... [Editor's Note: This is an echo of the offense/offender distinction developed in my Conceptualizing Blakely article.]...
Second, and related to the first point, a prior conviction has already been determined in accordance with the safeguards of due process and the Sixth Amendment and need not be subjected to a jury for a second time....
Third, if prior convictions were generally made elements of criminal offenses, the introduction of a prior conviction at trial could unfairly prejudice the defendant....
And fourth, it has been the longstanding custom for over 200 years to treat recidivism as a sentencing factor, and not as an element of the instant offense.
Criminal history and Shepard's impact
In my coverage of the Supreme Court's opaque sentencing work in its Shepard ruling in March (basics summarized here, commentary here and here and here), I particularly stressed what the decision might portend for the Almendarez-Torres prior conviction exception. However, a ruling today from the Sixth Circuit serve as a reminder that Shepard's rules for the consideration of a defendant's criminal history are consequential no matter what happens to the Almendarez-Torres prior conviction exception.
In US v. Hargrove, No. 04-3338 (6th Cir. July 19, 2005) (available here), the Sixth Circuit applies Shepard and related precedents to conclude that it was improper for the district court to find a particular prior felony was violent within the meaning of the Armed Career Criminal Act (a finding which served to trigger a minimum sentence of fifteen years in prison after the defendant's jury conviction of being a felon in possession of a firearm ). In addition to the intricate sentencing discussion at the end of the opinion, Hargrove is also interesting reading because of its consideration (and rejection) of the defendant's claim that he was entitled to a jury instruction on the defense of necessity during his trial for being a felon in possession of a firearm.
Does SCOTUS need a trial judge?
As I noted in this post, Professor Bill Stuntz's latest fascinating Supreme Court commentary at The New Republic Online got me to thinking about the possible virtues and potential impact of a replacement for Justice O'Connor who has some direct experience as a sentencing judge. In turn, my mind wandered to the more basic question of Supreme Court Justices with experience as a trial court judge. Notably, Justice O'Connor from 1975 until 1979 served as a judge of the Maricopa County (Az.) Superior Court, but I believe no other member of the current Court has any experience as a state or federal trial judge.
[CORRECTION: An astute reader noted that Justice Souter also has state trial court experience as a New Hampshire Superior Court Judge from 1978 to 1983 before he became a New Hampshire Supreme Court Justice. I should have read the Justices' bios more closely.]
Though this is perhaps a question I should just direct to the folks at SCOTUSblog or Howard at How Appealing, I wonder if any of my readers know who was the last US Supreme Court Justice who served as a federal district judge. I think it is reasonable to contend that one reason modern SCOTUS opinions tend to be so fractured and doctrinally opaque — think Booker! — is because no recent Justices have had the experience of trying to apply such fractured and doctrinally opaque rulings at the federal district court level.
Interestingly, among the many "short list" names of possible O'Connor replacements often repeated in the press, I believe only Judges Clement and Garza have any federal trial court experience. According to the bios at SCONo, Judge Clement was a judge on the US District Court for the Eastern District of Louisiana from 1991 to 2001, and Judge Garza was a federal district court judge for the US District Court for the Western District of Texas from 1988 to 1991 and a state district court judge for the district of Bexar County, Texas from 1987 to 1988. Considering only judicial perspective, and not politics, I wonder if Judges Clement and Garza should be at the top of the short list.
UPDATE: Interestingly, today's SCOTUS buzz, as detailed in this AP article, is all around Edith Clement. I wonder what her reputation was as a sentencing judge during the 10 years she served on the federal district court.
Levy and the Booker pipeline in the 11th Circuit
Thanks to How Appealing, I see that law.com has made available this article from the Daily Business Review which discusses the 11th Circuit's most recent Levy decision (background here) and the way in which the 11th Circuit is handling Booker pipeline cases. Among other interesting items, the article indicates that over 100 cases from the 11th Circuit have been GVRed by the Supreme Court on Booker grounds.
July 18, 2005
Great insights on SCOTUS and criminal justice
Over at The New Republic Online, Professor Bill Stuntz has this fantastically interesting commentary about the Supreme Court's role in the criminal justice system. Here are just a few passages from a short piece that raises more interesting ideas than most articles 10 times longer:
[T]he Supreme Court's most important job is not managing the culture wars. Regulating the never-ending war on crime is a much bigger task. Alas, it may also be the job the Court does worst.
Civilizations define themselves by when, how, and whom they punish. Those choices are especially important in a society like ours, with a long history of both criminal violence and official racism. Forty-five percent of American prisoners are black. The imprisonment rate — the number of prison inmates per 100,000 people — stood at 482 in 2003. Among black males, the figure was 3,405. For black men in their late twenties, the number exceeds 9,000. Court decisions that help shape those numbers are vastly more important than the latest church-state fight. And the justices do shape those numbers, both by what they regulate and by what they leave alone....
Why does the Court do such a bad job in this area? The answer may be simple ignorance. The criminal justice system is a massively complex enterprise. Figuring out the effects of the latest abortion ruling is child's play compared with unpacking the consequences of decisions like Wardlow and Kyllo on policing or the effects of cases like Miller-El and Booker on criminal trials and plea bargains. Getting those consequences right would be hard even for experts. And the highest court in the land is not filled with experts. Souter is the only sitting justice with substantial experience in criminal litigation — and that was on the not-exactly-mean streets of New Hampshire. Frontline urban prosecutors and defense attorneys rarely end up on federal appeals courts, the breeding ground for future justices. So they never make it to presidential short lists.
Justices who have never seen the inside of a police station are happy to expound on the virtues and vices of different kinds of drug enforcement. If they knew more, they might say less. Veterans of the criminal justice trenches understand that, when it happens, productive change comes from the men and women who serve in those trenches.
One reason I like this commentary so much is because it spotlights, as I have in recent posts here and here and here, that Justice O'Connor's replacement could possibly have a profound and surprising impact on the Supreme Court's criminal justice jurisprudence. I also like the commentary because it has me thinking about the possible virtues and potential impact of an O'Connor replacement who has some experience as a sentencing judge (although, interestingly, very few of the "short-list" names bandied about by the press have experience as a federal or state trial judge).
Since the latest buzz is that we may get a nominee from President Bush this week, now seems like a good time to collect some recent posts on these SCOTUS topics:
- More great sentencing reading, especially for SCOTUS watchers
- Justice O'Connor retiring; what will her replacement think of Harris and Almendarez-Torres?
- Will O'Connor's replacement shift capital jurisprudence?
- Considering O'Connor's capital sentencing legacy
- CJ Rehnquist out, too? Whither (or wither) Harris, Almendarez-Torres (and Booker)?
- Initial end-of-Term reflections on criminal justice and sentencing
- More death and habeas from SCOTUS
"Getting out early" through a federal drug program
A few weeks ago, I had the opportunity to post here attorney Alan Ellis's co-authored article "Litigating in a post-Booker World," which appeared in the Spring Issue of ABA Criminal Justice Magazine. Now I can also make available another valuable article co-authored by Alan Ellis on a distinct topic which is forthcoming in the next issue of the ABA's Criminal Justice Magazine.
Entitled "Getting Out Early: BOP Drug Program," the article now available for download below describes the Federal Bureau of Prisons' Comprehensive Residential Drug Abuse Program (RDAP). As explained in the article, RDAP is "the only mechanism by which federal inmates can now potentially receive a reduction in their sentences beyond earning good conduct time credit."
UPDATE: FPD Steve Sady was kind enough to send me a note to highlight that this post on the Ninth Circuit Blog discusses the RDAP program and notes that some prisoners sentenced for offenses involving gun possession may be eligible for the program.
Sentencing and searching in the Seventh Circuit
The Seventh Circuit today in US v. Barnett, No. 04-3646 (7th Cir. July 18, 2005) (available here) had ocassion to address "the validity of a blanket waiver of Fourth Amendment rights as a condition of probation." Judge Posner, writing for the court, notes that the defendant bargained to receive, instead of an imprisonment term, the probation sentence which included a waiver of Fourth Amendment rights. Judge Posner, in turn, concludes that upholding the validity of the waiver properly gives both the defendant and the government the benefits of their rational bargain.
Two more editorials assailing Sensenbrenner's letters
This morning brings two more editorials criticizing 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 and collected here):
- The Washington Post, in this editorial, calls Sensenbrenner's letter to the Chief Judge of the Seventh Circuit "an action unbefitting any member of Congress" and "an intolerable affront to the independence of the courts."
- The Milwaukee Journal Sentinel, in this editorial, highlights that the letter "speaks to the influence members of Congress can exert on the judiciary, particularly if the intervening member of Congress chairs the committee that holds the federal judiciary's purse strings."
July 17, 2005
Trying to parse the USSC's latest data
The latest post-Booker sentencing data released by the US Sentencing Commission (discussed here and here) are fascinating. But I find it extraordinarily challenging to draw any firm conclusions about exactly what the data all means. Here are a few quick reactions after having a little time to look over the numbers.
No drifting?: Especially because average and median sentence lengths seem stable (or even rising a bit) post-Booker, it is hard to find a lot of support for the contention made by AG Alberto Gonzales, in his speech last month advocating a Booker fix (basics here, commentary here and here and here), that we are seeing a "drift toward lesser sentences." And yet, because there are more below guideline sentences now than pre-Booker, perhaps the sentence length data reflect a change in the mix of cases. (Indeed, I have been speculating since Blakely that fewer cases might get prosecuted in the federal system due to all the legal commotion, and that the least serious cases would be those most likely to be left to the states.)
Increased disparity?: In his speech last month, AG Gonzales also asserted that "the evidence the Department has seen since the Booker decision suggests an increasing disparity in sentences." The USSC's latest numbers perhaps provide support for this contention based on the circuit-by-circuit data. The rates of judicial variation from the guidelines are distinctly different in different circuits (e.g., in the Second Circuit, judges are initiating departures or Booker variances in roughly 1 of every 4 cases, while in the Fifth Circuit, judges are doing so in roughly 1 of every 10 cases). But, of course, the rates of prosecutorial variation from the guidelines are also distinctly different in different circuits (e.g., in the Ninth Circuit, prosecutors initiate departures in roughly 1 of every 3 cases, while in the First Circuit prosecutors do so in roughly 1 of every 8 cases). And, as pre-Booker data on departures from 2002 and from 2003 spotlight, significant circuit-by-circuit variations were common in the pre-Booker era.
So, what firm conclusions can be drawn? Perhaps only that the Booker experiment has not (yet?) produced a radical change in federal sentencing outcomes, and thus there does not seem to be a dire need for the sort of Booker fix urged by AG Gonzales. Because, as stressed in this post and in my USSC testimony here and here, another round of legal confusion and uncertainty would likely follow any major structural changes to the federal sentencing guidelines in the wake of Booker, I think Congress would be wise to leave well enough alone at least for the time being.
Insightful commentary on the Sensenbrenner flap
In today's San Francisco Chronicle, Debra Saunders has this thoughtful commentary about the remarkable letters that House Judiciary Chairman James Sensenbrenner wrote to the Chief Judge of the Seventh Circuit and AG Gonzales concerning decisions in a drug sentencing case. (Background and commentary on this matter are linked below.) Here's a taste:
After years of pushing through draconian mandatory-minimum sentences that often force judges to sentence low-level, nonviolent, first-time offenders to years, decades even, behind bars, Sensenbrenner has made himself a grand inquisitor, free to challenge any legal decisions that don't work for him....
Meanwhile, you have to wonder why a member of Congress felt free to hector the judiciary and executive branches. It's not enough for him to write laws. Now he wants to oversee how cases are tried and make sure that sentences for first-time offenders are long enough....
It's easy for Washington to enact long sentences. Unlike judges, House members never have to look into the faces of the accused. They never have to worry if a person who is easily redeemable will lose her young adulthood to prison. They don't have to see the humanity they lock up. And so they lose their own humanity.
- Sentencing from the halls of Congress
- 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"