Sentencing Law and Policy

Ohio Blakely cases argued today

As previously detailed in this post, the Ohio Supreme Court this morning is hearing argument in two big Blakely cases.  The oral arguments can be watched on-line here at the Ohio Supreme Court's website, and there is also this helpful official description of the cases at this link.  In addition, today this AP article discusses the cases.

Will Atkins get the benefit of Atkins?

Earlier this year, the New York Times ran this article providing a remarkable account of how and why Daryl Atkins — who was the defendant at the center of the Supreme Court's ruling in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibits executing mentally retarded offenders — may now be scoring high enough on IQ tests to permit his execution to go forward.  Thanks to Howard at How Appealing, this post provides a collection of more recent articles discussing the special jury trial which started this week with the sole purpose of deciding whether or not Daryl Atkins is mentally retarded and thus constitutionally exempt from the death penalty.

This lengthy article from the Washington Post provides a thoughtful account of Daryl Atkins' life and crime, as well as his long legal saga and current legal realities.  Especially interesting is not only the article's account of the evidence each side now will present to the jury to support or dispute Atkins' claim of mental retardation, but also the basic fact that to spare Atkins' life the "defense must prove retardation 'by a preponderance of the evidence.'"

Potent comments on preserving Booker error

The different ways that different circuits are treating Booker plain error remains highly consequential and highly visible as cases continue to move through the pipeline. But today's concurrence by the Eighth Circuit's Judge Heaney in US v. Coffey, No. 04-2176 (8th Cir. July 25, 2005) (available here) is a reminder of the different ways that different circuits are deciding whether a Booker error has been preserved. 

A number of circuits are applying liberal standards when considering whether a Booker error has been preserved, but the Eighth Circuit in its en banc Pirani ruling adopted a very strict rule for when a Booker error has been preserved.  In Coffey, the Eighth Circuit applied this strict standard to reject a Booker claim, which prompted Judge Heaney to complain about the Circuit's adopted standard with this sharp comment:

Coffey challenged his mandatory guidelines sentence in district court for essentially the same reason that the Booker court found the guidelines unconstitutional, yet that objection was not specific enough to preserve his Booker claim.  Instead, the Pirani majority required Coffey to either cite a case — Blakely — that was not yet law, or rely on Apprendi or the Sixth Amendment, which had been held by our court en banc to have no application to the guidelines.  Where could such an absurd result stand?  Justice Scalia might reply, “Only in Wonderland.”  Booker, 125 S. Ct. at 793 (Scalia, J., dissenting).

Monday morning around the sentencing blogsphere

To start your work week, here are a bunch of interesting sentencing items around the blogsphere:

• Dan Markel at PrawfsBlawg has this post entitled "Democrats for Castration?" which explores the rhetoric coming from Alabama, discussed here and here, as officials discuss new sex offender legislation.

• Ellen Podgor at White Collar Crime Prof Blog here provides an interesting op-ed about the sentencing of Bernie Ebbers and media coverage of white collar sentencing.

• Yuangchung Lee at the Second Circuit Blog has interesting posts here and here about interesting sentencing decisions issued by the Second Circuit last week.  Especially noteworthy is the discussion of the Circuit's reversal of a departure in US v. Brady, No. 04-0729 (2d Cir. July 22, 2005) (available here), which concludes with this insight about the place of departures post-Booker:

[I]n overturning the district court's departure decision [despite] compelling mitigating evidence, perhaps the Court has inadvertently ... consigned the § 5H1.3 departure to the dustbin of history altogether.  After this case, and in light of Booker, what district judge in his or her right mind would bother with justifying such a sentence by resort to the traditional downward departure mode of analysis, which is both difficult to satisfy and easily overturned on appeal, when the same outcome could be justified as simply a "non-Guidelines" sentence under Section 3553(a)?  The latter approach is far simpler, more appeal-proof, and, yes, more reflective of our basic intuitions about fairness and justice.

Week in review

The week ahead has the exciting sentencing events of oral argument in Ohio's Blakely cases and a Booker panel at the ACS conference, and I suspect the buzzing over the nomination of John Roberts will continue at a fever pitch.  (My major posts exploring how a Justice Roberts might impact the Supreme Court's criminal sentencing jurisprudence are all linked here, and a related article is discussed here.)   And the week just completed, as detailed below, included other noteworthy sentencing developments.

LEGISLATIVE DEVELOPMENTS AND COMMENTARY

• Alabama House seeks mandatory castration(!) for certain sex offenders
• Sex offender panic continues in Alabama
• Romney's "foolproof" death penalty looking foolish in Massachusetts
• More interesting criticism of HR 1528
• Insightful commentary on the Sensenbrenner flap
• Two more editorials assailing Sensenbrenner's letters

BOOKER DEVELOPMENTS AND COMMENTARY

• Updated post-Booker data from the USSC
• More updated post-Booker data from the USSC
• Trying to parse the USSC's latest data
• Seventh Circuit give short shrift to Booker ex post facto claim
• Fifth Circuit finds "Fanfan error" not harmless
• Points for creativity?

OTHER CIRCUIT COURT DEVELOPMENTS AND COMMENTARY

• Interesting opinion on "sentencing factor manipulation"
• Second Circuit notes "tension" between supervised release scheme and Blakely
• Fourth Circuit provides spirited defense of the prior conviction exception
• Fifth Circuit vacates death sentence
• Criminal history and Shepard's impact
• Sentencing and searching in the Seventh Circuit

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• "Getting out early" through a federal drug program
• Collateral consequences guide
• An overview of Blakely in the states

Gearing up for big Ohio Blakely cases

Adding to the recent state Blakely excitements are the arguments before the Ohio Supreme Court this coming Tuesday in two big Blakely cases, State v. Foster, 2004-1568, and State v. Quinones, 2004-1771.  I have done many prior posts on the status of Blakely in Ohio: Ohio's sentencing laws and practices make the state something of a Blakely bellwether (background here and here), and there have been a number of interesting twists and turns, as detailed here and here, as these Blakely issues slowly work their way up to the Ohio Supreme Court.

Thanks to helpful readers, I can report not only that these oral arguments can be watched on-line here at the Ohio Supreme Court's website, but also that there is now this helpful official description of the cases at this link.  For additional background, available for download in this post is an amicus brief filed in one the cases, which provides a wonderful primer on Ohio's sentencing structure and on the potentially profound impact of Blakely in the Buckeye State.

Criminal justice sessions at ACS conference

Who says nothing happens in DC in the summer?  Besides all the SCOTUS activity, there are a bunch of great conferences in the coming weeks.  I have noted before the 2005 Conference of the National Association of Sentencing Commissions, taking place in DC on August 7-9; as this schedule shows, the NASC Conference will have lots of Blakely and Booker talk.

But if you are in DC and cannot wait until August, this coming week the American Constitution Society for Law and Policy will host its 2005 National Convention from July, 28-31.  The theme is “The Constitution in the 21st Century,” and, as detailed in this schedule, the speakers are an amazing group and a number of plenary and breakout sessions will explore important criminal justice issues.  Particularly catching my eye are breakout sessions on "Racial Inequality in the Criminal Justice System" and "Can Federalism Be Progressive?" and a plenary session with a bunch of federal judges discussing "Sentencing After Booker and Blakely: How Much Has Changed?"  (It might have been especially interesting if some state judges were on this final panel, but the roster of federal judges slated to speak is still very impressive.)

If I did not have plans to be at a beach house, I would be sure to head to DC for this event.  But I definitely plan to check out the main plenary sessions on-line: the folks at ACS report that the they plan to post video of these session here on their website.