August 6, 2005
An engaging (but incomplete) habeas debate
Over at Legal Affairs' Debate Club, they have concluded this great debate on "How Important is Habeas?" between Ted Frank, Resident Fellow and Director of the American Enterprise Institute Liability Project, and David Bruck, Clinical Professor of Law and Director of the Virginia Capital Case Clearinghouse at Washington and Lee University. As I expected, the habeas debate was fascinating, though it also was incomplete. Despite occasional efforts by both debaters to raise a broader array of concerns, the debate more often than not centered around capital cases and issues of innocence. Because the status, importance and future of habeas concerns a whole lot more than just capital cases and wrongful convictions, I might encourage Legal Affairs to give this debate another week, but with instructions that the debaters cannot discuss the death penalty or wrongful convictions.
Relatedly, the LA Times in this article and TalkLeft here note that the Conference of Chief Justices this week passed overwhelmingly a resolution urging the US Senate not to the Streamlined Procedures Act, which aims to restrict habeas appeals. Here are a few quotes of note from the article discussing the resolution:
The [state supreme court] justices urged additional study and analysis of the 1996 [habeas] law "and the causes of unwarranted delay, if any" before Congress passed any new legislation on the subject.
The "interpretation and effect" of the 1996 law has "only recently begun to be settled," the resolution noted. Making new and far-reaching changes in the law could spawn years of further litigation, the state judges noted.
"The ostensible purpose [of these bills] is to expedite matters," but that could "easily be subverted … by another decade of litigation," [Pennsylvania's chief justice Ralph] Cappy said.
Atkins does not get the benefit of Atkins
As detailed in this prior post, a special jury trial was convened to adjudicate whether Daryl Atkins — 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 — is mentally retarded and thus constitutionally exempt from having his death sentence carried out. On Friday, as detailed in this Washington Post article, "after nearly 13 hours of deliberation, a York County Circuit Court jury concluded that Daryl Renard Atkins, 27, who was condemned to death for kidnapping, robbing and shooting a young airman in 1996, is not legally mentally retarded and is therefore eligible for execution."
The Post article provides lots of legal and factual background on Atkins the man and Atkins the doctrine. The article closes by noting that, under Virginia law, Atkins was required to "prove mental retardation by a preponderance of the evidence." I suspect on appeal Atkins' attorneys may argue that Virginia's decision to require the defendant to prove his mental retardation in order to escape the death penalty violates the Constitution's Due Process Clause.
Additional news coverage of the jury's verdict is available here, courtesy of How Appealing.
August 5, 2005
Revised draft of Reconceptualizing Sentencing
As noted in this post, I had the honor giving the Keynote Address at The University of Chicago Legal Forum's 19th Annual Symposium last November. I now have received the final page proofs for my follow-up article, entitled "Reconceptualizing Sentencing," which is slated for publication in the next issue of the University of Chicago Legal Forum. I previously set out the article's introduction here, and the full revised draft is available via SSRN). Below I provide a few paragraphs from the conclusion:
The modern revolution of sentencing laws and practices marks one of the most dynamic and important law reform stories in recent American legal history. But, as detailed in this Article, one hallmark of this revolution has been a conceptual shallowness that has negatively impacted the work of all the institutions that have had a hand in the revolution. Placed in proper historical and conceptual context, we can better see that the U.S. Supreme Court's recent work in Blakely and Booker is just the latest dramatic chapter in a lengthy, dynamic, and conceptually confused story about the modern evolution of sentencing rules and practices.
A chief lesson to be drawn from Blakely and Booker and the dramas that have surrounded these decisions, is that policymakers, courts, and academics are long overdue to take up the task of reconceptualizing modern sentencing. Attentiveness to sentencing concepts such as limiting retributivism, parsimony and the offense/offender distinction perhaps could help begin the overall — and overdue — project of broadly reconceptualizing modern sentencing reforms. But, in the wake of the turmoil and uncertainty produced by Blakely and Booker, the specifics of the project of reconceptualizing modern sentencing are less important than just an appreciation that the project must begin.
And now the rest of the (Ellis) story from the 11th Circuit
In this post last week, I noted the Eleventh Circuit's issuance of an opaque unpublished opinion in US v. Ellis, which remanded for resentencing in an intriguing case involving a former Georgia district attorney convicted of lying to federal agents about an improper sexual relationship with a drug suspect. Today, in US v. Ellis, No. 05-10150 (11th Cir. Aug. 5, 2005) (available here), we get the rest of the story.
In short form, the 11th Circuit in Ellis says that the district court erred in upward departing based on guideline section 5K2.7, which encourages a departure if the defendant's conduct "resulted in a significant disruption of a governmental function." The problem, explains the circuit court, is that "Ellis's false statement to the FBI did not actually disrupt any governmental function."
Other WorldCom sentencings
As detailed in this Reuters report, the sentencings of "five former WorldCom officials who all cooperated with prosecutors probing financial wrongdoing at the company" have gotten underway today. Today, Betty Vinson, a former midlevel manager at WorldCom Inc., was sentenced by US District Judge Barbara Jones to five months in prison and five months home confinement for participating in WorldCom fraud. (White-collar sentencing aficionados might realize this is the same sentence that a certain Martha received.)
UPDATE: This news update now reports that "another former WorldCom official, accountant Troy Normand, was sentenced to three years of probation by the same judge." The White Collar Crime Prof Blog has comments on these sentences here and here.
Important new paper on appeal waivers
Thanks to Larry Solum, I see that Nancy J. King and Michael O'Neill have now made available on SSRN their important and ground-breaking work on appeal waivers in the federal sentencing system. The piece is Entitled "Appeal Waivers and the Future of Sentencing Policy" and is slated to appear in a forthcoming issue of the Duke Law Journal. You can access the paper and read the abstract at this link, and here is a taste from the introduction:
This article examines one potential limitation of appellate review as a means of regulating sentencing: clauses in plea agreements by which defendants waive their rights to appellate and postconviction review of sentencing errors.
For well over a decade anecdotal evidence has suggested that appeal waivers have become increasingly frequent in federal cases. Scholars and litigants disagree about what is waived, by whom, at what price, and how often. In every circuit litigation challenging the enforcement of appeal waivers has raised conflicting claims about their drawbacks and benefits. Recent decisions embracing broad appeal waivers have continued to provoke criticism from commentators. And the Supreme Court has yet to rule on their validity. Yet despite this sustained controversy, in the seventeen-year history of the federal sentencing guidelines, no empirical examination of sentencing appeal waivers in federal cases has ever been conducted. This study was undertaken in order to present a snapshot of the use and impact of appeal waivers in cases sentenced under the federal sentencing guidelines in the hope that the findings will prompt further research and better inform evolving sentencing policy....
In brief, our most important findings demonstrate the following: The rate at which plea-based sentences are appealed has declined somewhat over the period between the adoption of sentencing appeal waivers in the early to mid-1990s and 2003. In nearly two-thirds of the cases settled by plea agreement in our sample, the defendant waived his right to review. The frequency of waiver varies substantially among the circuits, and among districts within circuits. Immigration cases in our sample were more likely to contain waivers than drug trafficking cases, and both were more likely to contain waivers than firearms cases. It was uncommon for the United States to waive its rights to appeal; usually only the defendant waived his rights to review. The government appears to provide some sentencing concessions more frequently to those defendants who sign waivers than to defendants who do not, including "C" pleas, downward departures, safety valve credits, and a variety of stipulations. Many defendants who waive their rights to review obtain clauses in their agreements that limit their exposure to unexpected negative results at sentencing.
Our preliminary study also confirms some concerns raised by critics of appeal waivers. Some defendants in our study appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review. Three-quarters of the defendants in our sample who waived appeal also waived collateral review, and of these, fewer than one-third preserved the right to raise a claim of ineffective assistance. Waivers have been enforced to bar a variety of claims, including claims of ineffective assistance at sentencing, and assertions of constitutional violations under Blakely and Booker. Increased use of stipulations combined with no review increases the risk that sentences not in compliance with the law can proliferate without scrutiny. The uneven practice of trading sentencing concessions for waivers among cases and courts also suggests that waivers are undercutting efforts to advance consistency in federal sentencing.
As Larry likes to say, download it while its hot! Also, be sure to check out my blog coverage of appeal waivers post-Booker, in posts here and here, where I develop the idea that appeal waivers are perhaps invalid on public policy grounds because they violate of the appellate review provisions of the Sentencing Reform Act.
The blogsphere (or is it blogosphere?) has contributed notable follow-ups to some recent sentencing stories:
- Continuing an active and insightful discussion of the constitutionality of sex offender residency restrictions, Gideon at a Public Defender has this extended post and Will Baude at Crescat adds more thoughts here.
- Steve Sady at The Ninth Circuit Blog has this extended analysis of the Ninth Circuit's recent Dupas ruling on Booker ex post facto and burden of proof issues. (I discussed Dupas here).
August 4, 2005
Judge Pryor urging sentencing reforms in Alabama
As detailed in this newspaper article from The Mobile Register, Eleventh Circuit Judge William Pryor in a speech earlier this week to the Southern Legislative Conference, said that "sentencing practices in many states have grown unfair and bulged prison populations over the last two decades." Earlier this year Judge Pryor, who served as Alabama's Attorney General before his appointment(s) to the bench, also gave a very pro-reform speech as the Keynote speaker at the Columbia Law Review's terrific symposium "Sentencing: What's at Stake for the States?" (background here; Pryor's keynote address appears at Lessons of a Sentencing Reformer from the Deep South, 105 Colum. L. Rev. 943 (May 2005).)
Here are some interesting passages from the Register article:
"If sentencing reform has been urgently needed anywhere, it's in Alabama," [Pryor] said. "Crisis is the only word that could fairly be used to describe the condition in my state."... Pryor ticked off statistics familiar to those who have studied the state's corrections system. Between 1930 and 1980, he said, Alabama's prison population held fairly steady at about 5,000 inmates. That number doubled by 1990 and increased to 23,000 by 2003.
In an interview after his speech, Pryor said other states have enjoyed great success at reducing overcrowded prisons by reforming their sentencing structures. Now that he is a judge, he said it is not for him to say when or how the state should proceed. But he told the conference delegates during his address that while different "stakeholders" distrusted each other, "I could not find a defender of the status quo."
Martha agrees(?) to three more weeks of home confinement
Martha Stewart is going to spend three extra weeks subject to home confinement, though the details of exactly why and how this came to pass are sketchy. Here are parts of the report from this Chicago Tribune article:
Lawyers for Martha Stewart Wednesday confirmed that the domestic doyenne has agreed to extend her home confinement until Aug. 31. The move comes after published reports raised the specter that Stewart violated the rules of her sentence with an impromptu visit to an upstate yoga center and unauthorized use of an all-terrain vehicle on the grounds of her Bedford, N.Y., home....
Chris Stanton, chief federal probation officer for the Southern District of New York, said Wednesday that an extension of home confinement could be implemented by federal authorities if there were minor violations of agreed upon conditions that "are not serious enough to warrant a full revocation of the supervised release."
Perhaps folks more familiar with federal practice can use the comments to help me figure out whether Martha got the same treatment that a less prominent convict likely would have received. Of course, without more details, it is hard to determine whether Martha got a break by not being revoked, or suffered uniquely because her high profile precluded the feds from overlooking a minor transgression.
Whatever the reality, I find it interesting that the statement by Martha's lawyer Walter Dellinger speaks of Martha agreeing to an extension of the terms of her home confinement. I wonder what the government was threatening in order to secure this agreement.
Judge Roberts on capital punishment
Thanks to this post at TalkLeft, I have just seen this Washington Post article by Charles Lane from earlier this week discussing how "the substitution of Roberts for Justice Sandra Day O'Connor could make a difference on the death penalty." The piece provides effective background on both O'Connor and Roberts on capital punishment matters, and it also reprints passages from Roberts' 2003 confirmation hearing for his seat on the DC Circuit in which he discussed death penalty issues with Senator Russ Feingold.
On this issue, like many others, Judge Roberts has a stealth quality. It will be interesting to see if death penalty issues — or other sentencing issues for that matter — play a significant role in Judge Roberts' confirmation hearings next month. In the meantime, I have linked below some of my recent coverage of related SCOTUS capital sentencing issues:
- Is Judge Roberts personally against capital punishment?
- Will O'Connor's replacement shift capital jurisprudence?
- Considering O'Connor's capital sentencing legacy
- The impact of SCOTUS's heightened scrutiny in capital cases
August 3, 2005
Great blog debate over residency restrictions
A wonderful blogsphere debate has developed over the constitutionality of sex offender residency restrictions (which, regular readers know, was the subject of major recent rulings by the Eighth Circuit and the Iowa Supreme Court). Lior Strahilevitz kicked off the debate with this post at PrawfsBlawg, which prompted this response from Will Baude at Crescat, which led to this reply from Lior. Be sure to read the comments, too, since they enhance the debate greatly.
Since my constitutional expertise does not go much beyond the sentencing field, I am disinclined to weigh in on the merits of the debate. But I am inclined to highlight how this exchange amplifies my recent points in this guest-post at PrawfsBlawg that blogs can help fill a scholarly gap created by the modern realities of traditional law reviews.
Ninth Circuit rejects ex post/due process limit on applying Booker remedy
The Ninth Circuit today in US v. Dupas, No. 04-50055 (9th Cir. Aug. 3, 2005) (available here) rejected the defendant's claim that "the retroactivity principles of the Fifth Amendment's Due Process Clause preclude the retroactive application of the remedial holding of" Booker. The Dupas ruling provides thoughtful treatment of the issue in the course of explaining why the defendant's "argument suffers from three fatal flaws."
As detailed in posts here and here and elsewhere, I have repeatedly questioned whether due process/ex post facto principles may provide a ceiling on increasing a post-Booker sentence based on pre-Booker conduct, though I think the only strong claim arises if/when defendant gets a higher sentence post-Booker than he could have legally received pre-Booker. I do not believe Dupas directly addresses this issue (though the First Circuit has in Lata discussed here), but the broad language in Dupa suggests that increased post-Booker sentences will be considered constitutionally sound.
Also of great post-Booker import is a footnote in Dupas which rejects a claim for the application of the proof standard of beyond a reasonable doubt at sentencing: "One of [the defendant's] arguments — that sentencing facts must be proved to the court beyond a reasonable doubt — is foreclosed by Ameline. In Ameline, we explained that the district court must continue to apply the burdens of proof set forth in United States v. Howard, 894 F.2d 1085, 1089-90 (9th Cir. 1990). 409 F.3d at 1085-86."
I will be interested to see what the folks at the Ninth Circuit Blog think about Dupas.
Recent Alaska Blakely decisions
An interested reader in Alaska sent me a very interesting report on four recent Alaska Court of Appeals opinions concerning Blakely that have been issued in the last few weeks. Here are portions of the report:
In Haag v. State, Op.No. 1996 (Alaska App. July 22, 2005) (available here), the applied plain-error analysis based on the defendant's failure to raise a Blakely claim at trial, and found that Haag had satisfied the plain-error standard. In remanding for resentencing, the Haag court stated that the issue of whether it would be permissible for the trial court to hold a jury trial on the disputed aggravating factor could be litigated in the trial court. (The court of appeals' statement that this is an unresolved question is significant in that several trial courts have issued sweeping rulings that Alaska's whole presumptive sentencing scheme was unconstitutional and that there was no way it could be rendered constitutional by jury trials on aggravators, because the statutory scheme didn't provide for it.)
In Peltola v. State, Op.No. 1994 (Alaska App., July 22, 2005) (available here), the court of appeals held that a defendant who conceded the aggravating factors at a post-Blakely sentencing hearing had no viable Blakely claim on appeal. Some language suggests the court may ultimately adopt the argument that once the jury finds one Blakely aggravator, that opens up the defendant to the maximum sentence at which point the judge can consider other traditional factors under a preponderance standard.
In Edmonds v. State, Op.No. 1998 (Alaska App., July 29, 2005) (available here), the court of appeals generally accepted the argument that Blakely did not apply to consecutive sentencing decisions, though the court reserved judgment on whether one common-law sentencing rule that the Alaska Supreme Court adopted years ago could potentially be a basis for applying Blakely to some consecutive sentencing decisions.
In Milligrock v. State, Op.No. 1999 (Alaska App. July 29, 2005) (available here), the court appears to implicitly take the position that Blakely error is not structural, going with a harmless or plain-error analysis, and the court ruled that prior criminal history aggravators that are based solely on the fact of a prior conviction are exempt from Blakely, and thus upheld two of Milligrock's aggravating factors. They found no plain error with respect to a third.
It is clear that the court of appeals is aware of the need to provide some guidance to trial courts and has a bunch of Blakely cases in the pipeline.... The court of appeals has greater significance in Alaska's statutory scheme because you only have an appeal as of right to the court of appeals, and their jurisdiction is limited exclusively to criminal cases. Thus they are de facto the court of last resort for most criminal matters in Alaska, although the Alaska Supreme Court will undoubtedly take discretionary review on a few of the bigger Blakely issues, just to have their say in the matter and finalize a few basic parameters. Unfortunately, they tend to take two to three times as long as the court of appeals does to issue opinions.
August 2, 2005
Summary of NJ Blakely rulings
I am still working my way through the New Jersey Supreme Court's application of Blakely and Booker in its three big cases released this morning (basics here); my initial reaction is that the decisions are thoughtful and dynamic additions to the list, assembled in this prior post, of the major Blakely rulings from other state supreme courts. And though I am sure all fellow Blakely addicts will read the NJ decisions in full, below I have provided for others a brief summary of the decisions prepared by the New Jersey Commission to Review Criminal Sentencing.
Eighth Circuit keeping the Booker pipeline interesting
Though I have long given up on keeping up with all the sentencing action in Eighth Circuit, today on the circuit's official opinion page I noticed a number of sentencing decisions with separate concurrences that speak to various Booker pipeline issues. The most noteworthy of this bunch seems to be Judge Hansen's concurrence discussing cases interpreting the fourth prong of the plain error test in US v. Betterton, No. 04-2151 (8th Cir. Aug. 2, 2005) (available here). The opinion of Judge Hansen, as well as the other continuous and copious sentencing work being done by the Eighth Circuit on a daily basis, is another reminder that the Booker pipeline is still being cleared out (and remains interesting) more than six months after the Supreme Court's decision.
SCOTUS is out of touch
So says Stuart Taylor, Jr. in this interesting piece from The Atlantic Monthly (hat tip Howard). The main theme of Taylor's piece is captured by its subtitle: "The Supreme Court's greatest failing is not ideological bias — it's the justices' increasingly tenuous grasp of how the real world works." The piece's opening paragraph spotlights that the current members of the Supreme Court lack experience in many legal and political arenas, and Taylor rights notes, as I have in prior posts, the limited trial court experience and criminal law experience among the current Justices. Also, Taylor's essay includes this effective paragraph summarizing the mess that SCOTUS has made through its Apprendi-Blakely-Booker sentencing jurisprudence:
In a string of decisions since 2000 the Court has thrown the criminal-justice system into utter confusion by repeatedly changing the rules on the roles of judges and juries in sentencing, while providing minimal guidance on how the new rules should be implemented. In response to the rulings, thousands of current inmates have requested re-sentencing, to the consternation of federal trial and appellate judges, who are all over the lot on how to handle these requests. (The judges also have major differences of opinion on how much weight they should now give sentencing guidelines in new cases.) We'll be hearing more about this confusion — it's a clear recipe for an onslaught of additional appeals down the road, which will further tax our already overburdened criminal-justice system.
UPDATE: A helpful reader pointed me to this interesting column picking up the same themes about the Supreme Court being too cloistered. The author suggests that Justices be brought "home to the towns where they grew up or worked or raised their families. Let's keep them in our midst so they can live the lives of average Americans and stay close to our hopes and fears and daily struggles."
New Jersey applies Blakely (and Booker?)
As promised, the Supreme Court of New Jersey this morning issued its decisions in three big Blakely cases: State v. Natale, No. A-82/83-04 (N.J. Aug. 2, 2005) (available here), State v. Abdullah, No. A-73-04 (N.J. Aug. 2, 2005) (available here), and State v. Franklin, No. A-64-04 (N.J. Aug. 2, 2005) (available here). Collectively, all three opinions run more than 100 pages and appear to cover too many issues to effectively summarize (though, helpfully, the opinions each start with an official summary).
In short form, it appears that the New Jersey Supreme Court has essentially applied both Blakely and Booker: the Court finds that Blakely applies to New Jersey's sentencing scheme, but then decides it should remove the offending "presumptive term" provision of NJ Criminal Code. Here is the official summary of the holding in Natale:
A sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction violates defendant's Sixth Amendment jury trial guarantee. The penal code's presumptive terms are eliminated. Judges will sentence defendants within the statutory range for the offense after weighing the aggravating and mitigating factors.
Once I have a chance to digest these opinions, I hope to provide some commentary. In the meantime, I hope those working in New Jersey will use the comments to help enhance everyone's understanding of what this exactly means for sentencing in the real Apprendi-land.
August 1, 2005
Sixth Circuit ruling shows importance of burden of proof
I have not carped about the importance of the burden of proof at sentencing for quite some time — in part because the federal circuits seem quite content post-Booker to continue to embrace the preponderance standard, even though I think good arguments can be made for a higher proof standard. (For prior extended discussion of this issue, see posts here and here and here.) But a decision today by the Sixth Circuit in US v. Gardner, No. 04-1161 (6th Cir. Aug. 1, 2005) (available here), serves as a useful reminder of the import and impact of proof standards even if judges are to be sentencing factfinders.
In Gardner, the district court imposed a significant "drug-quantity enhancement based upon the nearly $16,000 in cash found in Gardner's pickup truck, which the court determined was the proceeds from selling 598.74 grams of crack cocaine." Gardner objected to this enhancement, claiming that the money was unrelated to his cocaine dealing, but the district court reasonded:
if you just look at the . . . presentence report, all the facts and circumstances in that report lead up to a rational conclusion by a preponderance of the evidence — circumstantial though it may be — that [Gardner] got that money by selling crack cocaine.... And as far as the [money coming from other sources], without evidence of that, as to the money coming from that sale, [Gardner's] mere statement of it, it's hard to believe.... [T]here are a lot of statements floating around out there, but where is the proof?
On appeal, the Sixth Circuit approved the district court's factfinding and drug-quantity enhancement; it cited "the evidence suggesting that the money found in Gardner's pickup truck came from the sale of crack cocaine and the lack of any evidence to support Gardner's claim that it was actually from the sale of other items."
In short, it seems that the defendant received a significant sentence enhancement — by my calculations, over five additional years under the guidelines — because the defendant could not himself prove the source of the cash in his truck. I am thus reminded yet again (as I was with this case from the Seventh Circuit last month) of Justice Scalia's expressed concern in Blakely about a defendant seeing "his maximum potential sentence balloon ... based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong."
Interesting start to the work week around the blogsphere
A quick late-afternoon tour of blogs has led me to a large number of sentencing-related items that merit noting and linking:
- White Collar Crim Prof Blog discusses the upcoming sentencings in high-profile white-collar cases involving Tyco defendants in state court and WorldCom defendants in federal court.
- The Supreme Court Nomination Blog here discusses John Roberts DC Circuit opinion in one noteworthy federal sentencing case. My own series of posts exploring how a Justice Roberts might impact the Supreme Court's criminal sentencing jurisprudence are all linked here.
- Grits for Breakfast thoughtfully examines at length here the challenges ex-offenders face finding employment.
- TalkLeft in this post takes a quick look at the private prison industry.
- Crim Prof Blog notes here an interesting new article on SSRN discussing Blakely and Crawford by Prof. Stephanos Bibas.
The yo-yo fun of limited Booker remands
Today the Seventh Circuit decided to publish its disposition in US v. Askew, No. 04-2539 (7th Cir. July 20, 2005), published (Aug. 1, 2005) (available here), which discusses exactly when a district court's statement satisfies the circuit's plain error Booker standard after a limited Paladino remand. The decision in Askew is not especially significant legally, but I cannot help but be amused by the appellate yo-yo in this case resulting from the limited remand approach adopted in the Seventh Circuit in Paladino (and also by the Second, Ninth and DC Circuits).