September 24, 2005
Great weekend sentencing reading
My travels back from NY after participating in this great Booker seminar will likely take me off-line through the weekend. But, before I sign-off, I can link to two interesting new sentencing articles:
- The Original Intent of Uniformity in Federal Sentencing by Michael O'Hear
- One Cheer for United States v. Booker by Timothy Lynch
Also, I see that my latest articles, A More Perfect System: Distinguishing Offense Conduct and Offender Characteristics and Reconceptualizing Sentencing, can now be accessed via SSRN.
More updated post-Booker USSC data
I was pleased to learn that there is new batch of post-Booker sentencing data available at this link over at the US Sentencing Commission's Booker webpage. This latest, greatest USSC post-Booker sentencing update includes all cases sentenced by close-of-business on September 1, 2005, and the cumulative data now cover 36,660 cases. From a quick review, the latest numbers continue the basic stories emerging from the data released over the summer (details here and here, commentary here).
Though the basic national cumulative numbers are the easiest to consume, the most interesting data continue to lurk within the circuit-by-circuit information and data on average sentence lengths, pre- and post-Booker. In addition, I suspect that there are important "smaller" post-Booker stories within the data that might emerge from further disaggregation of the numbers by types of offenses and offenders. I am hoping that the USSC, in addition to continuing to update these basic numbers, might also soon break the numbers down further as was done in this mega data report back in May.
Notable 9th Circuit decision on mandatory minimums
Most of the circuit courts have been fairly quiet on the sentencing front this past week, but the Ninth Circuit on Friday followed up its major ruling on judicial fact-finding and the prior conviction exception with a major ruling on judicial fact-finding and mandatory minimums. In US v. Dare, No 04-30202 (9th Cir. Sept. 23, 2005) (available here), the Ninth Circuit panel felt compelled, based on the Supreme Court's Harris decision, to uphold imposition of a mandatory minimum based on judicial fact-finding by a preponderance of the evidence:
Dare argues that the constitutional analysis in Harris was effectively overruled by the plurality in Booker, 125 S. Ct. at 756. We agree that Harris is difficult to reconcile with the Supreme Court's recent Sixth Amendment jurisprudence, but Harris has not been overruled.
Notably, Judge Bea dissented, arguing that Harris "is no longer good law in cases where a defendant receives a sentence, based on facts found by a judge other than a prior conviction, that is higher than the maximum sentence the judge could have imposed based solely on facts either admitted by the defendant or found by a jury beyond a reasonable doubt." According to Judge Bea, "[w]hile Harris may not be overruled in its entirety, it is limited by Booker, and Dare's sentence exceeds the Booker limit."
September 23, 2005
Post-Booker realities in the 2d Circuit
Astutely timed, since I am about to participate this morning in this great Booker seminar sponsored by the New York State Bar Association, the Connecticut Law Tribune has this effective article about post-Booker sentencing realities in the Second Circuit. Here is the lead: "Federal judges within the Second U.S. Circuit Court of Appeals are apparently relishing their newfound ability to more easily depart from the rigidity of the U.S. Sentencing Guidelines."
UPDATE: A speaker at the NYSBA seminar suggested that the Second Circuit data discussed in the Connecticut Law Tribune article should be "taken with a grain of salt" because there may have been some reporting errors in data coming from the Southern District of New York. In addition, as detailed in this post, there is even more up-to-date data now available from the US Sentencing Commission.
Criminal justice in Roberts' written testimony
Yesterday I noted in this post a WSJ article on Judge Roberts' written responses to follow-up questions from last week's Senate Judiciary Committee hearing. The article's lead asserted that, through his written responses, Roberts "cast doubt on a 1958 Supreme Court precedent that underpins recent rulings finding the execution of juvenile offenders and the mentally retarded to be unconstitutional." Thanks now to this page at the Washington Post, you can access here the Q&A on the Eighth Amendment and see that the WSJ seems to be trying to milk a story from a pretty milquetoast answer from Judge Roberts.
A bigger story in the written follow-ups, at least by my lights, is that Senator Kennedy used this forum to finally ask some pointed questions about the criminal justice system. At pages 6 to 22 in these written questions, Senator Kennedy asks a number of very good questions about criminal sentencing, mandatory minimums, Booker and the death penalty. Unfortunately, Judge Roberts largely avoid answering the toughest questions and simply restates existing SCOTUS precedent in response to others. It is a shame some of these issues were not brought up in the live hearing, where they would have gotten more press attention and would have forced Judge Roberts to be at least a bit more forthcoming.
Meth, mandatories and moral values
Recognizing that methamphetamine is the latest "drug epidemic" in the news, Families Against Mandatory Minimums has focused its latest FAMM Gram on spotlighting why it would be unwise for Congress to respond "to drug and gang hysteria with new, ill-considered mandatory sentencing laws." This short newsletter includes a lot of interesting items, including a portion of a June 29 letter to the Washington Post from Charles Thomas, Executive Director of the Interfaith Drug Policy Initiative, which suggests an interesting faith-based perspective on sentencing policy:
Considering how often the Bush administration refers to moral values, it should consider that most major religious groups oppose mandatory sentencing, including the U.S. Conference of Catholic Bishops, the National Council of Churches, the United Methodist Church, Chuck Colson's Prison Fellowship Ministries, the Presbyterian Church (USA), the Episcopal Church, the Evangelical Lutheran Church in America, all four major black Baptist denominations, the United Church of Christ, the Union for Reform Judaism and the Unitarian Universalist Association.
No denominations are known to favor mandatory sentencing. The moral position on this issue is clear.
September 22, 2005
New California study on race and death penalty
Thanks to posts at TalkLeft and How Appealing, I saw news of a new study from California documenting the impact of race of the victim in the imposition of the death penalty. The study, entitled "The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-99," can be accessed here and its major findings are summarized here. A press release from the ACLU of Northern California (available here) sets out these key findings:
- 80% of executions in California were for those convicted of killing whites, while only 27.6% of murder victims are white.
- Those who murder whites are over four times more likely to be sentenced to death than those who kill Latinos and over three times more likely to be sentenced to death than those who kill African-Americans.
- A person convicted of 1st degree murder in a predominantly white, rural county (like Napa, King, Colusa, or Shasta counties) is more than three times as likely to be sentenced to death than a person convicted of a similar crime in a diverse, urban county like Los Angeles, which has the highest number of homicides in the state.
- The death rate by homicide in California varies substantially by race. African-Americans are six times more likely to be murdered than whites.
Off to NYC for Booker seminar
I am about to travel to New York City so I can participate tomorrow in this great Booker seminar sponsored by the New York State Bar Association. Though I hope to get on-line at times while away, blogging will likely be light through the weekend.
Readers needing a sentencing fix are encouraged to check out the latest issue of the Federal Sentencing Reporter, which asks "Is a Booker Fix Needed?". Also, I have recapped some recent notable recent developments and commentary below.
SCOTUS DEVELOPMENTS AND COMMENTARY
- Does Roberts question modern 8th Amendment jurisprudence?
- Roberts' wrap up
- Assailing the lack of criminal justice questions at the Roberts hearing
- Will the next SCOTUS nominee have any criminal law background?
- Will stare decisis save the A-T prior conviction exception?
BOOKER/BLAKELY DEVELOPMENTS AND COMMENTARY
- Is the Booker remedy here to stay?
- Major 9th Circuit ruling on prior conviction exception
- More on consideration of state-federal disparity after Booker
- Invigorating the sentencing process after Booker
- Third Circuit to examine en banc Blakely's impact on restitution
- Ninth Circuit officially holds Booker not retroactive
Does Roberts question modern 8th Amendment jurisprudence?
Though the media is now focused on how Democrats are going to vote on the Roberts' nomination, the Wall Street Journal this morning has this article (subscription required) noting Judge Roberts' written responses to follow-up questions from last week's Senate Judiciary Committee hearing. Interestingly, the article's lead asserts that, through these written responses, Roberts "cast doubt on a 1958 Supreme Court precedent that underpins recent rulings finding the execution of juvenile offenders and the mentally retarded to be unconstitutional. "
Here is the full passage from the WSJ article covering this interesting and potentially consequential issue of Eighth Amendment jurisprudence:
It was in response to written questions from Mr. Kennedy and Sen. Sam Brownback (R., Kan.) that Judge Roberts commented on the standard the high court has used for nearly half a century to interpret the Eighth Amendment ban on "cruel and unusual punishments."
In the 1958 Trop v. Dulles case, Chief Justice Earl Warren wrote that the amendment should be interpreted according to "the evolving standards of decency that mark the progress of a maturing society," and later rulings have looked to both domestic and international mores to assess whether certain punishments are constitutional. In March, a 5-4 Supreme Court used that test to strike down state laws allowing the execution of juvenile offenders.
In his reply, Judge Roberts didn't attack the "evolving standards" test, as Justice Antonin Scalia and other critics have. But he observed that applying "this principle has been a source of deep disagreement on the court that can in part be traced to the language of the Eighth Amendment."
Great symposium exploring sentencing rhetoric Post-Booker
A terrific looking symposium is schedued to take place next month at the Roger Williams University Law School entitled "Symposium on Sentencing Rhetoric: Competing Narratives in the Post-Booker Era." The symposium includes a terrific line-up of professors and policymakers, and here is a description of the event (with more details available at this link):
This symposium will bring together federal judges, prosecutors, defense attorneys, congressional staffers, public interest advocates, and academics to share their perspectives about sentencing rhetoric in the post-Booker era. Some of the panels will focus on distinctly federal issues, such as the concept of "reasonableness" in Booker as well as the Justice Department's preferred Booker fix, the so-called "topless" guidelines. More broadly, the symposium will seek to engage its participants in a discussion of sentencing rhetoric in the courts and in Congress during this historic period of re-evaluation and policymaking.
September 21, 2005
More on consideration of state-federal disparity after Booker
As detailed in a series of posts here and here and here, the First Circuit in US v. Wilkerson raised and then ducked the issue of whether federal-state sentencing disparities may be considered post-Booker. This issue will surely continue to arise, however, because many defendants may be able to assert in federal sentencing proceedings that they would have received much lower sentences if prosecuted in state court.
Indeed, a reader was kind enough to send me (and give me permission to post) a brief from US v. Jeremiah recently filed in the Eighth Circuit, which argues that the "District Court's failure to consider state court sentences for the same conduct of similarly situated defendants in the county where Appellant was arrested was unreasonable under Booker and 18 U.S.C. § 3553(a)(6)." This brief, which is an interesting read, can be downloaded below. Here are the key facts and the main issue as stated in the brief:
Appellant pled guilty on March 1, 2004, to one count in an information of use of transmitting information about a minor in violation of 18 U.S.C. § 2425 for using the Internet to communicate about a sex act with a police officer posing as a minor female.... [T]he government stipulated that, if charged in state court in Arkansas, Appellant would have received a sentence of five years probation, 90 days incarceration, and a fine. Appellant moved the District Court to depart downward and reduce the sentence based on the comparable state sentences under 18 U.S.C. § 3553(a)(6).
The District Court noted the "great disparity," but ultimately resentenced Appellant to the [within guideline] sentence of 27 months. Appellant appeals the sentence for unreasonableness because of the federal-state disparity for the same conduct.
Continued blogosphere buzz
As was true late yesterday, thoughtful bloggers are continuing thoughtful discussions of some recent sentencing news items and posts:
- Daniel Solove has this post at PrawfsBlawg about the length of white-collar sentences, and Ellen Podgor relays this interesting first-hand report from the recent Tyco sentencings over at the White Collar Crime Prof Blog.
- Reacting to my post about limited criminal law and trial experience of sitting Supreme Court justices, Stephen Bainbridge in this post notes the need for a securities law expert and details the impact that unique expertise could have on SCOTUS decision-making. (Since Bainbridge suggests that he is looking for someone in the mold of Justice Lewis Powell, he will perhaps be pleased to see that my colleague Dale Oesterle at the Business Law Prof Blog here compares John Roberts to Justice Powell.)
Major 9th Circuit ruling on prior conviction exception
In a detailed opinion with lots of important analysis, the Ninth Circuit today spoke at length about the scope of the Almendarez-Torres "prior conviction exception" in US v. Kortgaard, No. 03-10421 (9th Cir. Sept. 21, 2005) (available here).
In short form, Kortgaard holds "that upward departures under § 4A1.3 of the United States Sentencing Guidelines involve factual findings beyond the fact of a prior conviction." In long form, Kortgaard has a lot to say about the reach of Blakely and about the distinction between factual and legal findings concerning prior convictions. Most fundamentally, the Ninth Circuit reiterates its view that the prior conviction exception should be given a narrow reading:
We are also guided by our decision in United States v. Tighe, wherein we stated that the prior conviction exception "should remain a 'narrow exception' to Apprendi." 266 F.3d 1187, 1194 (9th Cir. 2001) (quoting Apprendi, 530 U.S. at 490). As we noted in Tighe, the Apprendi Court derived the prior conviction exception from Almendarez-Torres; however, the Court also questioned the continuing validity of Almendarez-Torres regarding the consideration of recidivism in sentencing, construed it as "represent[ing] at best an exceptional departure from the historic practice that we have described," and therefore decided "to treat the case as a narrow exception to the general rule." Apprendi, 530 U.S. at 487, 489-90. We treated it accordingly in Tighe and declined "to extend Apprendi's 'prior conviction' exception to include prior nonjury juvenile adjudications on the basis of Almendarez-Torres' logic." Tighe, 266 F.3d at 1194.
We are faced here with another request to extend or broadly construe Apprendi's exception in order to include within it issues that have not been submitted to a jury. We once again decline to do so and continue to treat the exception as a narrow exception to the general rule.....
Apprendi stated the exception as covering "the fact of a prior conviction," not facts that are derived or inferred therefrom. 530 U.S. at 490 (emphasis added); see also id. at 488 ("any 'fact' of prior conviction"). While the Court repeated the "prior conviction" exception in both Blakely and Booker, in neither case did the Court have the occasion to redefine or expand its scope..... Even if the prior conviction exception legitimately includes facts that follow necessarily or as a matter of law from the fact of a prior conviction, we have already concluded that the findings required to support an upward departure under § 4A1.3 are not of that nature because they require the judgment of a factfinder.
This strong reaffirmation of Tighe, which is in tension with subsequent rulings of some other circuits, is quite significant. And, critically, Kortgaard is not just important for undertsanding how Blakely and Booker and prior conviction exception are to be applied in federal cases in the Ninth Circuit: the reiteration in Kortgaard of Blakely's reach and the narrowness of the prior conviction exception could have a profound impact on state cases coming to the Ninth Circuit on habeas appeals from Alaska and Arizona and California and Hawaii and Oregon and Washington and perhaps other states.
The importance of this ruling for federal sentencing is somewhat muted by the Booker remedy, but I am sure this decision will still garner the federal government's focused attention. I am less sure, however, whether the government might seek rehearing en banc or might seek cert., especially because the case involves a number of potentially intricate issues.
Will the next SCOTUS nominee have any criminal law background?
As evidenced by articles at Slate and from the AP, the beltway buzz over the possible next Supreme Court nominee is starting to grow. And if past is prologue, we should expect a nominee from the White House soon: President Bush announced John Roberts' nomination 18 days after Justice O'Connor announced her retirement, and Wednesday marks 18 days since Chief Justice Rehnquist passed away.
In the run up to the selection of John Roberts, I spotlighted in a series of posts the limited trial court experience and criminal law experience among the current Justices. And, because Judge Roberts is lacking in both these areas, I am especially hopeful — though not particularly optimistic — that the name which emerges from the White House short list might contribute to SCOTUS diversity across these important dimensions.
Some prior related posts:
- Does SCOTUS need a trial judge?
- Brave New Justice and sentencing issues
- How would a Justice Gonzales or a Justice Thompson handle sentencing issues?
- A criminal law perspective on Janice Rogers Brown
- Speculating about Judge Roberts' view on criminal law issues
- Assailing the lack of criminal justice questions at the Roberts hearing
- Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
UPDATE: This Washington Times article states that a "new name has emerged on the longer list of candidates — Judge Consuelo M. Callahan of the Ninth Circuit." As detailed in this press release at the time of her confirmation to the Ninth Circuit, Judge Callahan was a state prosecutor for 10 years and also a state trial judge for 4 years. And, interestingly, this DOJ bio indicates that Judge Callahan worked for the Sacramento County Public Defender's Office while attending McGeorge School of Law. Also, thanks to this playful profile by A3G, I see that a story about Judge Callahan ran in last November's Daily Journal under the title "Tough Customer: 9th Circuit Judge Consuelo Callahan Has a Playful Side But Not When It Comes to Sentencing."
Continued sentencing dialogues in the blogosphere
Other bloggers are continuing thoughtful discussions of some recent sentencing news items and posts:
- Spurred by the recent Tyco sentences, Stephen Bainbridge asks in this post whether first-offender white-collar criminals should serve their sentences in a maximum security prison; Dave Hoffman at PrawfsBlawg follows up here.
- Spurred by this recent post on shaming punishments, TalkLeft in this post calls upon judges to "spend their creative energy coming up with better [alternative sentences] that don't demean and further alienate the offender."
September 20, 2005
Will stare decisis save the A-T prior conviction exception?
As detailed in my SCOTUS head-count on Apprendi-Blakely issues, the departure of Justices Rehnquist and O'Connor from the Supreme Court means that currently there are now five Justices on record opposing the Almendarez-Torres "prior conviction exception" (Justices Stevens, Scalia, Thomas, Breyer and Ginsburg) and only two Justices supporting the Almendarez-Torres exception (Justices Kennedy and Breyer). Though I have previously pondered whether a Justice Roberts would be in the Scalia-Thomas mold on these issues, lately I have been thinking a lot about how a Chief Justice Roberts, with his reported respect for stare decisis, might lead the Court when it (inevitably) takes a case to reconsider the Almendarez-Torres "prior conviction exception."
Larry Solum over at Legal Theory has this post which culls two choice quotes on stare decisis from Roberts' comments at his confirmation hearings. (The quotes come from a long list in this interesting document from Senator Jon Kyl's office.) In one quote, Roberts suggests that key considerations before reversing a prior precedent include "settled expectations, ... the legitimacy of the Court, ... whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments"; in the other quote, he emphasizes "you always have to take into account the settled expectations that have grown up around the prior precedent [because it] is a jolt to the legal system to overrule a precedent."
In my view, reversing the Almendarez-Torres "prior conviction exception" would be a significant jolt to the legal system (although we might debate whether expectations have even been truly settled in the wake of Apprendi where Justice Thomas disavowed his vote in Almendarez-Torres). Whenever the Supreme Court has occasion to look at the prior conviction exception again, it will be especially interesting to watch how all this stare decisis talk (which, of course, is now focused on Roe) comes into play.
September 20, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Invigorating the sentencing process after Booker
At the terrific event entitled "What To Do After Booker and Blakely" that I participated in earlier this month (details here), federal public defender Alan DuBois presented terrific ideas about how the sentencing process could be improved in the wake of Booker. His presentation was based on a draft paper he has authored with Anne Blanchard, which I can now make available for downloading.
This paper, which will appear in a future issue of the Federal Sentencing Reporter, is entitled "The Due Process Approach to Sentencing Justice: How Courts Can Use Their Discretion To Make Sentencings More Accurate and Trustworthy." Here are some early passages from a paper that is a must-read for everyone thinking through procedural issues in the wake of Booker.
The Supreme Court's opinion in United States v. Booker, 125 S. Ct. 738 (2005) has freed courts not only from the substantive mandates of the United States Sentencing Guidelines — the compulsory enhancements, binding sentencing ranges, etc. — but from its procedural dictates as well. Courts now enjoy the discretion to impose stronger procedural protections at sentencing than the minimal standards dictated by the Guidelines. After Booker, procedurally speaking, what is not forbidden is allowed. This paper discusses some of the procedural reforms defendants should be urging courts to adopt in order to improve the accuracy and reliability of fact-finding at this most critical stage of the criminal process, the sentencing hearing....
While the Booker remedy was perhaps not all that defendants might hope for, by freeing courts from mandatory adherence to the Guidelines, it does provide courts with greater leeway to experiment with new procedures and standards in order to improve the accuracy, reliability and fairness of the sentencing process. Early returns suggest that courts are taking up this challenge.
More on the shame game
Thanks to this post by Dan Markel at PrawfsBlawg, I see that Jonathan Turley had published in Sunday's Washington Post this interesting commentary which is highly critical of shaming punishments. Many of Turley's arguments against shaming punishments, like those of Dan previously noted here, are forceful. But, as I have said before, given the questionable efficacy of our traditional approaches to punishment and our over-reliance on incarceration (background here), I am quite open to greater use of alternative punishments, including mild shaming sanctions, especially when they are imposed in lieu of an extended imprisonment term.
Interestingly, Turley's commentary asserts that there is "no evidence that creative sentences work better at deterring crime than other punishments." I am suspect of this broad claim, especially since, as detailed in this recent article, judges who employ creative shaming sentences often contend based on their own anecdotal experiences that such punishments can be more effective than traditional incarceration. Some thoughtful work in this area distinguishes bewteen reintegrative shaming and stigmatizing shaming, although Turley seems to be arguing against all forms of shaming punishments.
Below are links to some prior posts in which shaming punishments are discussed and debated:
- For Shame ... I mean, Against Shame
- Reconsidering shame
- Ain't that a shame
- Creative (and effective?) shaming
- A shame-full proposal
- Shaming, remorse, apologies and victims
September 19, 2005
Great sentencing thoughts around the blogosphere
Inspired in part by the sentencing today of former Tyco International executives, the blogosphere is buzzing with a number of great sentencing posts:
- A range of insights about the Tyco sentences can be found at TalkLeft, at the Conglomerate, and at White Collar Crime Prof Blog.
- Brooks Holland over at PrawfsBlawg has this engaging post on prison conditions and punishment theory asking "Should sentencing judges more openly consider this factor in any manner in fashioning an appropriate sentence?"
- Paul Butler, over at the new and intriguing blackprof.com, has this thoughtful post discussing two "prominent women convicted of perjury": Martha Stewart and Lil Kim. [UPDATE: And now I see that Dan Markel at PrawfsBlawg has followed up thoughtfully in this post.]
Third Circuit to examine en banc Blakely's impact on restitution
The folks over at Appellate Law & Practice have a lot of strong recent posts, including this item which helpfully pointed me to this extended post from the Third Circuit Blog detailing that the Third Circuit "has sua sponte voted to rehear en banc three appeals previously argued before two different panels in which the issue is whether the rule of Blakely and Booker applies to orders of restitution and forfeiture." By my lights, this is an quite interesting and important development.
As detailed in this post on an Eighth Circuit decision last month, the consensus view in the federal circuits is that neither Apprendi nor Blakely prohibit judicial fact finding for restitution orders. But, as I have said before, that consensus view seems somewhat 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."
David McColgin's post at the Third Circuit Blog provides a useful primer on why the Third Circuit will have a lot to consider in these en banc cases, and this prior posts details that at least one academic commentator thinks that the Third Circuit ought to follow a different path than the other circuits on these important issues.
September 19, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Booker in the Circuits, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
Tyco executives to be sentenced today
The latest chapter in the saga of modern white collar sentencing will play out today in a New York state court when former Tyco International CEO Dennis Kozlowski and CFO Mark Swartz are sentenced following their conviction on various fraud charges. This AP story and this recent post provides background, and the folks over at White Collar Crime Prof Blog have some thoughtful recent commentary here and here.
Anyone want to suggest what the sentence should be or predict what the sentence will be?
UPDATE: This AP report says that prosecutors have "urged a state judge Monday to sentence former Tyco International CEO L. Dennis Kozlowski to the maximum 15 to 30 years in prison." If such a sentence was imposed, Kozlowski would still be eligible for parole in 12.5 years.
ANOTHER UPDATE: As detailed in this CNN report, Kozlowski and Swartz were sentenced to 8-1/3 to 25 years in prison. In addition, "Kozlowski and Swartz were ordered to pay back $134 million to Tyco while Kozlowski must pay a criminal fine of $70 million and Swartz must pay an extra $35 million." Thanks to the commentors for first putting this info in the comments while I got a bite to eat.