July 19, 2005
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"