August 20, 2005
Hands off habeas
Posts from TalkLeft and Gideon spotlight this recent Washington Post editorial assailing the habeas corpus restrictions moving through Congress in the proposed Streamlined Procedures Act. The Post editorial, which has the great title that I have borrowed for this post, stresses the recent resolution from the Conference of Chief Justices urging the US Senate not to move forward with new habeas restrictions.
Below I have assembled some recent posts on this important topic:
- An engaging (but incomplete) habeas debate
- Terrific habeas debate over at Debate Club this week
- Senate hearings on new habeas restrictions
- House hearing on death penalty and habeas bills
UPDATE: A couple of Sunday morning papers have thorough and thoughtful discussions of habeas issues and the Streamlined Procedures Act: this article from the Louisville Courier-Journal provides a Kentucky and Indiana prespective on these matters; this article from the Contra Costa Times provides a California perspective.
More state views on juvenile adjudications and the prior conviction exception
Responding to this post about the recent Harris ruling from Oregon, which concluded that juvenile adjudications do not come within the "prior conviction" exception to the Apprendi/Blakely rule, a helpful Ohio reader informed me of a recent intermediate court ruling from Ohio on this issue. The ruling in Ohio v. Deters, No. C-010645 (Ohio 1st App. Aug. 5, 2005)(available here), ultimately holds that juvenile adjudications do come within the "prior conviction" exception. Along the way, the court provides this understated account of the state of the law on this issue:
In the wake of Blakely, several other Ohio appellate districts have allowed juvenile adjudications to be considered as a factor when enhancing a sentence. And several other jurisdictions outside of Ohio have also allowed juvenile adjudications as a sentencing factor under Apprendi or Blakely. Still others have rejected similar arguments. This split will one day have to be reconciled.
August 19, 2005
Is the Fifth Circuit hesitant to deem a guideline sentence unreasonable?
As a thoughtful follow-up to this post on all the Fifth Circuit's Booker work yesterday, Tom Kirkendall at Houston's Clear Thinkers rightly asks in this post "But what about Jamie Olis?" As Tom notes in his post, the Olis appeal was heard by the Fifth Circuit back in February, and now more than half a year later we still have no word on whether Olis' severe 24-year sentence is unreasonable under Booker as greater than necessary to comply with the purposes of punishment.
Though I believe a lot of matters beyond sentencing issues were raised in the Olis appeal, I cannot help but speculate that part of the delay may be hesitation on the part of the Fifth Circuit to declare a sentence within the guidelines unreasonable. Though I believe a few sentences outside the guidelines have been deemed unreasonable on appeal after Booker, I do not believe there has yet been a within-guideline sentence declared unreasonable. But especially given that top dog Bernie Ebbers "only" got 25 years and that the Enron Nigerian barge defendants received below guideline sentences, the Olis sentence seems even more out-of-wack.
To quote Tom's clear thinking: "The Fifth Circuit has an opportunity to begin redeeming its reputation in business cases in the Olis appeal, but justice delayed is often justice denied. Here's hoping that a decision in the Olis appeal is forthcoming any day now."
Debating sex offender sentencing
This post earlier this week on new sex offender proposals touched off an interesting blogosphere debate with Gideon at a Public Defender and with Tom at Confutatis Maledictis. And now Ken at Crim Law has joined to discussion with this thoughtful post.
I think all these posts, and many comments on each of the blogs, do a fine job developing a range of competing issues as the sex offender panic rages on in the media and in statehouses. (For another example, see this story about Kentucky's Lieutenant Governor urging consideration of castration.) Indeed, it is a testament to both the blogosphere and the modern politics of crime that we are seeing far more thoughtful and nuanced discussion and debate of these sex offender issues from bloggers than from politicians.
Reports on recent state Blakely action
The press this morning provides some helpful accounts of the major Blakely ruling that came from state supreme courts yesterday:
- This article from Oregon discusses the Harris case on the use of juvenile convictions at sentencing (details here).
- This article from Minnesota discusses the rulings on the impact of Blakely on guidelines cases in that state (details here).
August 18, 2005
Fifth Circuit clearing Booker pipeline
I joked in this post about the First and Eighth Circuits being busy sentencing bees, but the Fifth Circuit today has surely set some sort of record. As revealed on this opinion page, the Fifth Circuit today released an enormous number of unpublished criminal dispositions — by my very rough count, perhaps over 150 rulings — and it appears that many (most? all?) are decisions rejecting Booker claims of various sorts. I do not recall ever seeing so many dispositions from a circuit in one day, and I have to think some sort of official or unofficial coordination resulted in this massive release of opinions at one time.
Needless to say, I will have to rely on readers to report on anything substantively noteworthy in all these unpublished dispositions from the Fifth Circuit. In the meantime, I can point to the interesting and noteworthy published disposition in US v. Betancourt, No. 03-41590 (5th Cir. Aug 17, 2005) (available here). As well linked by How Appealing here, Betancourt is getting press coverage because the Fifth Circuit upheld a forfeiture order requiring the defendant to relinquish his part of $5.5 million in lottery winnings because he bought the lucky ticket with drug proceeds. And while that part of the ruling makes headlines, the guidelines part of the Betancourt decision is also of interest as another example of sentencing outcomes determined by guestimates of drug quantities involved in the offense.
UPDATE: A helpful reader shared this information about the Fifth Circuit's copious work:
All those Fifth Circuit cases seem just to be the product of one of the court's periodic conference calendars. If you're curious how the conference calendar works, it was described by one of the judges in Jerry E. Smith, Foreword, 25 Tex. Tech L. Rev. 255 (1994). Former Chief Judge Politz described the conference calendar in a bit less detail in Graves v. Hampton, 1 F.3d 315, 317 (5th Cir. 1993).
Minnesota Supreme Court finishes up some important Blakely work
Continuing a big state supreme court day (after this work on prior convictions from Oregon), today the Minnesota Supreme Court handed down two important Blakely rulings: State v. Shattuck, No. C6-03-362 (Minn. Aug 18, 2005) (available here) and State v. Houston, No. A-04-324 (Minn. Aug 18, 2005) (available here). Here is a helpful (and very quick) summary I received from a helpful reporter of the news: "The MN Supreme Court (in Shattuck) applies Blakely, rejects the Booker remedy, says that this defendant (and maybe all of them on direct appeal?) gets the presumptive sentence, and (in Houston) holds that Blakely announced a new rule."
Interestingly, it took the Minnesota Supreme Court a full eight months to figure out the remedy in Shattuck (the details on the court's initial ruling are here), and that ruling generates a partial dissent. Once I have a chance to review these decisions more carefully, I hope to add some commentary on these noteworthy Blakely rulings from a leading guideline state. In the meantime, perhaps readers can get started on analysis via the comments.
Oregon Supreme Court rules juvenile adjudications do not come within "prior conviction" exception
Today, in Oregon v. Harris, No. S51600 (Or. Aug. 18, 2005) (available here), the Oregon Supreme Court issued a thoughtful opinion addressing "the use of prior juvenile delinquency adjudications to increase sentences for adult felony convictions under the Oregon Felony Sentencing Guidelines (guidelines)." An opening paragraph provides highlights of the arguments and the holding:
[D]efendant first argues generally that, because juvenile adjudications in Oregon are accomplished without jury trials, any subsequent reliance upon those adjudications to increase a defendant's criminal sentence violates the jury trial guarantee of the Sixth Amendment to the United States Constitution. Alternatively, defendant argues that, in any event, the trial court unconstitutionally used the fact of his past juvenile record to impose an increased criminal sentence in his particular case. Defendant's first argument is not well-taken. As to his second argument, however, we hold that, under Apprendi v. New Jersey, 530 US 466 (2000), the manner in which the trial court used defendant's juvenile adjudication to increase his sentence amounted to an error that violated the Sixth Amendment. As a result, we vacate defendant's sentence and remand this case for resentencing.
This major ruling deepens the split in lower state and federal courts on whether juvenile adjudications fall within the "prior conviction" exception to the Apprendi/Blakely rule (see also this post from INCourts about Ryle, a pending Indiana case on point). Consequently, this Harris ruling reinforces my belief that the validity and scope of the "prior conviction" exception is the most pressing and important post-Blakely issue needing immediate Supreme Court attention.
Significant New Jersey ruling on implementing Atkins
With great thanks to Howard for this tip, I see that a New Jersey appellate court has issued a very significant ruling concerning the procedures for assessing a capital defendant's claim of mental retardation. As discussed in helpful detail in this AP report, in New Jersey v. Jimenez, No. A-3737-04T2 (NJ App. Aug. 17, 2005) (available here), the court held that prosecutors seeking the death penalty must prove a defendant is not mentally retarded beyond a resonable doubt.
The Jimenez ruling runs (including a concurrence) a total of 67 thoughtful pages, includes an extended section on "The Effect of Apprendi, Ring, Blakely, and Booker," and ultimately rests its holding on state constitutional law grounds. Here is a key passage from the main opinion:
Although a lack of retardation would not constitute a threshold consideration in every case (or indeed, in most cases), when a defendant's mental status has been placed in issue, as here, we find a clear right on the part of a defendant to insist that a jury determine whether he is mentally retarded and thus whether that threshold to the imposition of a death sentence can be met, or whether he is barred from execution.
In re Winship, 397 U.S. 358 (1970), together with Ring, requires as a matter of due process, that the absence of retardation be established by the State beyond a reasonable doubt.
The thrust of the holding in Jimenez is also well summarized at the end of Judge Fisher's concurring opinion:
As a result of the uniqueness and irrevocability of the death penalty, those facts that permit the State to take the life of the accused may be resolved only by a process that requires the State to prove to a jury, beyond a reasonable doubt, that the accused is not mentally retarded.
Additional local press coverage of this important ruling can be accessed here and here. One of these articles quotes the leading expert in this field, Professor Jim Ellis, as stating that of the "more than two dozen states that now have a law or court ruling dictating procedures for Atkins cases, New Mexico is the only other one that requires the prosecution to disprove mental retardation."
A busy sentencing day for the First Circuit
The First Circuit played the role of busy sentencing bee on Wednesday with the issuance of a large group of opinions on Booker and related topics. (Regular readers know that the busy bee role is usually filled by the Eighth Circuit, and that court on Wednesday did issue an interesting opinion concerning the definition of "violent felony" for purposes of the armed career criminal act in US v. Johnson, No. 04-1839 (8th Cir. Aug. 17, 2005) (available here).)
Helpfully, the folks over at Appellate Law & Practice have summaries and links to all the First Circuit action in reviews of cases concerning a plea colloquy, Booker plain error here and here, a Booker remand and Booker and Shepard arguments. For real Booker fanatics, I think the First Circuit's plain error discussions in US v. Guzman, No. 04-1888 (1st Cir. Aug. 17, 2005) (available here), and US v. Estevez, No. 03-1496 (1st Cir. Aug. 17, 2005) (available here), are worth a look (especially because Guzman has Judge Selya in fine linguistic form).
August 17, 2005
More on Roberts and capital punishment
Over at FindLaw, Elaine Cassel has this commentary exploring the impact that a Justice Roberts could have on the Supreme Court's death penalty jurisprudence. I find the tone of the piece quite disconcerting: the chief goal seems to be to bash Roberts even though his record on the death penalty is virtually non-existent. (This Washington Post article by Charles Lane from earlier this month provided a much more balanced review of these issues). Nevertheless, the FindLaw piece does spotlight a range of capital issues that could garner the Supreme Court's time and attention in coming terms.
I have discussed Roberts and the Supreme Court's capital punishment work in a number of prior posts, some of which are linked below:
- Stevens, Roberts, Gonzales and the death penalty
- Roberts, the cert pool, and sentencing jurisprudence
- 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
More politicians participating in sex offender panic
A few weeks ago, I noted here that the on-going social panic over sex offenders is finding expression in new "get-tough" sex offender legislation and proposals emerging at federal, state and local levels. This week, California Governor Arnold Schwarzenegger is just the most high-profile politician jumping on this "tough-on-crime" bandwagon:
- From California, this article details that Schwarzenegger "plans a full-court press to garner support" for two sex-offender bills, one which calls for "tens of thousands of California sex offenders [to] be forced to wear electronic tracking devices for the rest of their lives" and another "which also would boost punishment for a wide range of sex offenses."
- From New Hampshire, this article details that "attention generated by several child abductions in other states" has led Governor John Lynch to ask "the attorney general to draft legislation to toughen sentencing and monitoring of sexual predators."
- From New York, this article details that a state assemblyman has "announced a six-point plan to monitor people convicted of sex crimes and the formation of a five-member task force charged with studying enhancements to his monitoring plan, dubbed the Systematic Tracking of Pedophiles, or STOP, Initiative."
All of these articles, and many of the other recent stories of new sex offender laws and proposals archived here, reinforce my often-stated concerns about criminal justice policy being unduly driven by headline-making anecdotes of horrible individual cases (even in other states) rather than by refined data-driven policy analysis. (In this astute post on the California bills, TalkLeft comments that "the surest way to tell a politician is in trouble is when all of a sudden he or she jumps on the 'get tough on criminals' bandwagon.")
Interestingly, some of the articles linked above note the potential high cost of proposals like lifetime GPS monitoring of sex offenders. As has been true in other "tough-on-crime" cycles, economic realities will likely serve as the only brake on these sorts of politically-driven "get tough" sex offender initiatives.
UPDATE: Thanks to this thoughtful post by Gideon, I see that my interest in refined data-driven policy analysis has subject me to some unkind words in this post from Tom at Confutatis Maledictis. Tom suggests I need "a foray out of the ivory tower," but his post, much like a lot of the rhetoric coming from many politicians these days, falls prey to the same sort of anecdote-driven assumptions without addressing deeper realities.
Tom claims that "it has been empirically demonstrated that [sex] offenders are the least amenable to rehabilitation and the most likely to re-offend," and he then cites to two recent high-profile cases to support this broad assertion. But a comprehensive sentencing commission report on these issues from Tom's home state of Virginia spotlights a far more nuanced reality because not all sex offenders are created equal. The data show that the reoffense and rehabilitation story for a small group of high-risk offenders is disconcerting, but for other offenders the reality is much more encouraging. (This article, entitled "New hope for sex offender treatment," from the American Psychological Association discusses these issues effectively.)
Consider, for example, this recent Washington State Study, reporting that "sex offenders re-offend at lower rates than those convicted of other felonies. After five years, 15% of sex offenders return to prison for new offenses compared to 43% of offenders convicted of property crimes." Also consider this data from the Texas Department of Health State Services which reports not only lower sex offender recidivsm rates, but also that "research and clinical reports have begun to demonstrate that a number of treatment methods are effective in modifying some forms of sexual deviance." The data in this area are subject to many assessments, but my chief fear is that politicians are motivated more by polling data than by reoffense and rehabilitation data when they develop the latest "tough-on-crime" campaign.
Tom suggest I want to "prevent the people from protecting themselves and their children," but that could not be farther from the truth. Rather my goal is to push the public dialogue toward sound data-driven analysis so that we get effective policy reforms rather than hollow rhetoric and cost-ineffective proposals that only distract from doing the real, challenging work required for effective sentencing and corrections policy-making. I think that "the hard working people who just want to ensure their kids' safety" deserve nothing less.
ANOTHER UPDATE: Tom at Confutatis Maledictis has added a thoughtful addendum to his original post which articulates effectively the view that, because of the potential harms of sex offenses, he would rather risk significantly over-punishing some sex offenders than risk additional crimes. I agree with a lot of the sentiments expressed in Tom's addendum, though I fear the tone and approach reflected in Tom's original post fosters an environment in which, as reported here by Gideon, private citizens feel emboldened to take matters into their own hands by "slaying and dismembering a convicted sex offender."
Morning tour around the blogosphere
More than a few sentencing-related item around the blogosphere caught my eye this morning:
- Lyle Denniston over at SCOTUSblog has this informative post discussing the state of challenges to state felon disenfranchisement laws, which notes that the "deepening controversy over denial of voting rights to those convicted of serious crimes -- an issue that has split the Circuit Courts in recent years -- is back at the Supreme Court."
- TalkLeft has this interesting report on a Massachusetts drug case starting to get national attention because an 17-year-old honor student is facing a two-year mandatory prison sentence for a relatively minor marijuana offense.
- The Second Circuit Blog and the Sixth Circuit Blog and the Ninth Circuit Blog all have a series of important recent posts on various sentencing-related topics.
August 16, 2005
Interesting dissenting discussion of Blakely retroactivity
A consistently helpful reader has pointed me to interesting comments concerning Blakely's retroactivity in a recent dissent from the Ninth Circuit's refusal to rehear, en banc, a panel decision in Bockting v. Bayer that Crawford is entitled to retroactive application. Authored by Judge O'Scannlain and joined by eight other active judges, this dissent (available here) complained that Blakely is far more fundamental and important to accuracy concerns than Crawford, and yet Blakely was recently held by the Ninth Circuit not to apply retroactively:
Crawford's rule does less to decrease the chance of an inaccurate conviction than many rules that have been held not to apply retroactively. Most recently, in Schardt v. Payne, 2005 U.S. App. LEXIS 13569 (9th Cir. 2005), we refused to give retroactive effect to Blakely v. Washington, 124 S. Ct. 2531 (2004), which invalidated state sentencing guidelines that increased a defendant's sentence based on facts found by a judge by a mere preponderance of the evidence. The application of a mere preponderance standard instead of the reasonable-doubt standard required by Blakely surely increases the likelihood of inaccurate criminal punishment more than the admission of evidence under the Roberts test did. [FOOTNOTE 2] Cf. Ivan V. v. City of New York, 407 U.S. 203, 204 (1972) (per curiam) ("[T]he reasonable-doubt standard is a prime instrument for reducing the risk of convictions resting on factual error." (quoting In re Winship, 397 U.S. 358, 363-64 (1970)); id. at 205 ("[T]he major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect."). If even the standard-of-proof aspect of Blakely does not satisfy the Teague test, I do not see how Crawford can do so.
[FOOTNOTE 2] Of course, Blakely relates to the accuracy of sentences, not underlying convictions. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir. 2002) (relying, in part, on that difference in holding Apprendi not to apply retroactively). I do not see how the difference can be material, though, when the point of Blakely and the entire line of jurisprudence stemming from Apprendi is precisely that sentencing factors must be treated as elements of a crime when they increase the defendant's maximum sentence. Moreover, the Supreme Court has not distinguished between sentences and convictions when applying Teague; rather, it has implied that a watershed rule could be retroactive under Teague if it "seriously diminish[ed] the likelihood of obtaining an accurate determination in [a] sentencing proceeding." Graham v. Collins, 506 U.S. 461 (1993) (first alteration in original) (internal quotation marks omitted).
Race, mandatories, discretion and activism in Arizona
As detailed in this news report, a recent criminal case from Arizona has all the ingredients of a modern sentencing drama. The state case involves judicial charges of race-based exercise of prosecutorial discretion and prosecutorial charges of judicial activism, with all the action pivoting around the application of a harsh mandatory minimum sentencing term. Here are the basics:
The Maricopa County Attorney's Office singled out a poor, black Mesa man for prosecution in a Paradise Valley home invasion but ignored others involved in the crime who were white or affluent, a judge has found.
In a ruling issued Friday, Maricopa County Superior Court Judge Warren Granville said the county attorney’s "craven exercise of its discretion" in prosecuting 20-year-old Patrick Ivey made his mandatory minimum sentence of seven years in prison "excessive and unfair." ...
Barnett Lotstein, a county attorney spokesman, defended his agency's action and said Granville is displaying "judicial activism at its worst." "The judge obviously disagrees with the harshness of the sentence," Lotstein said Monday. "But we don't believe his comments were predicated on any facts and we will be taking exception to his ruling."
I have not been able to find Judge Granville's ruling on the web; perhaps a reader can help me locate what sounds like a noteworthy ruling. Beyond the factual intrigue, the case also sounds legally interesting because, according to the press report, "the judge invoked a special provision of Arizona law that will allow Ivey to petition the state Board of Clemency for a lighter sentence after 90 days in prison."
Ninth Circuit amends notable footnote on sentencing procedure
Among a whole bunch of criminal dispositions by the 9th Circuit today is an important order and amended opinion in US v. Dupas, No. 04-50055 (9th Cir. Aug. 3, 2005), amended (Aug. 16, 2005) (available here). The principle holding of Dupas, which I first discussed here and the Ninth Circuit Blog covers here, concerning ex post facto/due process issues has not been changed. But, the original Dupas had a questionable footnote which seemed to reject a claim for applying the proof standard of beyond a reasonable doubt at sentencing and also included other notable dicta about sentencing procedures. In the new amended opinion, this original questionable footnote has been removed and replaced with this simple statement:
Defendant raises two arguments about the procedure that the district court must follow in the event that the court agrees to resentence him. We leave those issues for the district court to decide in the first instance.
Eighth Circuit reverses sentence for failure to consult
The Eighth Circuit, which still produces notable sentencing opinions each day and has now disposed of over 350 appeals with some Booker issue, today in US v. Davila, No. 04-3720 (8th Cir. Aug. 16, 2005) (available here) reverses a sentence imposed during the Blakely/Booker interregnum because the district court failed to consult the guidelines:
The PSR set Davila's total offense level at 40 and his criminal history category at I. Given these calculations, the Guidelines advised a range of 292 to 365 months' imprisonment. Davila's sentence was nowhere near this range, and the district court did not provide a reasoned analysis for sentencing Davila to 156 months' imprisonment. The district court expressed its desire to sentence Davila to 120 months' imprisonment, the statutory minimum. Without fully understanding the reasons behind the district court's discretionary sentence calculated by completely disregarding the Guidelines and without discussing the section 3553(a) factors, we are left with grave doubt as to whether the district court would have sentenced Davila to 156 months' imprisonment had the court understood its obligation to consider the Guidelines in sentencing Davila. Thus, we must remand this case to the district court to resentence Davila by following Booker.
Pondering the next SCOTUS Blakely/Booker case
The recent cert petitions in Blakely cases coming from California and from Tennessee have me thinking hard about exactly which case and exactly what issue will provide the setting for Supreme Court's next foray into the Blakely and Booker thickets. Notably, my outline in this post of key post-Blakely and post-Booker questions that merit the Supreme Court's attention did not focus on various issues that many state systems are struggling through. It is fun (but probably foolish) to speculate that the Supreme Court decided to pass on the issue of Booker plain error (basics here, commentary here and here) in order to save its time and energies for cleaning up some of the state Blakely mess it has made.
My SCOTUS pondering has both a descriptive and a normative component: I am wondering which Blakely/Booker case and issue the Supreme Court likely will take up next and also considering which Blakely/Booker case and issue the Supreme Court should take up next. Ultimately, I still think the validity and scope of the "prior conviction" exception, which the Shepard decision further confused, is the most pressing and important issue needing to be resolved, but lately I am thinking that the High Court may find its way to taking up some other Blakely/Booker issues first.
Perhaps readers might use the comments, which have been fairly quite of late, either to make predictions about the next Blakely/Booker case and issue likely to come before the Supreme Court or to advocate a position concerning which Blakely/Booker case and issue the Supreme Court should take up next.
(End of) summer sentencing reading list
Though you can't tell from the weather, the summer is coming to an end for most legal academics. (Like Hastings and Notre Dame, the new crop of first-year law students arrived on campus this week at Ohio State.) The end of the summer often brings a new crop of papers on SSRN with some sentencing coverage, and here are some (in addition to the important paper on appeal waivers) that have caught my eye:
- The Political Constitution of Criminal Justice by Professor William J. Stuntz
- Against Prediction: Sentencing, Policing, and Punishing in an Actuarial Age by Professor Bernard E. Harcourt
- 'An Extraordinarily Beautiful Document': Jefferson's Bill for Proportioning Crimes and Punishments and the Challenge of Republican Punishment by Professor Markus Dirk Dubber
- The New Rehabilitation by Professor Daniel M. Filler
- Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants? by Professor Stephanos Bibas
August 15, 2005
Second Circuit ruling on harmless error
Today has been a bit of a manic Monday in the federal circuit courts. I have seen noteworthy sentencing rulings from the 5th, 6th and 9th Circuits, in addition to the rulings from the 8th Circuit and 7th Circuit noted in prior posts. And now from the Second Circuit comes US v. Lake, No. 04-3238 (2d Cir. Aug. 15, 2005) (available here), in which Judge Jon Newman (of Crosby fame) speaks to the application of harmless error in the review of preserved Booker claims. Here is a snippet:
Once the Supreme Court fundamentally altered federal sentencing procedures by ruling in Booker that the Guidelines were no longer required to be applied, it became difficult for the Government to sustain its burden of proving that a Booker error was harmless. Although some sentences imposed under the pre-Booker regime would not have been different had the sentences been imposed under the post-Booker regime, it will usually not be easy to divine with certainty that the sentencing judge would have imposed the same sentence.
The full opinion is only nine pages, though folks looking for a fuller summary can stop by this post at Appellate Law & Practice.
Seventh Circuit says reliance on acquitted conduct still okay after Booker
The Seventh Circuit today in US v. Price, No. 03-3780 (7th Cir. Aug 15, 2005) (accessible here), at the end of a long opinion, had occasion to speak briefly to the consideration of so-called acquitted conduct at sentencing — that is, the continued validity of Watts — after Blakely and Booker. Though a few bold district judges such as Judge Gertner in Pimental and Judge Marbley in Coleman have, in essence, declared Watts abrogated by Blakely and Booker, the few circuits to address this issue have so far said Watts somehow remains alive and well . Here is the Seventh Circuit's cursory take on this issue (with some cites omitted):
The district court found for sentencing purposes that Mr. Davison was a member of the conspiracy despite the fact that the jury acquitted him on the conspiracy charge. In United States v. Watts, 519 U.S. 148 (1997), the Court held that a court is permitted to consider a broad range of information for sentencing purposes, including conduct related to charges of which the defendant was acquitted. The Court based its holding, in part, on 18 U.S.C. § 3661 ... and also on the notion that "different standards of proof . . . govern at trial and sentencing," id. at 155.
We join all the other courts that have confronted the issue in holding that the Supreme Court's holding in Watts remains the law after Booker.
Notably, the facts in Price provide a remarkable and stark example of the potential consequences of sentencing consideration of acquitted conduct under the guidelines. The facts in Price reveal that, for one defendant, the consideration of acquitted conduct added more than 25 years to his guideline sentence! Here's how:
The jury's verdict against Mr. Davison on the two distribution charges required a base offense level of 18 ... which would have carried a sentence of 27 to 33 months. However, despite the fact that the jury had acquitted Mr. Davison on the conspiracy charge, the district court at sentencing found by a preponderance of the evidence that Mr. Davison had been a member of the conspiracy and that more than 1.5 kilograms of cocaine base were attributable to him as a result. These findings elevated Mr. Davison's combined offense level to 38. The district court also applied a two-level enhancement to Mr. Davison's sentence for possession of a dangerous weapon in connection with a drug offense. The final offense level of 40, taken together with Mr. Davison's criminal history category, yielded a sentencing range of 292 to 365 months. The district court sentenced Mr. Davison to 360 months' imprisonment, to consist of two 180-month terms of imprisonment running consecutively.
Because defendant Davison's sentence was subject to a limited plain error remand, I am not sure Price serves as a viable case for testing in the Supreme Court whether Watts truly remains good law. But whenever I go back and read Blakely and its liberty-promoting principles, the tension between Watts and the principles of Blakely are palpable. More generally, I have a hard time understanding how the Constitution can and should still be understood to allow a defendant to receive 25 additional years in prison on the basis of a charge for which he has been acquitted.
Eighth Circuit join chorus saying Blakely does not apply to restitution
The Eighth Circuit today in US v. Carruth, No. 04-3568 (8th Cir. Aug. 15, 2005) (available here) issued an interesting opinion holding, as have all the other circuits to speak to the issue, that the Apprendi-Blakely-Booker line of cases do not prohibit judicial fact finding for restitution orders. Here is the heart of the court's analysis (with some cites omitted):
We agree [with other circuits] that neither Apprendi nor Blakely prohibit judicial fact finding for restitution orders. Under the MVRA there is no specific or set upper limit for the amount of restitution in contrast to criminal statutes which provide maximum terms of imprisonment and fine amounts. Instead, restitution is to be ordered "in the full amount" of victim losses as found by the court. 18 U.S.C. § 3664(f)(1)(A). Its amount will therefore vary depending on the value of the property lost. As we recognized in Ross, "there isn't really a 'prescribed' maximum." Thus, Apprendi's rule is not implicated. Neither does Blakely affect restitution orders; it dealt with a determinate sentencing scheme rather than a restitution statute without a set maximum limit.
At oral argument Carruth also cited United States v. Booker in support of his position. Booker had nothing to say about the MVRA, however, which provides an independent statutory basis for the district court's restitution order. As the Seventh Circuit has pointed out, Booker does not affect restitution orders since they are not subject to any prescribed statutory maximum and they are not in the nature of a criminal penalty. Restitution is designed to make victims whole, not to punish perpetrators; it is essentially a civil remedy created by Congress and incorporated into criminal proceedings for reasons of economy and practicality.
Notably, Judge Bye dissents, claiming that "the strictures of Apprendi ... apply to an order of restitution." Here is the heart of his analysis:
Once we recognize restitution as being a "criminal penalty" the proverbial Apprendi dominoes begin to fall. While many in the pre-Blakely world understandably subscribed to the notion Apprendi does not apply to restitution because restitution statutes do not prescribe a maximum amount, this notion is no longer viable in the post-Blakely world which operates under a completely different understanding of the term prescribed statutory maximum. To this end, Blakely's definition of "statutory maximum" bears repeating again, "the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S. Ct. at 2537 (emphasis added). Applying this definition to the present case, it dictates a conclusion that the district court's order imposing a $26,400 restitution amount violates the Sixth Amendment's jury guarantee because all but $8,000 of said amount was based upon facts not admitted to by Carruth or found by a jury beyond a reasonable doubt. Therefore, in contrast to the majority, I would vacate the district court's restitution order and remand to the district court with instructions to impose a restitution amount consistent with the Sixth Amendment.
As I commented after a recent Sixth Circuit decision on this issue, I find the Carruth majority's approach suspect in light of Justice Scalia's forceful and broad assertion for the Court in Blakely that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment." In other words, I think Judge Bye has the better of this debate if we really take Blakely at face value. And, in the end, Carruth reinforces my view that Blakely's applicability to restitution and other non-prison sentences is an issue that merits Supreme Court attention sooner rather than later.
DOJ's Orwellian defense of mandatory minimum guidelines
I know it is 2005, but I sometimes conjure up images of 1984 when I hear the doublespeak coming from AG Alberto Gonzales or others in the Justice Department in support of a legislative response to Booker in the form of "the construction of a minimum guideline system" (basics here). This morning the doublespeak is coming from John Richter, the Acting Assistant Attorney General in DOJ's Criminal Division, through this Letter to Editor in today's Washington Post. (The Richter letter is in response to the Post editorial last week which suggested Gonzales is "seeking a legislative fix [to Booker] that would do far more harm than good.")
The Richter letter starts by extolling "the many positive aspects of the mandatory-guidelines system" and then states that the "minimum-guidelines system discussed in the attorney general's speech in June attempts to re-create positive aspects of the sentencing guidelines consistent with the Supreme Court's jurisprudence." But, as I noted here following the AG's June speech and here when a departing John Ashcroft assailed advisory guidelines in his closing days, the simple way to get back to mandatory guidelines, "consistent with the Supreme Court's jurisprudence," would be to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker in which the guidelines would remain mandatory but contested aggravating facts that increase sentences would have to be proved beyond a reasonable doubt to juries.
As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act or the guidelines, it would simply require Congress to express its intent for the guidelines to be mandatory even though aggravating facts triggering longer guideline sentences now have to be proven to a jury or admitted by the defendant. The doublespeak chutzpah in the DOJ talk of a "minimum-guideline system" is that DOJ wants all the benefits of tough, mandatory guidelines but also wants to prevent defendants from having the benefits of the constitutional rights to a jury trial and proof beyond a reasonable doubt articulated in Apprendi and Blakely.
The Richter letter also asserts that "the minimum-guidelines system does not impose any greater risk of a higher sentence than today's advisory system." I suppose this clever phrasing is accurate, since judges now can use their post-Booker authority to sentence above the guidelines in any case. But, the chief complaints about a minimum-guidelines system is that it will reduce or eliminate judges' authority to impose a sentence below the guidelines based on a case's individual facts. Thus, a minimum-guidelines system would impose a much greater risk that judges will not have the authority to hand down sentences they consider to be just.
Justice Stevens speech critical of death penalty now on-line
As discussed here and here, last weekend at the ABA's Annual Meeting, Supreme Court Justice John Paul Stevens delivered a speech that was highly critical of the death penalty. That speech now appears at this link from this page on the Supreme Court's website. Only a portion of the speech, which was delivered at the Thurgood Marshall Awards Dinner and was in honor of Abner Mikva, addresses the death penalty. But Justice Stevens packs many potent points into four paragraphs detailing "features of death penalty litigation that create special risks of unfairness."
August 14, 2005
Dog days review
I have not done a weekly recap since this one at end of last month, so I suppose what follows below is more of a mid-month review. And, perhaps befitting the dog days of summer, this abridged review of the past two weeks of posts shows that the sentencing action remains hot through August.
SUPREME COURT DEVELOPMENTS AND COMMENTARY
- Roberts, the cert pool, and sentencing jurisprudence
- Justice Stevens speaks out against death penalty
- Judge Roberts on capital punishment
- SCOTUS is out of touch
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- Cert petition in the Tennessee Blakely case Gomez
- Cert petition in a California Blakely case
- New Jersey applies Blakely (and Booker?)
- Recent Alaska Blakely decisions
BOOKER CIRCUIT COURT DEVELOPMENTS AND COMMENTARY
- Amazing reasonableness debate from the 8th Circuit
- More on Harris from the 7th Circuit
- Ninth Circuit rejects ex post/due process limit on applying Booker remedy
- Sixth Circuit finds no problems with judicial factfinding for restitution orders
- Sixth Circuit ruling shows importance of burden of proof
BOOKER DISTRICT COURT DEVELOPMENTS AND COMMENTARY
- Judge Adelman spotlights problems with mandatories
- Judge Weinstein on rehabilitation as a sentencing goal
- More post-Booker data from the USSC
- WorldCom sentencing wrap-up and reflections
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- Updating the (declining) state of the death penalty
- Justice Stevens speaks out against death penalty
- Stevens, Roberts, Gonzales and the death penalty
- Atkins does not get the benefit of Atkins
- An engaging (but incomplete) habeas debate
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Gonzales reiterates call for Booker fix
- Editorial against Gonzales' Booker fix
- Judge Pryor urging sentencing reforms in Alabama
- An engaging (but incomplete) habeas debate
- Martha agrees(?) to three more weeks of home confinement
- Great blog debate over residency restrictions