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September 17, 2005

Is the Booker remedy here to stay?

A forthcoming issue of the Federal Sentencing Reporter asks the policy question, "Is a Booker Fix Needed?".  But lately I have been pondering the practical question of whether a Booker fix seems likely, at least in the near future.  I am starting to think that, for political and legal reasons, the Booker remedy may persist for some time.

Political reasons for the persistence of the Booker remedy:  Though I was grumpy that criminal justice issues did not arise during the Roberts hearing (wrap up here, rev up here), the lack of discussion of crime and punishment perhaps suggests that the overall political salience of these issues is relatively low right now.  And, through the fall, we should probably expect the public to remain focused on hurricane aftermath, and expect the Senate Judiciary Committee to remain focused on Supreme Court nominees.

Of course, at any moment, the House "Booker fix" provision of HR 1528 could come back to life and AG Gonzales could step up his advocacy for the creation of a minimum guideline system (background here).  Nevertheless, because the Booker remedy managed to preserve so much of the pre-Blakely status quo, it will be difficult to make a case politically that developing a Booker fix is more pressing than other matters of public policy.

Legal reasons for the persistence of the Booker remedy: As I note in my introductory commentary to the latest FSR issue, even though Booker clarified the legal meaning and impact of Blakely for the federal sentencing system, any effort to significantly alter the structure of federal sentencing remains fraught with doctrinal uncertainty because of the continued uncertainty that surrounds Harris and Almendarez-Torres.  Indeed, as first explained here way back in June, the on-going transitions in the composition of the Supreme Court make the uncertain precedents of Harris and Almendarez-Torres even more uncertain (especially given the current SCOTUS head-count on Apprendi-Blakely issues).

Though I am bad at predicting how and when the Supreme Court will act, I expect and sincerely hope the the Supreme Court will grant cert, sometime in the next few months, on at least one of the many pressing post-Blakely and post-Booker questions that need to be answered.  Once cert is granted, especially if the case involves a big issue like the Almendarez-Torres prior conviction exception, it will be quite easy (and perhaps quite sensible) for policy-makers and advocates to urge holding off on any legislative action until the Supreme Court further clarifies the meaning and reach of Blakely and Booker.

September 17, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (5) | TrackBack

September 16, 2005

Roberts' wrap up

To complement my pre-hearing Roberts rev up post, below I have assembled my posts from this week about the hearings:

And, for those who are already looking ahead to the next round of nomination fun, remember this recent post asking "How would a Justice Gonzales or a Justice Thompson handle sentencing issues?"

September 16, 2005 in Who Sentences? | Permalink | Comments (0) | TrackBack

Ninth Circuit officially holds Booker not retroactive

Back in July, though its ruling in Schardt v. Payne, No. 02-36164 (9th Cir. July 8, 2005) (discussed here), the Ninth Circuit decided that Blakely is not to be applied retroactively.  Today, in US v. Cruz, No. 03-35873 (9th Cir. Sept. 16, 2005) (available here), the other shoe dropped:

This appeal requires us to decide whether United States v. Booker, 125 S. Ct. 738 (2005), applies retroactively to cases on collateral review. We hold that Booker does not apply retroactively to convictions that became final prior to its publication.

Despite this (unsurprising) ruling in Cruz, as explained here and here, the Ninth Circuit's earlier decision in the Crawford case may allow some defendants in the Ninth Circuit to obtain a form of what I have called "equitable Booker retroactivity" by moving to recall the mandate and arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing.

September 16, 2005 in Apprendi / Blakely Retroactivity , Booker in the Circuits | Permalink | Comments (3) | TrackBack

Sentencing around the blogosphere

Though buzz about the Roberts hearing and Katrina issues still dominate the blogosphere, a number of notable sentencing items are still to be found:

September 16, 2005 | Permalink | Comments (1) | TrackBack

September 15, 2005

Pondering white-collar sentencing

Gearing up for next week's New York state court sentencing of Dennis Kozlowski, the former chief executive of Tyco International, this article in the New York Times asks "How Long to Jail White-Collar Criminals?"  Here is the thematic lead:

While recent lengthy sentences for white-collar crimes have been hailed by some as desperately needed deterrents after a deluge of corporate scandals, the sentencing of Mr. Kozlowski, 58, comes at a time when a number of lawyers, including former prosecutors, are questioning whether such sentences are justified.

I have covered white-collar sentencing issues in many prior posts, some of which are set out below:

UPDATE: In this post over at Houston's Clear Thinkers, Tom Kirkendall rightly wonders "How on earth does [the NY Times] write such an article without noting the sad case of Jamie Olis?"

September 15, 2005 in Race, Class, and Gender | Permalink | Comments (0) | TrackBack

FSR Issue asks: Is a Booker Fix Needed?

I am happy to announce that another issue of the Federal Sentencing Reporter is about to go to press.  This forthcoming issue asks in its title "Is a Booker Fix Needed?".  Following up themes first covered in FSR's issue entitled "The Booker Aftershock", this latest issue examines the state of federal sentencing after Booker and gives particular attention to whether, when, and how Congress should respond to Booker.

My opening commentary to this FSR issue, "Assessing Federal Sentencing After Booker," can be downloaded below, and in this post I previously discussed and posted the great article in the issue from Judge James Carr, the Chief Judge of the US District Court for the Northern District of Ohio.  The full contents of this latest FSR issue are listed below, and the Federal Sentencing Reporter can be ordered here and accessed electronically here

EDITOR'S OBSERVATIONS

ARTICLE

PRIMARY MATERIALS

September 15, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Assailing the lack of criminal justice questions at the Roberts hearing

The Senate Judiciary Committee's questioning of Judge Roberts concluded this morning, and there was another small criminal justice interlude.  Senator Feingold asked a few questions about habeas corpus, though there were no surprising revelations and the focus again was on the risk of wrongful convictions. 

The broader theme of the hearings, noted before here and here, remained the same: no Senator on either side of the aisle was willing to give serious attention to a range of important criminal justice issues. By my rough calculation, Judge Roberts endured nearly 25 hours of Q & A, and only about 30 minutes of all this time covered traditional criminal law topics.  And nearly all of that limited time was focused on the topic of wrongful convictions.

I suppose I am not surprised by this profound disinterest in the criminal justice system. But I consider the failure to explore with a potential Chief Justice of the United States issues relating to police practices, crime and punishment, to be a very serious failing by the Senate Judiciary Committee. 

Consider:

The confirmation hearings for Judge Roberts have been discussed by many as a "national civics lesson."  But a more accurate title might be a "national civil law lesson," since less than 2% of the questioning was focused on criminal justice issues that occupy 50% of the work of the Supreme Court.

September 15, 2005 in Who Sentences? | Permalink | Comments (3) | TrackBack

Notable Indiana ruling on implementing Atkins

Earlier this week, the Indiana Supreme Court issued an interesting decision in Pruitt v. Indiana, No. 15S00-0109-DP-393 (Ind. Sept. 13, 2005) (available here), concerning the procedures for assessing a capital defendant's claim of mental retardation.  Indiana prohibited the execution of the mentally retarded by statute in 1994, but that statute places the burden on the defendant to prove his mental retardation by clear and convincing evidence.  In a pre-Atkins decision, the Indiana Supreme Court upheld this procedural approach, but now in Pruitt the court decide that Atkins has changed the constitutional landscape so that now "the state may not require proof of mental retardation by clear and convincing evidence."

Interestingly, though the Pruitt court discusses Apprendi, Ring and Blakely later in its opinion on a separate issue, the court does not consider whether those precedents might require the state to prove the absence of mental retardation beyond a reasonable doubt.  (Recall, as detailed here, that last month a New Jersey concluded that "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 Indiana Supreme Court essentially decides in Pruitt that it is constitutionally permissible to require the defendant to prove his mental retardation by the preponderance of the evidence.

In footnote 1 of the Pruitt opinion, the court notes the diversity of state statutes on this issue (and thereby highlights the inevitability of a lot more litigation that surely will culminate in a Supreme Court case):

[By statute,] Georgia requires the defendant to prove his mental retardation beyond a reasonable doubt.  In addition to Indiana, Arizona, Colorado, and Florida require the defendant to prove he is mentally retarded by clear and convincing evidence.  Arkansas, Maryland, Missouri, Nebraska, New Mexico, and Tennessee require proof by the preponderance of the evidence. The federal government, Connecticut, Kansas, and Kentucky do not set a standard of proof.

September 15, 2005 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Texas executes Frances Newton

As covered in this AP story and over at TalkLeft, on Wednesday Frances Newton became the "third woman, and first black woman, to be put to death in Texas since executions resumed in 1982."  Newton's case received a good bit of publicity late last year before she received a temporary reprieve, but I think the hurricane and SCOTUS news crowded out this noteworthy death penalty story.  Timing is everything in death as well as in life.

September 15, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

September 14, 2005

Only death penalty barking at Roberts hearings

Though my prediction that sentencing issues would not take center stage during the Roberts' confirmation hearings was, as noted here, largely accurate on Tuesday, it appears that Senators Leahy and Feingold on Wednesday both brought up the death penalty, and specifically wrongful executions, in their questions.  Once I have a chance to review the transcript, I hope to comment more on the specifics of these interchanges.

Here, however, I must comment upon, and lament again, the notable and telling failure of the Senate Judiciary Committee to give serious attention to a range of important criminal justice issues.  A sizeable portion of the Supreme Court's docket involves criminal cases: according to this informative Goldstein & Howe summary of the October 2004 term, 35 of the Supreme Court's 80 dispositions were criminal cases (and some of the 17 dispositions involving civil rights, such as Cutter and Johnson v. California, were also criminal-justice related). 

Moreover, because Judge Roberts has barely any paper record in this area, it would seem especially important for Senators to explore Judge Roberts' basic approach and philosophy on a broad range of criminal justice topics.  But apparently, Senator Schumer and the other Senators decided it was more important to find out what kind of movies Judge Roberts enjoys: see 4:10 entry at the SCOTUSblog's live blog of the hearings.  [UPDATE:  I have now read the transcript, and the Schumer movie riff was an effort to accuse Judge Roberts of not being forthcoming in his answers.  And, I will add that, if Judge Roberts had said he enjoys movies with good acting, that might take him out of the mainstream as gauged by box office returns.]

FURTHER UPDATE: I have now read the transcript to discover that the questions raised by Senators Leahy and Feingold on the death penalty focused specifically on the Herrera case and were rather uninspiring.  Indeed, the most significant aspect of the exchanges seemed to be Judge Roberts' statement to Senator Leahy that the Supreme Court could expanded it docket because he thinks "the capability to address more issues is there in the court."

September 14, 2005 in Who Sentences? | Permalink | Comments (1) | TrackBack

Significant Massachusetts ruling on sex offender sentencing

Today in Commonwealth v. Pagan, No. SJC-09332, 2005 WL 2210333 (Mass. Sept. 14, 2005) (accessible here, perhaps), the Supreme Judicial Court of Massachusetts addressed various constitutional issues (and found some constitutional problems) with a relatively new state statute for sentencing sex offenders.  Here is the opinion's introduction:

The defendant appealed from the imposition of a term of community parole supervision for life (CPSL).... Specifically, he claims that (1) sentencing him as a repeat offender without indicting him as such is a violation of art. 12 of the Massachusetts Declaration of Rights; (2) G.L. c. 275, § 18, is unconstitutionally vague; and (3) G.L. c. 275, § 18, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).

For the reasons discussed below, we hold that a term of CPSL may be imposed lawfully on a repeat offender so long as the indictment or complaint alleges that he is a repeat offender, as required by art. 12.  We further hold that G.L. c. 275, § 18, is unconstitutionally vague as to first time sex offenders because it provides uncertain and conflicting standards that fail to inform defendants, prosecutors, and judges what is required before CPSL may be imposed.  In particular the statute identifies a standard of proof (clear and convincing evidence) but it contains contradictory language as to whether it is the Commonwealth or the defendant who must meet that standard, concurrently providing that the imposition of CPSL must be supported "by clear and convincing evidence" and that a determination not to impose CPSL must also be "supported by clear and convincing evidence." The statute also makes the imposition of CPSL dependent on a fact-finding process, but fails to identify what facts must be found, providing only that the judge must determine whether a defendant shall be committed to CPSL. To the extent that some of the language in the statute suggests that a judge has broad discretion to impose CPSL by applying traditional sentencing factors, it subjects that discretion to a fact-finding process that is inconsistent with that discretion. Moreover, insofar as § 18 is intended to make CPSL dependent on judicial fact finding (as opposed to the exercise of a judge's traditional sentencing discretion), it appears to violate the principle enunciated by the United States Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), cases that changed the constitutional requirements for enhanced penalty sentencing after CPSL was enacted.

September 14, 2005 in Blakely in the States, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Visions of variances

Though we are not hearing any sentencing talk at the Roberts hearing, the federal district courts continue to sentence more than 200 defendants every day.  And this morning a few notable variances or requests for variances are making newspaper headlines:

September 14, 2005 in Booker in district courts | Permalink | Comments (0) | TrackBack

September 13, 2005

Sentencing dogs not (yet?) barking at Roberts' confirmation hearings

Thanks to Tom Goldstein's effective live blogging here, I see that my prediction that sentencing issues would not take center stage during the Roberts' confirmation hearings is proving accurate.  As of 5:45pm, the Senate Judiciary Committee has questioned Judge Roberts on a wide array of topics for nearly a full day, and basic criminal justice issues are getting very little attention. 

I am not surprised about the little attention given to criminal justice issues in the Senators' questions, though I do think it is a notable (and telling) omission given that a significant portion of the Supreme Court's docket involves criminal justice issues.  As noted here at TalkLeft, Senator Feingold had the floor late this afternoon, and he asked some death penalty questions during Judge Roberts 2003 confirmation hearings.  However, it appears Senator Feingold has decided to leave that issue for another day, too.

Since we are not getting satisfaction from the Senators, perhaps we should just all play along at home. So, dear readers, I ask you to use the comments to suggest what criminal justice question(s) you would like to ask Judge Roberts.

UPDATE: Ask good questions dear readers, because we now know that the Senators (or at least their staff) draw insights from the blogosphere.  As noted here by Orin Kerr, Senator Cornyn referenced this Volokh Conspiracy post by Jim Lindgren toward the end of today's hearing.

FURTHER UPDATE: Also, at the very end of the day's questioning, Senator Durbin discussed, quite briefly, the death penalty, innocence issue and the Herrera case in which Judge Roberts had played a role.  Roberts said in this interchange that "any case involving the death penalty is different.... The irrevocability calls for the most careful scrutiny."  He also said, "DNA evidence obviously I think is a very important and critical issue. No one wants an innocent person executed, period.  And the availability of that type of evidence, that opportunity in some cases I think is something that's a very significant development in the law.  Now, as I said, there are cases coming up in there, so I don't want to say anything further on that."

Later version cross-posted at PrawfsBlawg.

September 13, 2005 in Who Sentences? | Permalink | Comments (0) | TrackBack

Ninth Circuit upholds allocution earning defendant 30 extra months

At the end of a long decision, the Ninth Circuit today in US v. Smith, No. 03-10604 (9th Cir. Sept. 13, 2005) (available here), upheld a district court's decision to increase a sentence by 30 months (from 121 months to 151 months) in response to the defendant's lengthy speech in which the defendant contested the court's jurisdiction and demanded that the court set him free.  Here is a passage from the Ninth Circuit's rejection of the defendant's complaint on appeal:

Smith argues that his First Amendment free speech and Fifth Amendment due process rights were violated because he was punished with a higher sentence for expressing his views on the district court's lack of jurisdiction.  But the district court made it clear that it was increasing the sentence based on Smith's lack of remorse, and his threat to the financial safety of the public when released.  These are legitimate sentencing factors under 18 U.S.C. § 3553(a), which include considering the "characteristics of the defendant" and the need for the sentence "to promote respect for the law," "to afford adequate deterrence to criminal conduct," and "to protect the public from further crimes of the defendant."

The district court may indicate a tentative sentence and then hear from the defendant before making a final sentencing determination.... That the district court considered Smith's lack of remorse in sentencing him is by no means a novel concept. The district court did not err in taking Smith's statement into consideration for sentencing.  The Sentencing Guidelines, in either their mandatory or advisory status, do not insulate a defendant from his or her own foolishness.

In addition to serving as a useful warning to defendants and their counsel about "foolishness" at sentencing, the decision in Smith perhaps suggests the need for a post-conviction, Miranda-type warning: "You have a right to remain silent at sentencing, anything foolish you say can and might be used against you to increase your sentence, ..." 

September 13, 2005 in Offender Characteristics | Permalink | Comments (2) | TrackBack

Booker action back in the Eighth Circuit

Even though the focus of the legal universe is in DC, the Eighth Circuit continues to churn out significant sentencing opinions.  Aided by the official summaries on the 8th Circuit's opinion page, I see a number of notable Booker rulings, and especially catching my eye are US v. Rogers, No. 04-2563 (8th Cir. Sept. 13, 2005) (available here) and US v. Jensen, No. 04-4209 (8th Cir. Sept. 13, 2005) (available here).

Rogers should come with a parental advisory warning, because the facts in this child pornography case are truly scary.  (Seriously, skip over this case if ugly facts make you uncomfortable.)  Though the facts of Rogers grabs your attention, the legal ruling should not be overlooked: the Eighth Circuit upholds a departure sentence of 360 months up from a guideline range of 57 to 71 months.

The facts in Jensen are just sad rather than scary, and the legal ruling is arguably sad, too.  In Jensen, the Eighth Circuit first finds that the government breached a plea agreement by not moving for additional offense level reduction, but then finds that this breach did not amount to plain error and thus the defendant's sentence is affirmed despite the government's breach.

September 13, 2005 | Permalink | Comments (0) | TrackBack

September 12, 2005

Fine commentary on SCOTUS and the death penalty

I suspect the one major sentencing issue likely to get serious attention during the Roberts hearing is the death penalty.  To get in the mood for that portion of the festivities, may I suggest two new resources with some fine commentary on the Supreme Court's death penalty jurisprudence:

September 12, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Can Roberts bring consensus to SCOTUS sentencing jurisprudence?

One important theme in the on-going Senate hearings for nominee John Roberts (which are being live blogged here at SCOTUSblog) is whether a Chief Justice Roberts might be able to forge more consensus within a Court that seems fond of multi-opinion, fractured rulings.  Senate Judiciary Committee Chair Arlen Specter, in his prepared opening statement, has said, "The next chief justice will have the potential  ... to bring consensus to the court which has made a hallmark of 5-4 decisions, many of which are inexplicable."  Of course, though this description of SCOTUS rulings might include any number of recent decisions, Booker could well have been in the front of Specter's mind when so besmirching the Court's recent work.

As we think about what greater consensus might mean in the context of non-capital sentencing jurisprudence, we should be particularly mindful of the current SCOTUS sentencing head-count on Apprendi-Blakely issuesTo have less fractured rulings in this arena in the wake of recent Court transitions, a Chief Justice Roberts would first probably have to help Justices Breyer and Kennedy finally make a trip to Apprendi-land.  (Recall that Justice Scalia in his Ring concurrence essentially offered to buy Justice Breyer his ticket: "There is really no way in which Justice Breyer can travel with the happy band that reaches today's result unless he says yes to Apprendi.  Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.").

As we think about what greater consensus might mean in the context of capital sentencing jurisprudence, we should perhaps be mindful of the ways death (penalty jurisprudence) is different.  Even when there is a relative consensus on some issues (e.g., all the current Justices now seem to accept the basic constitutionality of the death penalty), cert. is likely to be granted only in capital cases raising issues that can be expected to fracture the current justices.

September 12, 2005 in Who Sentences? | Permalink | Comments (4) | TrackBack

A new day for capital clemency?

During the holiday period last year, the papers and this blog were buzzing about the modern disuse of  historic executive clemency powers (see, e.g., posts here and here).  However, noteworthy decisions by governors in Indiana and Ohio are leading to an insightful examination of whether we may be starting to see the dawning of a new day for the exercise of clemency, at least in capital cases.

From Indiana, this clemency conversation is prompted by the recent decision by Indiana Governor Mitch Daniels to commute the death sentence of Arthur Baird and previous commutations by former Indiana Governor Joe Kernan (basic details here).  A thoughtful analysis of these developments in this newspaper article explores why "today, governors seem to have more latitude to spare the lives of some condemned killers and execute others without incurring the wrath of voters, large numbers of whom still support capital punishment."

From Ohio, the clemency conversation is prompted by Ohio Governor Bob Taft's decision to delay John Spirko's execution because of questions surrounding whether prosecutors presented inaccurate information at his clemency hearing.  A thoughtful analysis in this AP article explores whether this decision could have a broader impact on capital cases, although many express doubt that "Taft's decision will echo beyond Spirko."

September 12, 2005 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

September 11, 2005

Roberts rev up

I have done a few dozen posts on Justice Roberts and sentencing issues since his initial nomination.  Though it seems unlikely that sentencing issues (except perhaps the death penalty) will take center stage during the Senate confirmation hearings scheduled to start tomorrow, I have still assembled below some highlights of my Roberts' coverage:

Though my day job will keep me from following all the Roberts action during the hearings, Howard at How Appealing and the folks at The Supreme Court Nomination Blog will surely provide more coverage and analysis than anyone could reasonably hope for.

September 11, 2005 in Who Sentences? | Permalink | Comments (0) | TrackBack

Minnesota struggling with its Blakely pipeline

As evidenced most recently by protestations from some 11th Circuit judges, the federal courts have struggled greatly with a range of Booker pipeline issues.  And this interesting article from Minnesota details that the North Star State is struggling greatly with its own Blakely pipeline issues in the wake of the Minnesota Supreme Court's recent decision in Shattuck (discussed here).  Here is a snippet:

A recent state Supreme Court opinion has some legal experts puzzling over whether dozens of the state's most dangerous felons will get out of jail early or have to be resentenced.  Judges, lawyers and law professors say much of their confusion hinges on nine words at the end of the so-called Shattuck decision....

"The impact of Shattuck to me is unclear," said Dakota County Judge Robert King, Jr., .... "We didn't get a whole lot of guidance from the Supreme Court."  Hoping to clear up the confusion, the Hennepin County attorney's office has asked for a formal clarification or correction of the opinion.

September 11, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack