January 22, 2005
More Booker (and Blakely) news and commentaries
The newspapers and news magazines continue to cover and comment on various aspects of the Booker decision. Here's a run down of just some of the pieces that have caught my attention today:
- Continuing the editorial page praise of Booker (noted here and here and here), the Toledo Blade here has a strong piece on the Supreme Court's "Double, But Clear, Vision."
- Providing local assessments of Booker, with interesting quotes from judges and litigants, are newspaper articles from Arkansas and Iowa.
- Contributing deeper reflections on Booker and its place in the broader story of sentencing reform are a terrific set of pieces in Newsweek, Time, the New Republic and at law.com.
- And in Blakely news, here is an article from Washington state detailing that local officials are still struggling with the meaning and impact of Booker's predecessor.
January 21, 2005
Always remember to show your work
This afternoon, a memorandum, signed by Ricardo H. Hinojosa, Chair of the US Sentencing Commission, and Sim Lake, Chair of Criminal Law Committee of the Judicial Conference, was sent to all District Judges and other key court personnel concerning "Documentation Required to be Sent to the Sentencing Commission." The two-page memo, which can be downloaded here, "reiterates and emphasizes the importance of continuing to submit sentencing documents to the Sentencing Commission in accordance with the requirements of 28 USC § 994(w)." Here's the memo: Download ussc_documentation_request.pdf
The USSC memo sends a strong and critical message about documenting post-Booker sentencing decisions. It stresses that it is "particularly important that judges continue to comply with the requirements of 28 U.S.C. § 3553(c) by providing a complete statement of reasons for imposing the sentence" and notes that "documentation will be useful to the Judiciary, the Commission, and the Congress as we strive to continue to carry out the goals" of sentencing reform.
In a related vein, the blog Ex Post is doing a stunning job live-blogging the work at the on-going Columbia Law School conference on state sentencing. Already posted are wonderful accounts of Friday's two panels (here and here) and two lectures (here and here), and I also see two potent pre-conference about Booker (here and here). And, the Blakely Blog now also has extended posts covering Friday's two panels (here and here). All great reading.
Also, while we are in a documentation mode, let me spotlight just a few of my major Booker commentary posts of note in recent days:
- Burdens of proof and a new due process of sentencing
- Increased sentences post-Booker
- So, what is "reasonable"?
- Are the FSG still mandatory in child crime and sex offense cases?
- Anecdotes, data and the USSC's big challenge
- Do federal sentencing judges have discretion to Blakely-ize?
The 11th Circuit addresses (small) Booker issues!
I had an inkling we might see some federal circuit court action on Booker before the end of this week, and now I can report that, in addition to the Eighth Circuit's remand ruling in Coffey, not-so-casual Friday has also brought us two decisions from the Eleventh Circuit. Both Eleventh Circuit rulings deal with relatively small issues, but they are still significant and consequential rulings
First, in US v. Rubbo, No. 04-10874 (11th Cir. Jan. 21, 2005) (available here), the Court denies an appeal (and blocks a Blakely/Booker claim) by upholding the applicability of an appeal waiver using contract principles to interpret the language of the plea agreement to keep the appeal waiver applicable.
Second, in In re Anderson, No. 05-10045F (11th Cir. Jan. 21, 2005) (available here), the Court refuses to entertain a successive habeas petition based on Booker because, under the terms of the federal habeas statute, such a claim can only be brought after the Supreme Court expressly declares a decision retroactive (which, obviously, has not (yet?) happened). This ruling is a direct echo of the 11th Circuit's Dean ruling in the weeks after Blakely (basics here). In the immortal words of Yogi Berra, it's deja vu all over again.
Burdens of proof and a new due process of sentencing
Steve Sady over at the Ninth Circuit blog has this important and powerful post arguing that, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing. Among the potent elements of Steve's argument is its reliance on statutory construction principles layered on top of constitutional concepts.
In addition to noting Steve's extremely valuable post, I want to spotlight the broader idea that the reasoning of Justice Stevens' merits majority to support the Court's interpretation of the Sixth Amendment could — and I think should — engender a wholesale reconsideration (and invigoration) of due process concepts at sentencing. As I discussed at length in this post, I found highly significant that Justice Stevens' opinion for the merits majority in Booker expressly discussed the impact of modern sentencing reforms on the Court's Sixth Amendment jurisprudence. See Stevens slip op. for Court at 12. Part of why this passage caught my eye was because it could be readily recast so as to raise new arguments about the demands of due process in modern sentencing systems.
Consider specifically how changing the Sixth Amendment/jury right language to Fifth Amendment/due process language in the key passage of Justice Stevens defense of the Court's ruling would seem to breathe new life into new due process claims. My alterations are in bold.
Discussing the "new trend in the legislative regulation of sentencing," Justice Stevens explains that "the Court was faced with the issue of preserving an ancient guarantee [of due process] under a new set of circumstances:"
The new sentencing practice forced the Court to address the question how the right of [due process] could be preserved, in a meaningful way guaranteeing that [procedural protections] would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by [Fifth] Amendment formalism but by the need to preserve [Fifth] Amendment substance.
To reiterate a point I make in my recent article in the Winter 2005 issue of the ABA's Criminal Justice magazine, until Apprendi and Blakely came along, few seriously questioned sentencing structures that still relied lax procedures for proving the truth of facts that could lead to extended sentences. But I now read the language of Justice Stevens' opinion for the merits majority in Booker to support the idea, long overdue, that we should not blindly follow old constitutional precedents when examining and applying a radically new sentencing structure.
Increased sentences post-Booker
In this post late last night discussing post-Booker sentencing anecdotes, I noted the story of US District Judge Randy Crane using his new discretion to extend the prison terms of three officials charged with accepting bribes. I also noted that, as detailed in this post, I am not sure due process principles permit a post-Booker sentence increase based on pre-Booker conduct.
Thanks to Peter Henning at White Collar Crime Prof Blog, I now see that the US Attorney's Office in Houston (S.D. Tex.) has issued a press release bragging about these increased sentences. Peter spotlights the due process issues raised by the case in his post, but the press release now has me thinking about prosecutorial ethics and future Justice Department representations about advisory guidelines:
First, though some comments to my prior post suggest that the due process question is contestable, I must wonder out loud if individual prosecutors have an obligation to make an independent judgment (and not wait for a defense objection) about whether the law allows an increase in a post-Booker sentence based on pre-Booker conduct. Relatedly, in the name of consistency, I wonder if Main Justice should issue some sort of directive about this matter to its offices. Otherwise I could imaging varying legal and policy judgments from different US Attorneys Offices about whether to try to reopen and seek longer sentences in past-sentenced cases.
Second, I would bet that DOJ is keeping stats on how many sentences are being imposed below the guideline range now that the guidelines are advisory. I hope DOJ will also track, and be sure to publicly highlight, in how many cases judges expressed an interest in going higher than the guidelines. More generally, though DOJ might be heard to complain that, because of due process limits, advisory guidelines are a one-way ratchet for cases in the pipeline, I hope they will also always acknowledge going forward that advisory guidelines may lead to tougher sentences at least in some cases.
UPDATE: Peter Henning at White Collar Crime Prof Blog has now added some additional terrific insights about these issues here, and he notes that they issues are "particularly important in white collar crime cases because the pressure for an upward sentence ... will be greater in the area of public corruption and corporate/business crime (e.g. accounting, securities, bank, & insurance fraud) than in other prosecutions."
Dynamic state Blakely development
In honor of the now on-going fantastic Columbia Law School conference on state sentencing (which is being blogged here), I will interupt all the federal Booker excitement with a number of very interesting state Blakely stories.
- From Arkansas, I have received a copy of a bill filled in the legisture denominated "An Act to Clarify That the Sentencing Guidelines of the State of Arkansas Are Entirely Voluntary; and for Other Purposes." As the title suggests, the Arkansas sentencing guidelines have long been understood to be voluntary, but this bill wants to leave nothing in doubt after Booker. Here is the concluding paragraph of the bill which can be downloaded below:
It is found and determined by the General Assembly of the State of Arkansas that the United States Supreme Court has held that the federal sentencing guidelines are unconstitutional; that the voluntary presumptive standards of the State of Arkansas may be challenged as unconstitutional; and that this act is immediately necessary in order to clarify that the sentencing guidelines are merely advisory.
- From Indiana, the blog INCourts has here an interesting report on a section of the state Chief Justice's State of the Judiciary address entitled, "Rebuilding the American Jury." As noted in the post, the Indiana Supreme Court has been sitting on two big Blakely cases since November, and thus INCourts has good reason to spend time reading Hoosier tea leaves.
- From New Jersey,it is now official that the Supreme Court of New Jersey will hear appeals from three major Appellate Division Apprendi and/or Blakely rulings. An expedited briefing schedule has been set and oral argument in the cases will be heard on March 1st, 2005. As detailed in this prior post, the state was eager for Supreme Court review because, according to its brief, "uncertainty regarding the effect, if any, of the Blakely opinion on [New Jersey's] ordinary term sentencing system has had a paralyzing effect on sentencing judges, defense attorneys, and prosecutors."
The 8th Circuit remands!!
In what I believe is the first consequential Booker circuit court ruling, the Eighth Circuit remanded a case for resentencing on Blakely/Booker grounds today in US v. Coffey, No. 04-2176 (8th Cir. Jan. 21, 2004) (available here). The brief discussion of Blakely/Booker in the Coffey opinion is a bit decaffeinated, but the decision is still important for suggesting that, at least in the Eighth Circuit, all preserved Blakely errors result in remands for resentencing. Here's the key passage (with the citations trimmed):
Finally, Coffey claims that he was sentenced in violation of his Sixth Amendment right to a jury trial, as recognized in Blakely. He argues that the district court impermissibly held him responsible for a higher drug quantity than the amount the jury attributed to him. Prior to sentencing, Coffey asserted that there was insufficient evidence to calculate any drug quantity against him. The district court overruled his objection and sentenced Coffey using an offense level applicable to 2.7 kilograms of crack, despite no jury finding in support of this amount.
Whether or not Blakely applied to the United States Sentencing Guidelines is no longer an open question: the Supreme Court has now held that it does. Booker holds the mandatory guidelines scheme employed by federal courts is unconstitutional. Instead, the Guidelines are now "effectively advisory," and defendants such as Coffey who have preserved the issue are entitled to new sentencing proceedings.[FN 5] We thus remand for resentencing in accordance with Booker.
[FN 5] We express no opinion on whether a sentence handed down under the mandatory Guidelines system is plainly erroneous, nor do we consider the outer limits of precisely what will preserve the issue.
So, what is "reasonable"?
The remedial majority's decision in Booker makes "reasonableness" the new standard of appellate review in all federal sentencing cases. Though I suspect we may get some guidance soon from circuit courts about what this standard means, it is fun now to reason through what the reasonable minds of reasonable people might reasonably think qualifies as reasonable. (Of course, until we hear from courts, there is good reason to keep reasonable speculations about reasonable understandings of reasonableness within reason.)
Interestingly, and perhaps unsurprisingly, as detailed the Second Circuit letter briefs available in this post, US Attorneys in some cases are asserting that "sentences within the Guidelines range should be upheld as reasonable, whereas sentences that deviate from the Guidelines should be presumptively unreasonable." Similarly, in a letter I was forwarded (and provide here) from the US Attorney for the WD of New York, there is a strong suggestion that concepts of reasonableness should be closely tied to guideline ranges: Download wdny_usa_letter_re_booker.pdf
But, according to an article I received from federal law clerk Laurie Kelleher and her colleagues, it would be improper to define reasonableness in this way given the holding of the Booker merits majority. In an article you can download below, Ms. Kelleher writes:
If the reasonableness standard proposed by Justice Breyer is interpreted to mean that reasonableness is still defined in light of the relevant Guideline range, then the system would remain one of mandatory ranges.... This result would be inconsistent with the constitutional requirements of Justice Steven's opinion, and therefore, Justice Breyer’s opinion cannot be read in this impermissible way.
Ms. Kelleher's article provides a wealth of additional important insights and suggestions for how to reason through what reasonableness now means.
Still more Booker praise
I noted here and here the many newspaper editorials and other commentators praising Booker. This noteworthy trend continues with laudatory pieces to be found today in the New York Times, the Denver Post and the Indianapolis Star.
And from legal commentators, today also brings pro-Booker sentiments from Professor Edward Lazarus in this terrific Findlaw piece, and from Professor Rory Little in a likewise terrific California Daily Journal article that can be downloaded here: Download booker_dj_op_ed_2005_january.rtf
Are the FSG still mandatory in child crime and sex offense cases?
The Feeney Amendment to the PROTECT Act was most well-known for its various general restrictions on departure authority. However, this 2003 statue also created a special separate provision of 18 USC 3553(b) — specifically 18 USC 3553(b)(2) (see highlighted changes here) — to provide an even more rigid departure standard for child crimes and sex offenses.
A crackerjack reader (who is a federal judicial law clerk) wrote to me to note that the Booker remedial majority never mentions 18 USC 3553(b)(2) — which distinctly mandates that judges follow the guidelines for child crimes and sex offenses — in its discussion of excising 18 USC 3553(b)(1) to make the guidelines advisory. Based on this fact, and other language in Justice Breyer's opinion, this reader suggests the federal guidelines are still mandatory (and must be subject to Blakely-ization for any upward enhancements) for all child crimes and sex offenses covered by 18 USC 3553(b)(2). The reader's full thoughtful argument on this matter is set out in a document which can be downloaded below.
Technically, because neither Booker or Fanfan involved a child crime or sex offense, I am not sure Booker in any way resolves the status of 18 USC 3553(b)(2). In turn, then, I am not sure what judges should do when sentencing a child crime or sex offense (perhaps run their own severability analysis guided by Booker). I am sure that this law clerk has spotlighted a problematic aspect (oversight?) in the Booker remedy opinion. Readers litigating or adjudicating child crimes and sex offenses should be sure to consider (and comment upon) the analysis here:
Reporting anecdotes on post-Booker sentencings
In yesterday's post entitled Anecdotes, data and the USSC's big challenge, I stressed the importance of making sentencing policy based on data rather than anecdote (which is one reason I keep urging Congress to take a deep breath to give the US Sentencing Commission a chance to assemble data and recommendations for federal sentencing in the post-Booker era). But thorough data collection and analysis takes time, and in the meantime there is still value in assembling some anecdotes.
As noted in this prior post, I have heard of some judges following the guidelines closely, some focusing more on punishment purposes in particular cases, and some talking of Blakely-izing after Booker. I encourage readers to report in the comments about post-Booker sentencings and the (varying?) approaches being adopted by district judges.
I can relay some anecdotal reports from local newspaper stories. Particularly noteworthy is this story from Texas detailing a decision by US District Judge Randy Crane to use his post-Booker discretion to extend the prison terms of three officials charged with accepting bribes. Significantly, as detailed in this post, I am not sure due process principles permit a post-Booker sentence increase based on pre-Booker conduct, but this issue will apparently need to be litigated in the days and week ahead.
January 20, 2005
The product of collaborative efforts
As detailed in this post from last night, attorney Alex Eisemann asked to use this space to solicit comments and suggestions as he raced to complete a rapid-fire letter brief for a Booker case in the Second Circuit. The final letter, now filed, can be downloaded below, and Alex asked that I post this note to accompany it:
Here is my response to the government's letters. Not a work of art but, considering the limited amount of time I had to draft it, pretty much made the points I felt necessary. I'd like to thank everyone who contributed ideas, citations and cut-and-paste-able discussions, which they'll recognize in some sections of the letter. If this process proved anything, aside from proving the generosity of others, it was the incredible power of collaborative work over the internet. With a touch of a button, I was able to tap into hundreds if not thousands of legal minds and experience to help put this together in a very short period of time.
One footnote: A courthouse insider tells me the Second Circuit's upcoming decision may be through a case argued last week, so all the help may have been primarily for the benefit of my client but perhaps all three of the pending cases will become part of the Second Circuit's decision. No matter what, I'm grateful for everyone's fine efforts, as will be my client.
Rumor from a federal prison
I was off-line most of the afternoon to attend a terrific meeting of the Ohio Sentencing Commission (in which Blakely/Booker was the topic of conversation). The meeting was amazing for many reasons, and later tonight I will have news and notes on various state Blakely fronts.
But, upon return to my office, I received a curious second-hand report that at least one federal prison initially "had banned all communications sent to prisoners re: Booker, and allegedly did so pursuant to a Bureau of Prisons policy." But then, according to the report I received, as a result of a follow-up call to the prison administrator, "the next day the prisoner received his Booker communications [and the prisoner] was told that the BOP issued a bulletin changing its position."
This report, which perhaps should only be given rumor status, is notable in part because, as detailed here and here, in December BOP had encouraged each of its 100-plus institutions to take appropriate steps to inform prisoners about the outcome in Booker and to make the opinion and other legal materials available. More generally, given the mixed and confusing message that Booker delivers, I am curious about both the prisoner and BOP reaction to the ruling.
Perhaps readers can use the comments to share any news on this front.
Anecdotes, data and the USSC's big challenge
I am hearing a range of post-Booker anecdotal reports from the federal sentencing front-lines. I have heard stories of some district judges following the guidelines closely, apparently taking an approach similar to Judge Cassell in Wilson (basics here, commentary here and here). I have also heard of a few judges focusing more on punishment purposes in particular cases, apparently taking an approach similar to Judge Adelman in Ranum (basics here, commentary here and here). And, as detailed here, I have even heard of some talk of Blakely-izing after Booker.
Notably, the anecdotal reports of on-the-ground developments are now appearing in the papers. This article details a federal sentencing from Hawai'i in which Chief US District Judge David Ezra focused on punishment purposes to justify a shorter prison term for a first offender who has undergone extensive sex-offender treatment after a conviction for downloading child pornography. Similarly, this story from New York details a sentencing decision by US District Judge Richard J. Arcara which seemed to put the focus, in another a non-violent first-offense case, on rehabilitation concerns.
Because newspapers will always focus on cases where defendants were "cut a break," an enormous challenge for the US Sentencing Commission and others will be to keep Congress from making policy by anecdote. In a huge federal system with thousands of sentencings every month, there will inevitably be stories of seemingly extreme decisions (both too harsh and too soft). But no definitive judgments should be made (or responsive legislation drafted) based on a few anecdotes. This is why I keep urging everyone, especially Congress, to take a deep breath to allow us all to see what the US Sentencing Commission data shows for the range of post-Booker cases.
I hope, as suggested in this discussion, that the USSC's data collection will particularly focus on the distinction between violent crimes committed by persons with a long criminal history and non-violent crimes committed by first offenders. My instinct is we will see a lot of guideline following in the former cases, and more variations in the latter cases. But only the data, and not a few anecdotes, will tell.
January 20, 2005 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (7) | TrackBack
Do federal sentencing judges have discretion to Blakely-ize?
Perhaps throwing an interesting curve into the developing debate over how to interpret and apply Booker, I have been hearing buzz about some federal district judges indicating that, following the holding of the Booker merits majority, they believe they should rely only on facts found by a jury or admitted by the defendant when calculating (now advisory) guideline ranges.
I am fairly certain that the holding of the Booker remedial majority does not require compliance with Blakely when calculating (now advisory) guideline ranges. But it is a distinct, and quite interesting, question whether district judges in exercising their post-Booker discretion are permitted to demand that all sentence-enhancing facts be found by a jury or admitted by the defendant.
Arguably, this issue might be thought to dovetail with the debate over how much weight to give to the (now advisory) sentencing guidelines. A judge inclined, like Judge Cassell in Wilson, to treat the guidelines as nearly mandatory might sensibly decide he or she should only rely on those facts found by a jury or admitted by the defendant; a judge inclined, like Judge Adelman in Ranum, to treat the guidelines as more advisory might sensibly decide he or she can and should more readily rely on facts not found by a jury or admitted by the defendant.
Signs of the (crowded prison) times
Marc Mauer, assistant director of The Sentencing Project and the author of "Race to Incarcerate," has this important op-ed which encourages Congress to use this Booker moment to examine more broadly "the unprecedented harshness of the policies adopted over the past 20 years, which have combined to produce a prison population unimaginable until recently." Significantly, key republican Senators on the Senate Judiciary Committee and AG nominee Alberto Gonzales suggested at recent confirmation hearings, as detailed here, that there may be some hope of moving from being only "tough on crime" to becoming more "smart on crime."
As noted previously here, many states in recent years have taken steps to cut back on harsh mandatory sentences and to expand treatment-centered alternatives to incarceration. And Republicans Governors, from Alabama to Maryland to Michigan to Texas, have been among the leading proponents of this notable modern shift from penal retribution toward rehabilitation. And, as detailed in this recent LA Times article, republican Governor Arnold Schwarzenegger just this month announced his plan for California's prisons to "emphasize rehabilitation, marking a shift away from an era when punishment was the overriding mission."
Of course, budget and prison overcrowding realities are a major catalyst for "smart on crime" reforms in the states. Indeed, newspaper articles today from Alabama to Vermont to Texas highlight that two decades of toughness may have (at least economically) reached a tipping point in many states. (As detailed in this post, the blog Grits for Breakfast has done a terrific job covering Texas prison overcrowding issues.) And, because tight budgets do not seem to impact federal criminal justice policy-making, I am not sure we should be too optimistic that Congress will follow the lead of the states in any post-Booker reforms.
Remember Blakely in the states
Not surprisingly, the decision in Booker has started a dramatic and uncertain new federal chapter in the Blakely story. But, as I have suggested previously, the federal story after Booker is really just a relatively minor (headline-grabbing) solar system within a vast Blakely universe. We should never forget that states handle over 90% of the criminal cases nationwide, and both Blakely and now Booker provide many more questions than answers for state actors and institutions.
And the state Blakely story keep chugging along after Booker. (A full account of all my pre-Booker posts on Blakely in the states can be found here.) For example, as documented in this article from Alaska, state legislatures are continuing to sort through possible modifications to conform their existing sentencing structures to Blakely. And, as documented in this article from California, state courts are continuing to sort out the applicability of Blakely to current cases.
Notably, I already count more than 50 additional on-line state court Blakely rulings just since Booker was handed down last week, the most of course coming from California (which now has over 350 Blakely ruling to date and also wins the award for having the first on-line state court opinion to mention Booker.)
More praise of judges judging
Continuing the parade of newspaper editorials praising Booker (many of the prior editorials are noted here), Howard Bashman has links here to a few more pieces praising the Supreme Court's decision which will allow judges to do more judging. I can also add to the growing list of pro-Booker editorials this piece from Montana.
Relatedly, continuing my praise of the judicious work done in Judge Adelman's Ranum opinion today, Ellen Podgor over at the White Collar Crime Prof Blog has this thoughtful post on the decision. She astutely concludes:
This [Ranum] decision provides a wonderful model for white collar decisions in the post-Booker world. It demonstrates that white collar offenders will not skate from jail time as a result of the Supreme Court's ruling. It also demonstrates how judicial discretion can offer reasoned analysis to fit the specific circumstances of a case.
January 19, 2005
A plea for help in the 2d Circuit
Attorney Alex Eisemann wrote to me this evening to report that "by sheer luck, I believe I'm one of the two cases that will be the vehicle for the Second Circuit's upcoming Booker decisions." (Background here) Alex explains:
The panel hearing my case this morning — 2/3 of whom heard the companion case yesterday and consisting of Judges Leval, Straub and Katzmann — ordered me to respond to the attached letter brief from the Government (served at 5pm and received by me at 9pm today) by noon tomorrow (Thursday). [This letter can be downloaded below.]
Assuming you find it appropriate, could you please post this ASAP and invite readers to comment and offer suggestions on it. Any comments and suggestions must be in by 11:30am Thursday, if I'm to incorporate them and meet the noon deadline. Please also ask people to be brief and to the point (unlike some of my own posts) and to write in "formal" style if possible, so I can cut and paste parts into my upcoming response.
I find posting this request appropriate — after all, last month, as detailed here and here, I used this space to help a victim's family member develop a brief to support a death sentence. Alex can be reached at firstname.lastname@example.org
The 2d Circuit prepares to decide
It took only a week to get some (wonderfully distinct) district court perspectives on Booker (details here and here), and now I am eagerly anticipating some circuit court action before long. Recall that we got Booker from the Seventh Circuit just over two weeks after Blakely, and within 4 weeks of Blakely we had a five-way circuit split. And Blakely was a state case!
Whetting our appetite, today I received an interesting order from the Second Circuit, which is available for downloading below. The order is just procedural, telling all the lawyers in the 200+ pending cases not to file supplemental papers (as had been previously ordered) in order to avoid "an unnecessary burden on counsel for the defendants and the Government." But the order also has this exciting teaser:
It is anticipated that a panel of this Court will expeditiously issue an opinion adjudicating the merits of a sentencing appeal in light of Booker and Fanfan.
Distinct views, but uniform brilliance (and results?)
After a careful read of Judge Adelman's Ranum opinion, I am struck not only by how distinctly the opinion interprets and applies Booker as compared to Judge Cassell's Wilson ruling, but also by how uniformly brilliant the analysis is in both opinions. In addition, as I will explain below, I think the decisions, though seemingly disparate as a matter of tone and procedure, in fact both serve Congressional goals of uniformity, honesty and proportionality in sentencing. Cf. Breyer opinion for Booker remedial majority at 21.
Before a discussion of the merits below, let me first complement both Judges Cassell and Adelman for their (speedy) efforts to provide guidance on the meaning of Booker (and also for alerting me to their rulings). What Booker really means for federal sentencing depends on how it is applied in practice, and the rulings in Wilson and Ranum both provide clear and cogent accounts of how two judges think Booker must be applied. As I suggested here, I suspect there will be a lot more analysis and insights for and from judges and litigants in the days ahead, and I sincerely believe we will best figure out the post-Booker world by having these discussions in an open, transparent and on-the-record way for all to see and debate.
On the merits, everyone should be focused first on the fact that Judge Cassell's sentence in Wilson treated the guidelines as nearly mandatory in a case which involved a violent crime committed by a person with a long criminal history (and, notably, the case apparently had no "Blakely facts" in dispute), while Judge Adelman's sentence in Ranum treated the guidelines as more advisory in a case which involved a non-violent crime committed by a first offender (and, notably, the case apparently did have some "Blakely facts" in dispute).
Many persons have rightfully distinguished how we should treat violent recidivists and non-violent first offenders at sentencing, and have also expressed concern about whether the federal guidelines do an adequate job in this regard. Notably, these persons include (1) Justice Kennedy in his potent speech to the ABA in 2003 assailing the overall severity of federal sentencing terms, (2) the ABA Commission doing work in Justice Kennedy's name, and (3) key republican Senators on the Senate Judiciary Committee and AG nominee Alberto Gonzales (as detailed here based on the recent confirmation hearings). To quote on this theme from a summary of the ABA's Kennedy Commission report: "Lengthy periods of incarceration should be reserved for offenders who pose the greatest danger to the community and who commit the most serious offenses, and alternatives to incarceration should be available for offenders who pose minimal risk to the community and appear likely to benefit from rehabilitation efforts."
In other words, achieving true substantive uniformity and proportionality in sentencing may call for Judge Cassell to follow the guidelines in Wilson and for Judge Adelman to depart from the guidelines in Ranum. (And, gosh, is there anything more refreshingly honest than seeing two capable judges have the opportunity to say and effectuate, on the record, what justice seems to demand in the case before them?) Or put another way, everyone should be very cautious before jumping to the conclusion that the results in Wilson and Ranum represent undue disparity. Only someone suffereing from, in Professor Marc Miller's terminology, sentencing equality pathology can quickly assert that Wilson and Ranum are obviously disparate in their ultimate results.
Finally, I am reminded of Judge Cassell's astute insight in Wilson that the "congressional view of how to structure [the] sentencing system will surely be informed by how judges respond to their newly-granted freedom under the 'advisory' Guidelines system." Based on what I have seen so far in Wilson and Ranum, Congress should be very impressed and proud of the work being done by district courts in the wake of Booker and pleased with the first small bits of advisory guidelines dtata. Indeed, I hope Representative Tom Feeney and every other member of Congress will read both Wilson and Ranum carefully before making any broad statements about whether federal judges can be trusted to sentence wisely and in good faith in the post-Booker environment.
Another (very different) view of Booker from a district court
Here we go again!! As I suspected (and suggested in posts here and here), Judge Cassell's Wilson ruling was not the last word, but only the first word on the look of the post-Booker federal sentencing world. A quite distinct perspective comes today from US District Judge Lynn Adelman in US v. Ranum, Case No. 04-CR-31 (D. Wisc. Jan 19, 2005).
In Ranum, which can be downloaded below, Judge Adelman writes 13 thoughtful pages to "explain how I understand Booker and why I sentenced defendant Ranum to a year and a day in prison." The entire opinion is rich with insights and powerful statements. For example, Judge Adelman writes:
Sentencing will be harder now than it was a few months ago. District courts cannot just add up figures and pick a number within a narrow range. Rather, they must consider all of the applicable factors, listen carefully to defense and government counsel, and sentence the person before them as an individual. Booker is not an invitation to do business as unusual.
And in a lengthy and key introductory passage, Judge Alderman documents the disagreement with Judge Cassell's approach in Wilson:
The directives of Booker and § 3553(a) make clear that courts may no longer uncritically apply the guidelines and, as one court suggested, "only depart . . . in unusual cases for clearly identified and persuasive reasons." United States v. Wilson, Case No. 2:03-CR-0082, 2005 WL 78552, at *1 (D. Utah Jan. 13, 2005). The approach espoused in Wilson is inconsistent with the holdings of the merits majority in Booker, rejecting mandatory guideline sentences based on judicial fact-finding, and the remedial majority in Booker, directing courts to consider all of the § 3353(a) factors, many of which the guidelines either reject or ignore. For example, under § 3553(a)(1) a sentencing court must consider the "history and characteristics of the defendant." But under the guidelines, courts are generally forbidden to consider the defendant’s age, U.S.S.G. § 5H1.1, his education and vocational skills, § 5H1.2, his mental and emotional condition, § 5H1.3, his physical condition including drug or alcohol dependence, § 5H1.4, his employment record, § 5H1.5, his family ties and responsibilities, § 5H1.6, his socio-economic status, § 5H1.10, his civic and military contributions, § 5H1.11, and his lack of guidance as a youth, § 5H1.12. The guidelines' prohibition of considering these factors cannot be squared with the § 3553(a)(1) requirement that the court evaluate the "history and characteristics" of the defendant. The only aspect of a defendant's history that the guidelines permit courts to consider is criminal history. Thus, in cases in which a defendant's history and character are positive, consideration of all of the § 3553(a) factors might call for a sentence outside the guideline range.
Further, § 3553(a)(2)(D) requires a sentencing court to evaluate the need to provide the defendant with education, training, treatment or medical care in the most effective manner. This directive might conflict with the guidelines, which in most cases offer only prison. See U.S.S.G. § 5C1.1 (describing limited circumstances in which court can impose sentence other than imprisonment). In some cases, a defendant’s educational, treatment or medical needs may be better served by a sentence which permits the offender to remain in the community.
In addition, § 3553(a)(7) directs courts to consider "the need to provide restitution to any victims of the offense." In many cases, imposing a sentence of no or only a short period of imprisonment will best accomplish this goal by allowing the defendant to work and pay back the victim. The guidelines do not account for this. In fact, the mandatory guideline regime forbid departures to facilitate restitution. United States v. Seacott, 15 F.3d 1380, 1388-89 (7th Cir. 1994).
Finally, in some cases the guidelines will clash with § 3553(a)’s primary directive: to "impose a sentence sufficient, but not greater than necessary to comply with the purposes" of sentencing.
In sum, in every case, courts must now consider all of the § 3553(a) factors, not just the guidelines. And where the guidelines conflict with other factors set forth in § 3553(a), courts will have to resolve the conflicts.
In a word, WOWSA!!
Still more collected Booker commentary
I collected much of last week's Booker commentary here and here, and because I may need to be off-line much of today, I thought I might usefully do another such collection of more recent posts on Booker:
- Engaging with the sentencing revolution, sort of
- The importance of counsel, and the challenges of judging it
- The critical, and still confusing, "prior conviction" exception
- Silent switches
- Taking stock of advisory guideline systems
- Ex post facto, due process and cases in the pipeline
In addition, yesterday I did a segment with Professor Al Alschuler covering Booker and related issues for the Chicago Public Radio show Odyssey, which can be accessed via the web here. The questions from the Odyssey host, as well as from callers, helped make this program, in my view, especially thoughtful and interesting.
Engaging with the sentencing revolution, sort of
As previously discussed by Orin Kerr in this terrific post, one of the most interesting facets of Justice Stevens' opinion for the merits majority in Booker is the express discussion of the impact of the modern sentencing reforms on the Court's constitutional jurisprudence. Discussing the "new trend in the legislative regulation of sentencing," Justice Stevens explains that "the Court was faced with the issue of preserving an ancient guarantee under a new set of circumstances:"
The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism but by the need to preserve Sixth Amendment substance.
I was pleased that this passage confirmed my belief since the Apprendi decision that the Supreme Court's new Sixth Amendment jurisprudence reflects a reaction to the revolution in sentencing policy and practice brought by modern statutory and guidelines reforms. See Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 67 Criminal Law Bulletin 627 (November-December 2001). Indeed, my recent article in the Winter 2005 issue of the ABA's Criminal Justice magazine explains the Blakely ruling in exactly these terms. (I am pleased that I can now provide that article, entitled "The Roots and Realities of Blakely," for downloading here: Download blakely_roots_for_aba.pdf.)
And yet, though I was pleased to see some engagement with the sentencing revolution, I was displeased that Justice Stevens' opinion fails to address or even acknowledge that historical approval in cases like Williams of lax procedural rights in a discretionary sentencing system was once expressly premised on the rehabilitative "medical model" of sentencing that dominated before modern reforms. As discussed in my post about what Blakely is really about and also in the ABA article available above and also in Judge Nancy Gertner's Mueffleman decision (available here), the modern sentencing reform movement largely reflects a general rejection of rehabilitation as a penal theory as sentencing is today predominantly about imposing punishment, not about devising a cure.
Thus, while the Booker merits majority is to be praised for its express discussion of the modern evolution of sentencing, a lot more could have been said on this topic. (Notably, as evidenced by his dissents in cases like McMillan and Watts, Justice Stevens himself seem ready to rethink various aspects of Williams, but he likely did not have five votes for broader dicta to that effect in Booker.) Moreover, because of the work of the Booker remedial majority, it appears that Justice Breyer has created a way for the federal sentencing system to still rely on an administrative system of sentencing justice.
The importance of counsel, and the challenges of judging it
As detailed in this Tony Mauro article at law.com, the Supreme Court "appeared sharply divided Tuesday over a Pennsylvania case [Rompilla v. Beard] that could set new minimum standards for effective assistance of counsel in death penalty cases." Though capital cases always make headlines, I think Dahlia Lithwick basically has it right when she explains in this Slate commentary that Rompilla "isn't all that significant, really, [because it] is just one of thousands of claims about inadequate trial lawyers that capital defendants put forward."
And yet, though the Rompilla case may not be exceptional, any elaboration on the meaning and application of ineffective assistance of counsel regarding sentencing representation is of great import in the wake of Blakely and Booker. I noted this point last week here in conjunction with the Supreme Court's cert. grant in Halbert v. Michigan, and I believe that these issues have now become even more important in light of the Supreme Court's creation of advisory guidelines through its ruling in Booker.
I have been thinking lately that advisory guidelines for sentencing judges in non-capital cases have a quality similar to the guidelines given to sentencing juries in capital cases. And we know from experience in capital cases that the quality of defense counsel can have a profound impact on ultimate sentencing outcomes, particularly with respect to the development and presentation of mitigating evidence about the defendant.
Similarly, I expect that, in the new federal advisory guidelines system, quality of defense counsel will have a profound impact on ultimate sentencing outcomes. Of course, as I detailed in an article a few years ago, From Lawlessness to Too Much Law? Exploring the Risk of Disparity From Differences in Defense Counsel under Guidelines Sentencing, 87 Iowa Law Review 435 (2002) (abstract here), quality of defense counsel surely has a profound impact on ultimate sentencing outcomes in a mandatory guidelines systems, too.
But the Booker move to advisory guidelines should make even more critical whether and how defense attorneys develop and present mitigating personal evidence about the defendant — evidence that the mandatory federal guidelines largely took off the table. Indeed, I think the work of defense counsel in presenting mitigating offender information will profoundly impact when and how often advisory guidelines are followed in the federal system. And, bringing us back to the issue in Rompilla, it will be interesting to see if any courts ultimately deem some federal defense counsel ineffective at sentencing if they do not develop and present mitigating offender information while representing defendants in the new federal sentencing world.
Booker internets resources and commentary
I have decided to use "internets," a term perhaps coined by President Bush, to describe collectively materials on traditional websites and on blogs. And the internets have a lot to offer of late on the Booker front:
- The website Watching Justice has this Booker page with links to a few newspaper editorials (more of which I linked here), and also links to various official comments about and resources on the decision.
- The November Coalition has this updated page of Booker/Blakely materials.
- FAMM appears to have updated its Booker materials available here.
- I have just discovered the Ninth Circuit Blog run by a group of top-notch federal defenders of the Ninth Circuit. This blog already has ten very detailed posts about Booker litigation issues which should be of special interest to defense attorneys. (The blog has also allowed me to "out" FPD Paul Rashkind as having a role in this blog which used to mock my Booker predictions.)
- Old favorites, the Blakely Blog and INCourts are back in action, with the former here doing a Tuesday review of federal Booker stories, and the latter here catching up on the Indiana state Blakely stories.
January 18, 2005
On the lighter side, sort of
You would not think a case about drug sentencing and a defendant with AIDS would make for light reading, but the Eleventh Circuit's decision last week in US v. Barfield, No. 03-14077 (11th Cir. Jan. 14, 2005), has a certain gallows humor quality. I am thankful to a reader for bringing it to my attention.
In Barfield, the defendant in December 1994 pled guilty to a crack cocaine offense and received, after the benefit of a downward departure because of her cooperation and HIV status, a sentence of 30 months' imprisonment. Then, in January 1995, the defendant managed to stay execution of her sentence by claiming (falsely) that she had only six months to live. Eight years later, a spurned boyfriend turned her in, and Barfield then asserted based on a variety of legal theories that she could not, after all this time, be incarcerated. As detailed in the 11th Circuit's Barfield decision, though the defendant may deserve an award for chutzpah, she did not prevail in her efforts to stay out of prison.
Now I am wondering if defendant Barfield might now try to seek resentencing based on Booker.
January 18, 2005 in Blakely Commentary and News, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Clemency denied for Beardslee
UPDATE: Donald Beardslee, according to this Reuters story, was executed by the state of California at 12:29am pacific time on January 19th, 2005.
As TalkLeft has detailed here and here, and as more fully detailed in this AP article, California Gov. Arnold Schwarzenegger and the US Supreme Court have "turned back a plea for mercy for a convicted murderer, clearing the way for California's first execution in nearly three years."
Here is a link to the Governor's official statement, which has a lot of substantive discussion of the arguments pressed in favor of clemency. The statement concludes with these paragraphs:
Nothing in Beardslee's application, supporting papers, or testimony on his behalf before the Board convinces me that he did not understand that he committed two grisly murders and that his decision to take those actions was wrong. Clemency is not designed to undo the considered judgment of the people in favor of the death penalty, but to prevent the miscarriage of justice.
The Board of Prison Terms unanimously recommended that I deny clemency to Beardslee. A copy of their recommendation is attached to this decision. After my own independent study and analysis, I agree with the Board.
Although I have given serious consideration to Beardslee's plea for mercy, I do not believe the evidence presented warrants the exercise of clemency in this case. For this reason, Donald J. Beardslee's application for clemency is denied.
For other recent posts on capital clemency developments and issues, see
- Indiana capital commutation and other capital news
- The capital story of clemency
- Sister Prejean's powerful perspective
The critical, and still confusing, "prior conviction" exception
I have written in many (pre-Booker) posts about the critical importance — and critical uncertainty — of the "prior conviction" exception to Apprendi/Blakely. For background, here are just a few of my major prior posts on this subject:
- The "prior conviction" exception to Blakely
- The next big Blakely issue: the prior conviction exception
- Juvenile convictions and the "prior conviction" exception
- Fascinating "prior conviction" case from Indiana
- See also the offense/offender distinction I champion in my Conceptualizing Blakely article.
Importantly, though the Booker merits majority did not speak directly to the issue, it did continue to articulate the "prior conviction" exception when stating (and reaffirming) the Apprendi/Blakely rule. Moreover, as detailed here, a case still pending before the Supreme Court, Shepard v. US, could allow the Court to address the "prior conviction" exception directly. But, after so many issues went unaddressed (or were poorly addressed) in Booker, I am not holding my breath that Shepard will shine a beacon of light to clarify the darkness that now surrounds the "prior conviction" exception.
Though the advisory guidelines remedy in Booker might suggest this issue is now less important, everyone should appreciate that (1) state courts continue to divide wildly on the application of the "prior conviction" exception when defendants make Blakely claims, and (2) it would be very difficult for Congress to build a new sentencing system without clarification of the viability and scope of this exception. (Recall that Justice Thomas in Apprendi suggested that he regreted his vote in the 5-4 decision that created this exception.)
Moreover, as documented in part by the DC Circuit's decision dated today in US v. Miller, 2005 U.S. App. LEXIS 862 (DC Cir. Jan. 18, 2005), these criminal history issues can get remarkably intricate even in seemingly simple settings. (Notably, though Miller was released and is dated Jan. 18, 2005, the DC Circuit's decision affirming the defendant's guideline sentence only discusses Booker as a "pending" case. The Miller ruling, then, is not just a day late and a Booker short, it is a full week late and a Booker short.)
January 18, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack
A few persons have written to urge additional commentary (by me and the media) on Justice Ginsburg's swing vote in Booker and the absence of a concurring opinion to defend her votes. Of course, in this Eureka post, I did spotlight the evidence that Justice Stevens may have once had a majority for his Blakely-ization remedy and that Justice Ginsburg was the likely late-day flip-flopper. And, in this potent LA Times commentary, Professor Alan Dershowitz had some particularly harsh words for Justice Ginsburg's failure to explain her votes. Nevertheless, I generally agree that further commentary and speculation about the thinking behind, and possible battle over, Justice Ginburg's votes is justified.
But, critically, if we are going to examine silent switches, we perhaps should start with an earlier case which, at the time, seemed to spare the federal sentencing guidelines from the reach of Apprendi. All close followers of the Apprendi line of decisions know that in Harris v. United States, 536 US 545 (2002), Justice Scalia broke ranks with the Apprendi/Blakely five in order to constitutionally approve judicial fact-finding for the enhancement of mandatory minimum sentences. And Justice Scalia provided no explanation for his switch in Harris, even though Justice Breyer, who is never silent in these cases, said in his Harris concurrence that he could not easily distinguish Apprendi from Harris "in terms of logic."
Taking stock of advisory guideline systems
With Booker making advisory guidelines a reality in the federal system, a careful examination of our modern experiences with advisory systems are in order. As detailed in this post, the Federal Sentencing Reporter will soon be publishing a timely article entitled on "Advisory Guidelines in the Post-Blakely Era," authored by the executive directors of two sentencing commissions involved in the development of advisory guideline system. Relatedly, Adam Liptak has this thoughtful article today in the New York Times examining the operation of advisory guideline systems in the states.
In addition, because I am about to do a Chicago public radio show with University of Chicago Professor Albert W. Alschuler, I was reminded that Professor Alschuler was among the first to forcefully advocate advisory guidelines as the right federal response to Blakely (the original draft of Al's article is available here). Reviewing that pre-Booker article this morning, which is To Sever or not to Sever? Why Blakely Requires Action by Congress, 17 Federal Sentencing Reporter 11 (Oct 2004), I was terrifically amused by this wonderfully ironic paragraph in its introduction:
This commentary proposes a sentencing system that courts could not implement without Congressional action — one in which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality. Id. at 11 (emphasis added).
Obviously, though Al might be exactly right about the value of advisory guidelines, he was apparently wrong, thanks to Justice Breyer and the remedial majority, that his proposed solution could not be implemented witout Congressional action.
Ex post facto, due process and cases in the pipeline
In this post and in my testimony in November to the US Sentencing Commission, I spotlighted ex post facto issues as a reason for Congress and the USSC to react cautiously to Booker. Because it seems unlikely that any "Booker fix" can be applied to cases currently in the pipeline, I continue to fear that any short-term legislative changes in coming weeks "risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices."
And yet, even before we see any legislative response to Booker, we should all be fully cognizant of the legal doctrines which may limit the immediate application of the "judicial fix" to Blakely that Justice Breyer has engineered through the Booker decision. As discussed by Peter Goldberger at White Collar Crim Prof Blog here and as noted by commentors here, there are strong due process arguments that, in Peter's words, "a post-Booker sentence for a crime committed prior to Jan. 12, 2005, cannot be higher than the top of the applicable guideline range ... [and thus, for] some time to come, post-Booker discretion must, as a matter of constitutional law, be a one-way ratchet favoring lower sentences."
Though I have not (yet) fully thought through the issue, I think Peter may be right that due process doctrines prevent judges from using their new post-Booker discretion to impose sentences higher than the guidelines in cases currently "in the pipeline." But I imagine there may be some, especially prosecutors, who do not agree with this due process/ex post analysis. I hope perhaps the comments to this post might be a forum for debating this very important issue concerning how the tens of thousands of cases in the federal sentencing pipeline can now be sentenced.
January 18, 2005 in Blakely in Legislatures, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17) | TrackBack
In praise of Booker
Howard Bashman at How Appealing has assembled here a collection of today's editorials and op-eds on Booker. A quick read of these pieces shows fairly consistent praise of the Booker outcome and the (competing?) notions that juries should have a role in sentencing fact-finding and that judges should have more discretion at sentencing.
Considering today's pieces in praise of Booker — as well as prior editorials that run consistently pro-Booker from papers in states as diverse as Colorado, Florida, Georgia, Kentucky, Iowa, Maryland, Massachusetts, Missouri, New York, Pennsylvania, Rhode Island, Texas, Utah, Wisconsin — highlights that the newspapers nationwide are strongly backing the decision and consistently urging Congress to give judges a chance to work within the new system Booker has created.
Another big week for sentencing drama?
With the issuance — finally!! — of Booker and Fanfan and all the responsive sentencing buzz, last week's sentencing developments were truly historic. (Some collected commentary on all that transpired is here and here.) And yet, I forecast no shortage of sentencing dramas in the week ahead:
- Following up Judge Paul Cassell's noteworthy work in Wilson (basics here, commentary here and here), I expect at least a few other judges will issue opinions this week setting forth views on the meaning and application of Booker.
- Though the inauguration is a focus for most folks inside the Beltway, I still expect we will soon hear something official from the US Sentencing Commission and/or Congress about Booker. Though I have in this post already given advice to Congress and the USSC, I hope both institutions will conduct public hearings so that various persons might share views about how best to move the federal sentencing system forward.
- With Booker now decided — and providing precious little elaboration on the meaning and limits of Blakely — I anticipate that state Blakely rulings will continue apace; we might even soon see major Blakely rulings from more than a few state supreme courts. (In this recent post, I suggested that the federal sentencing story after Booker is a relatively minor (headline-grabbing) solar system within a vast Blakely universe. This reality should be highlighted during the exciting state sentencing conference taking place at Columbia Law School at the end of this week.)
- As detailed here by CrimProf Blog, the US Supreme Court is scheduled to hear argument on Tuesday in two cases involving sentencing issues.
- The state of California in less than 24-hours is scheduled to execute Donald Beardslee unless Governor Schwarzenegger grants his plea for clemency or the Supreme Court takes up his last-ditch legal appeal. This article from the New York Times details the final efforts to halt Beardslee's execution, and this editorial from the Los Angeles Times asserts that Beardslee's case "demonstrates the caprice, unfairness and waste woven through California's death penalty."
January 17, 2005
A buzzing Booker blogsphere
I am back on-line after a long drive home from North Carolina, and I am pleased to find the blogsphere a buzz with Booker:
- Howard Bashman at How Appealing has Monday's round-up of newspaper articles and editorials on Booker linked here. (See also Potent Quotables for more of same.)
- Peter Henning at White Collar Crime Prof Blog has a post here suggesting that "in the public corruption area the effect of Booker may be increased sentences." (See also the article linked at Morning Booker insights.)
- Tom Lincoln at the PRACDL Blog has a post here providing all the basic highlights of Booker, as well as this post with the full text of 18 USC 3553(a) which Justice Breyer made the centerpiece of post-Booker sentencing. (See also links and pieces at Booker basics and more commentary.)
More collected Booker (and Wilson) commentary
I am about to hit the road to travel to home to Ohio from North Carolina, and thus I will have to be off-line the rest of the day. In this post before my trip to NC, I collected my first dozen substantive Booker posts (which now also have more than 200 substantial and insightful comments from readers). Below are some (topically organized) highlights of the substantive posts since then:
ABOUT THE BOOKER DECISION
- Booker basics and more commentary
- Eureka!! Tangible evidence of a flip-flop
- Copious commentary from SL&P's Booker Tonight
- Booker and provocation of Congress
- Severability as a Ouija Board
REACTING TO THE BOOKER DECISION
- Why Congress should go slow, and what the USSC should say
- Potent Quotables
- Report your Booker stories here
- Remembering the Blakely state stories
ABOUT JUDGE CASSELL'S WILSON DECISION
- What Wilson got wrong
- Understanding and appreciating Judge Cassell's Wilson opinion
- Judge Cassell proves his brilliance, who's next
- Judge Paul Cassell speaks first again!!
Morning Booker insights
There are a range of interesting Booker items this morning.
- In this Los Angeles Times commentary, Professor Alan Dershowitz discusses the Supreme Court Justices as "Prima Donnas in Robes" and has particularly harsh words for Justice Ginsburg's failure to explain her votes and for Chief Justice Rehnquist's failure to "to get individual justices to act as an institution."
- In today's Wall Street Journal, Gary Fields examines, in an article entitled "Ruling on Sentencing Guidelines May Also Affect Corporate Crime," what Booker might mean for the federal corporate sentencing guidelines. You need an on-line subscription to get the article here, but Peter Henning at the White Collar Crime Prof Blog has a terrific post here discussing the article and explaining why Booker's "effect on corporate prosecutions will be minimal, if non-existent, for at least three reasons."
In addition, an insightful reader has encouraged me to spotlight this article from the weekend out of New Orleans, which shows that more than a few judges may want to use their new discretion to impose sentences that are, in some cases, harsher than what the federal guidelines previously allowed. (Of course, whether due process will allow that to happen for crimes committed before the Booker ruling is one of the many complicated legal issues that will need to be sorted out in the weeks and months ahead.)
Interesting plans for figuring out Booker
Though I have spotlighted notable quotes about Booker from newspaper stories here, what caught my eye in this Denver Post article was a report on how US District Judge Edward Nottingham has decided to figure out post-Booker federal sentencing realities:
The judge said he would hold a hearing in which attorneys from a half-dozen such troubling cases would make oral arguments about how to proceed in the new world of criminal sentencing. "I've now decided I'm going to set them for consolidated oral argument," Nottingham said.
In addition to being intrigued by all the different possible suggestions that might be made at Judge Nottingham's consolidated oral argument, this account documents that judges will be sorting through Booker issues in a variety of ways. Some may act surprisingly fast like Judge Cassell (basics here, commentary here are here), while others may devise a much more deliberative process for charting a path in the post-Booker world.
January 16, 2005
In praise of advisory guidelines
A few months ago, I received for possible publication in the Federal Sentencing Reporter a terrific article about advisory guidelines by Kim Hunt, executive director of the DC Sentencing Commission, and Michael Connelly, executive director of the Wisconsin Sentencing Commission. At the time, we no longer had space in our final FSR Blakely issue, but I suggested to the authors that the piece could run in a subsequent issue.
With Booker now making advisory guidelines a reality in the federal system, this article on "Advisory Guidelines in the Post-Blakely Era" could not possibly be more timely. The authors have done a post-Booker update of the article, which is available for downloading below, and here is the opening paragraph:
With its rulings in Booker and Fanfan, the Supreme Court has redirected attention to the application of advisory sentencing guidelines. Advisory guidelines, operating in ten states, are sentencing guidelines that do not require a judge to impose a recommended sentence, but may require the judge to provide justification for imposing a different sentence. Although some commentators have questioned the efficacy of advisory systems in addressing sentencing disparity and predictability, this article will show that, properly constituted and overseen, these systems have produced results in many ways comparable to those of prescriptive sentencing systems, which themselves have not always achieved or sustained the ambitious goals they have set. The article concludes that, if done with an eye to the successes of states with advisory systems and the conditions necessary for those successes, the sentencing world of Booker and Fanfan can, in fact, accomplish the original objectives of the federal structured sentencing system.
In addition, the article ends with an important call for continued data-driven study and analysis of all sentencing systems:
It should be clear by this point that the authors view the paucity of reliable scientific evidence regarding the performance of all sentencing systems as a major obstacle to informed choice. It is incumbent on all sentencing commissions, legislatures, and independent researchers to address this problem through joint efforts at data sharing, analysis, and performance monitoring.
January 16, 2005 in Blakely Commentary and News, Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack
What Wilson has wrong
In a prior post here, I have detailed the reasons why Judge Cassell's path-breaking post-Booker decision in Wilson (available here) "merits far more praise than criticism." Though I believe, as I suggested here, that Wilson is a brilliant effort, many comments in prior posts have rightly spotlighted that Wilson is also a flawed effort. This post, drawing on some of the comments and my own reflections, sets forth possible criticisms of Wilson:
1. Consider the statute: To his credit, Judge Cassell considers the statutory parsimony mandate of 3553(a). See Wilson slip op. at 21-23; see also my parsimony post here. But another critical part of the statute, the requirement in 3553(a)(1) that a judge "shall consider ... the history and characteristics of the defendant," gets very short shrift in Judge Cassell's Wilson opinion. Other than a very brief account of Wilson's criminal history, id. at 29, Judge Cassell's opinion does not discuss in any way defendant Wilson's personal history or characteristics.
2. Consider the timing: Though Judge Cassell merits praise for providing immediate guidance for lawyers and defendants facing sentencings in his court, he also perhaps merits criticism for not giving the parties an initial opportunity to file post-Booker briefs before issuing his opinion. Judge Cassell did give the parties 10 days to file objections, but in many ways the die is cast. (Notably, Judge Cassell engaged with points raised in my parsimony post, see id. at 21-23; he might well have also engaged with arguments raised by counsel.) Though Judge Cassell was "reluctant to delay the sentencing," he still could have asked for letter briefs by Friday and come out with his ruling this Tuesday after the long weekend.
3. Consider the dicta: At various points, Judge Cassell says he would give the guidelines "heavy weight" and depart only in "unusual cases for clearly identified and persuasive reasons." Id. at 3, 25-26. But elsewhere he asserts the guidelines will be followed in "all but the most unusual cases," id. at 6, and that they "should be followed in all but the most exceptional cases." Id. at 25. Perhaps this is semantics, but the latter comments suggest an unduly rigid approach to departures (especially since, as detailed in Table 9 of this set of USSC official statistics, recent data reveal that judges in the district of Utah had departed from the mandatory guidelines in more than 22% of all cases).
4. Consider the purposes IN CONTEXT: Judge Cassell explains why the US Sentencing Commission is well positioned to consider sentencing purposes such as just punishment and deterrence from a system-wide perspective, id. at 10-19, but only a sentencing judge can assess these purposes from a case-specific perspective. At page 14 of Wilson, Judge Cassell recognizes that crime control purposes implicate both "general deterrence" and "specific deterrence" and then says it is "difficult for an individual judge to make such determinations." Though it surely is difficult for a judge to assess general deterrence, it is truly impossible for anyone but a judge to make a refined assessment of "specific deterrence" because this requires a focus on the history and characteristics of a particular defendant (see point 1 above).
More generally, after giving 20 pages to a wide-ranging discussion of purposes in general, id. at 6-26, Judge Cassell's opinion has only a single boiler-plate sentence asserting that his consideration of purposes for defendant Wilson prompts him to follow the guidelines. Id. at 31-32. The conclusory application of purposes to defendant Wilson reflects again Judge Cassell's systemic failure to seriously engage with the history and characteristics of the defendant throughout his Wilson ruling.
Though I could nitpick some other aspects of Wilson, I will stop here in part because I do not want all my commentary to unduly suggest that this one opinion should become a de facto precedent for other district judges. I believe each individual judge has a constitutional obligation to reach her or his own judgments about the meaning and application of Booker and 18 USC 3553(a), which now both govern federal sentencing. And, as I highlighted previously here, the new federal sentencing world will be built opinion by opinion, and Wilson should be seen as only the first (brilliant and flawed) brick.
Why Congress should go slow, and what the USSC should say
In the Potent Quotables assembled here, US District Judge Charles Kornmann astutely suggests that "Congress should give [advisory guidelines] a chance. If it doesn't work, if they find that judges are going off the map, then [Congress] can always revisit it." This sentiment perfectly channels why I have been urging that everyone take a deep breath in response to Booker, especially Congress.
Congress will always have the power to modify the federal sentencing system at any time in the future. Until we have some opportunity to assess and analyze what Booker really means for the judges and lawyers working "on the ground," it will be very hard for Congress to be confident that any immediate legislative "fix" will make the federal system better than what Booker has now created.
Moreover, as I stressed in my testimony in November to the US Sentencing Commission, I fear that any major structural modification of the guidelines by Congress in the coming weeks "risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices." I am particularly concerned about ex post facto litigation headaches if "the Bowman fix" (aka topless guidelines) or mandatory minimum sentencing provisions are enacted and seek to be immediately applied.
For these reasons and others, I highly encourage the US Sentencing Commission to stress to Congress that any quick fixes risk making a confused and uncertain federal sentencing world even more confused and uncertain. (And, as we saw in the post-Blakely, pre-Booker period, confusion and uncertainty may undermine the goals of sentencing reform more than any particular set of sentencing rules.)
In addition, I encourage the USSC to pick a date certain — perhaps June 24, 2005, the one-year anniversary of the Blakely decision — and tell Congress that it will produce a report with data analysis and legislative recommendations for moving the federal sentencing system forward. Through such a report, the USSC can assess what has happened post-Blakely, what will happen post-Booker, and combine critical data with all the USSC has learned from its recently produced 15-year report, a report which should play a central role in any discussion of possible legislative responses to Booker. (The full USSC report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)
In the course of linking here to all of last week's newspaper stories about Booker, I suggested it would be interesting to assemble in one place all the quotes from judges that appear in the articles. One of my terrific students did me two better: she assembled quotes not only from judges, but also from prosecutors and defense attorneys, addressing last week's remarkable developments.
I have provided below for downloading three documents with all these quotes. Each set, and especially all three collectively, make for very interesting reading. As before, I encourage readers to use the comments to spotlight quotes that seem especially notable.
UPDATE: How Appealing provides a set of the Sunday articles and editorial about the Booker ruling here, although I did not see any quotes that jumped off the page of the articles linked there.