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January 29, 2005

More post-Booker reports in the papers

Yet again there are lots of reports in newspapers about post-Booker federal sentencings (some previous stories are assembled here and here).  Though we get a much fuller view of Booker's impact and meaning from written opinions (such as the thoughtful work in Judge Pratt's Myers opinion), these articles still are quite revealing:

January 29, 2005 in Booker in district courts | Permalink | Comments (0) | TrackBack

You never under-litigate your first

The legal wrangling over the pending execution of serial killer (and death penalty "volunteer") Michael Ross is continuing in Connecticut.  Howard Bashman at How Appealing has a lot of the newspaper coverage and other materials linked here and here, and the blog Kirby's Reports continues to be the go-to source for legal news and analysis concerning Connecticut's efforts to go forward with the first execution in the Northeast in 40 years.

With all the rapid happenings, I have not been able to keep up with the legal issues in the Ross case.  But I continue to view all the Ross developments as a remarkable object lesson in the symbolic significance of the death penalty.  The two-bit empiricist in me wishes someone would find a way to quantify all the time, money and energy that has been devoted to determining whether and how Michael Ross, an undisputed murderer, will essentially be allowed kill himself at the state's behest.

January 29, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

More powerful Booker work from a district court

Just called to my attention and now appearing on-line is a recent district court opinion, US v Myers, 2005 WL 165314 (S.D. Iowa Jan. 26, 2005) (also available here), which provides broad and thoughtful Booker analysis.  In Myers, US District Judge Robert W. Pratt notes the distinct views of Booker reflected in Judge Adelman's Ranum opinion and Judge Cassell's Wilson ruling and explains:

This Court adopts Judge Adelman's view. To treat the Guidelines as presumptive is to concede the converse, i.e., that any sentence imposed outside the Guideline range would be presumptively unreasonable in the absence of clearly identified reasons. If presumptive, the Guidelines would continue to overshadow the other factors listed in section 3553(a), causing an imbalance in the application of the statute to a particular defendant by making the Guidelines, in effect, still mandatory.

After a long quote from the Ranum opinion noting how the requirements of § 3553(a) can conflict with aspects of the guidelines, Judge Pratt in Myers highlights:

In citing Ranum, this Court does not mean to be unduly harsh about the wisdom contained in the Guidelines, for wisdom is there.  Wisdom, however, also resides in the other statutory sentencing factors, but was not allowed expression under the former mandatory scheme.  Each of the factors enumerated under § 3553(a) is, in reality, an expression of our society's multiple interests in sentencing an individual.

Calling Booker an "an invitation, not to unmoored decision making, but to the type of careful analysis of the evidence that should be considered when depriving a person of his or her liberty," Judge Pratt proceeds to review thoughtfully the purpose factors of § 3553(a) in the context of what seems to be a remarkably minor gun possession case.  And, after finding that an "aberrant behavior" departure under guideline § 5K2.20 was sought by the defendant and not contested by the government, Judge Pratt concludes by explaining why the factors of § 3553(a) make a "term of imprisonment in this case is completely unwarranted," and why he imposes a sentence of probation "to deter others from committing similar acts."

January 29, 2005 in Booker in district courts | Permalink | Comments (2) | TrackBack

January 28, 2005

No news is good news?

I am intrigued, and somewhat pleasantly surprised, about how calm everything seems in the post-Booker federal sentencing world.  Is it possible that Justice Breyer in fact, as Ron Wright and I speculated here, produced a stable outcome with his Booker remedial opinion?  As noted before, we are seeing some tough sentences from the district courts (details here and here), and I wonder if that may be impacting the reactions of other actors and institutions.

I recall that, after Blakely, it took less than two weeks for the Senate Judiciary Committee to convene a hearing to address "Blakely v. Washington and the Future of the Federal Sentencing Guidelines." (Notice here, highlights here and here).   Though I have heard rumors about activity on the Hill, I have not heard anything to suggest hearings are imminent.

Of course, I know that the US Sentencing Commission had an important meeting yesterday, and I am hopeful that we will hear more from that important inside-the-Beltway player before long.  Also, I assume once Alberto Gonzales is confirmed to be AG we are likely to hear more from the all-important Justice Department.  (More on these fronts here.) 

Moreover, it is certainly possible that, here in the ivory tower far outside the Beltway, I am just unaware of all the post-Booker activity in the works.   Though this might be a calm before a coming storm, I am closing another work week again amazed by how dynamic and unpredictable the world of sentencing can be.

January 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Provocative ideas from the defense

In a prior post discussing Burdens of proof and a new due process of sentencing, I highlighted, and tried to build upon, the post by Steve Sady at the Ninth Circuit Blog arguing here that, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing.  I now see that Steve has two more provocative posts on that blog about important post-Booker topics:

Though many of Steve's claims are contestable (and surely would be contested by many prosecutors), they provide important food-for-thought for everyone trying to sort through and develop claims in the post-Booker world.

January 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (4) | TrackBack

More on Booker from the 8th Circuit

The Eighth Circuit won the award last week through its ruling in Coffey (details here) for being the first to circuit court to issue a consequential Booker ruling.  That court puts forth its second notable Booker decision today with US v. Parsons, No. 04-2246 (8th Cir. Jan. 28, 2005) (available here).

In Parsons, the court rejects an effort to seek resentencing in a plea case which included admissions of certain guideline facts.  The defendant after Blakely claimed that he "would never have admitted to the amount of loss attributable to his conduct as stated in his plea agreement if he had known that these factors had to be proven beyond a reasonable doubt."  Here's the court's analysis:

Because Parsons admitted as part of his plea agreement that the amount of loss attributable to him was between $1.5 million and $2.5 million, requiring a 12-level enhancement, that enhancement of his sentence does not violate United States v. Booker, Nos. 04-104/105, 2005 WL 50108 (U.S. Jan. 12, 2005)....

Finally, there would be no merit to an argument that Parsons is entitled to resentencing under advisory Guidelines in light of Booker.  He expressly agreed as part of his plea agreement that he would be sentenced under the Guidelines, that his base offense level would be 6, that he would receive the 12-level amount-of-loss enhancement, that he would receive a 2-level enhancement for more than minimal planning, and that his resulting Guidelines imprisonment range could be as high as 30-37 months. The district court applied the agreed-upon range of 30-37 months in sentencing Parsons to 30 months in prison.

January 28, 2005 in Booker in the Circuits | Permalink | Comments (4) | TrackBack

More interesting tales of tough post-Booker sentencings

Once again, the papers are filled with interesting accounts of federal sentencings in the wake of Booker (some prior stories are recounted in this post).  And, once again, these accounts provide little basis for anyone to fear that federal judges are consistently using their new discretion to "go soft" on federal offenders:

January 28, 2005 in Booker in district courts | Permalink | Comments (3) | TrackBack

January 27, 2005

Browsing the blogsphere, Blakely-free

This afternoon brings a few interesting (Blakely/Booker-free) sentencing stories and posts to be found around the blogsphere:

January 27, 2005 in Criminal Sentences Alternatives, Death Penalty Reforms, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Notable New Jersey Blakely case

I have detailed in posts here and here and elsewhere the interesting recent Blakely developments in New Jersey, and a decision today in NJ v. Anderson, NO. A-3932-03T4 (NJ App. Div. Jan. 27, 2005) (available here) enriches the story.

Anderson is noteworthy for limiting the reach of Blakely by (1) "summarily" rejecting Blakely's claimed applicability to the imposition of consecutive sentences, and (2) affirming a sentence above the presumptive term when "the defendant — although not acknowledging aggravating factors beyond the 'elements' of the offenses  — acknowledged exposure to [enhanced] sentence imposed."  In addition, in a final footnote, the court hinted that the solution to Blakely problems in New Jersey might be a Booker-type remedy.

January 27, 2005 in Blakely in the States | Permalink | Comments (3) | TrackBack

Race and reform

With the exception of a powerful opinion column in the Atlanta Journal-Constitution (discussed here), I have not seen much examination of racial disparities in all the debate over possible responses to Blakely and Booker.  Of course, much of the history of sentencing reform, both in the capital and non-capital arenas, has been influenced by express or implicit concerns about racial disparities and discriminatory decision-making in the criminal justice system.  Moreover, there are many who contend that guideline reforms intended to achieve greater uniformity have, at least in some ways, exacerbated racial disparities.

To its great credit, the US Sentencing Commission's recently released 15-year report, which merits a central place in the debate over any Congressional response to Booker, gives particular attention to racial disparity issues in this chapter. (The full report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)  And today I received a link to another important contribution from The Sentencing Project in the form of a new publication entitled Racial Disparity in Sentencing:  A Review of the Literature

This report, which is sobering reading and can be accessed here, examines the research findings of major studies of racial disparity at both the state and federal level and finds that "while racial dynamics have changed over time, race still exerts an undeniable presence in the sentencing process."  The report also asserts that "evidence of direct discrimination at the federal level is more prominent than at the state level."

January 27, 2005 in Race, Class, and Gender | Permalink | Comments (0) | TrackBack

More on Booker from the 11th Circuit

Pf_reese_pcs Today in this per curiam opinion in US v. Reese, No. No. 03-13117 (11th Cir. Jan. 27, 2005), the Eleventh Circuit vacated its September 2004 decision declining to apply Blakely to the federal guidelines (discussed here).  The brief two-page opinion culminates in this key conclusion:

in light of Booker, we vacate our previous opinion with respect to Reese's challenge to his sentence; we vacate the judgment of the district court with respect to the sentence; and we remand to the district court for resentencing consistent with the Supreme Court opinions in Booker.

The opinion has no additional language to guide the case on remand, and thus it will be up to the district court to pick up the Reese's pieces.  (Sorry, I couldn't resist the pun.)

January 27, 2005 in Booker in the Circuits | Permalink | Comments (3) | TrackBack

Materials for teaching Blakely and Booker

As noted in this post from August, last semester I had the pleasure of figuring out how to teach Blakely as the legal issues unfolded and as I waited (impatiently) for a decision in Booker.  This semester, I suspect criminal law and procedure teacher around the country are again looking for ways to teach Blakely and now Booker in sentencing courses and in standard criminal law and procedure courses.

To aid in this endeavor, I am proud to now be able to offer a 100-page Blakely/Booker special supplement I have produced along with my casebook co-authors Nora Demleitner, Marc Miller and Ron Wright.  Aspen Publishers, the producer of our main text Sentencing Law and Policy: Cases, Statutes and Guidelines, has graciously granted a general permission for any teacher (not just teachers using our sentencing volume or the Miller & Wright Criminal Procedures text) to make use of all or part of this interim supplement for non-commercial purposes until June 1, 2005. Indeed, Aspen has granted a general permission for anyone to make use of the interim supplement for non-commercial purposes in this period. 

You can access the supplement by clicking on the document's cover which appears in the left side-bar.  In addition to edited versions on Blakely and Booker, the supplement includes sections on "Federal Responses to Blakely" and "State Responses to Blakely."  You can also access this supplement, an edited version of Booker, and other sentencing materials at this website supporting our sentencing text.  My co-authors and I hope you find the supplement useful, and we welcome comments and suggestions.

January 27, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

More Booker news reports and editorial praise

Newspaper articles reporting on federal sentencings continue to provide an interesting view of the post-Booker world.  At least based on the stories below, there seems to be little basis for Congress to fear that federal judges are consistently using their new discretion to "go soft" in fraud cases.

Meanwhile, on the editorial pages, we are continuing to see significant expressions of support for the Booker outcome.  Recent editorials praising Booker come from the Minneapolis Star Tribune and the San Antonio Express-News; prior collections of similar pieces can be found here and here and here and here.

January 27, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

January 26, 2005

Preparing for post-Booker action

As detailed in this notice, the US Sentencing Commission has a public meeting scheduled for tomorrow at 10:30 am.  Though the agenda does not mention Booker, I suspect that the decision will be one of the topics of conversation.  Indeed, I am hoping that soon after the meeting the USSC will announce its plans for trying to assess and managing the post-Booker world.  (I have, of course, previously shared some of my ideas and suggestions for the USSC here and here.)

Meanwhile, in other news today from DC, AG nominee Alberto Gonzales has been approved in a 10-8 party line vote by the Senate Judiciary Committee, and he likely will be confirmed next week by the full Senate.  One of the first orders of business for Gonzales will be to help develop and carry out the Justice Department's post-Booker federal sentencing strategies.  I am very eager to see how Gonzales performs in this arena right out of the gates.

January 26, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (1) | TrackBack

A Booker-based pitch for Chief Justice Scalia

A few weeks ago, while we were all still waiting for a decision in Booker, I wondered in this post whether the Booker ruling might impact the Chief Justice sweepstakes.  In that post, I was focused on the role that Justice Thomas might play in the decision, but this Slate essay is now making an interesting pitch for Justice Scalia to become Chief based in part on his opinion in Booker. 

Of course, I would throw Justice Scalia's Blakely opinion into any conversation about these matters, and also encourage review of prior posts on Considering Justices through the criminal justice lens and on Being Antonin Scalia.

January 26, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

More evidence of a new sentencing reform politics

Yesterday I queried in this post whether we might be seeing a "new right" on criminal sentencing issues.  Today I have received another datum suggesting why policy debates about sentencing reform should start to be more nuanced than the old "tough" versus "soft" rhetorical labels.  This datum comes courtesy of the folks at Families Against Mandatory Minimums, who commissioned the Eagleton Center for Public Interest Polling at Rutgers University to poll New Jerseyans about drug sentencing reform.  The results suggest little support for mandatory minimum sentencing in cases involving  low-level non-violent drug offenders.

FAMM has all the highlights of the poll here, including this fact sheet and this press release.  The full report from the Eagleton Institute is available here and makes for interesting reading.  Catching my eye were these passages:

When asked what they think would be the more effective approach for dealing with low-level non-violent drug offenders, New Jerseyans choose mandatory drug treatment and community service (69%) over mandatory prison time (21%) by a greater than 3 to 1 margin.  Preference for this type of sentencing for low-level drug offenders is similar across all demographic groups in the state....

[F]ully 4-in-5 New Jerseyans (80%) support using sentences such as mandatory treatment and community service for low-level, nonviolent drug offenders if it will reduce the amount of money New Jersey spends on prisons and the corrections system.

Among other insights I draw from these materials is a renewed belief that the US Sentencing Commission's data collection post-Booker ought to differentiate between violent and non-violent cases (as well as between first offenders and repeated offenders).  I would expect, as I suggested before here, that we will see a lot more judges following the (advisory) guidelines in violent repeat-offender cases, and that general federal sentencing statistics that blur categories of cases will not give us an accurate picture of what post-Booker reforms may be needed (or not needed).

January 26, 2005 in Legislative Reactions to Booker and Blakely, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

A Booker laboratory of the district courts?

The comments here concerning Chief Judge Holmes' intriguing opinion in Barkley (basics here) have been none too kind.  Though the opinion is a fascinating read, I do think Barkley could have better defended the decision to Blakely-ize the guidelines as Chief Judge Holmes is obviously wont to do. 

I think the outcome in Barkley would have been on more solid ground if it had adopted and built upon some of the ideas in Judge Cassell's opinion in Wilson (basics here, commentary here and here).  As the commentors note, the opinion currently reads as a disagreement with the Breyer remedial majority and as an adoption of the dissenters' proposed remedy.  However, I think Barkley could have said that to serve the uniformity principles championed by Justice Breyer, as well as to serve all the other principles codified in 3553(a) (including the command "to promote respect for the law"), a Blakely-ized system giving the guidelines very heavy weight will be more effective than a system built on judicial fact-finding and discretionary judgments.  In other words, rather than suggesting in Barkley that the dissenters had a better remedy, I think Chief Judge Holmes could have asserted that, even following Justice Breyer's mandates and instructions in Booker, he believes a Blakely-ized system will better serve both the Court's and Congress's stated goals.

That all said, I find very interesting Barkley's effort to justify Blakely-ization based on the importance of showcasing this system to provide insights and information to the US Sentencing Commission and Congress as it contemplates post-Booker reforms.  The idea brings to mind, of course, Justice Brandeis' advocacy for a "laboratory" of the states in his famed New State Ice opinion.  Especially since, as detailed in this speech, Justice Breyer is an obvious fan of Justice Brandeis, perhaps Justice Breyer would not be all that troubled by what Chief Judge Holmes is trying to do in Barkley.

Of course, a more important and immediate question right now is whether the Justice Department is troubled by what Chief Judge Holmes is trying to do in Barkley.  I imagine that Barkely is the kind of opinion that could prompt the government to seek mandamus in the Tenth Circuit.  But whether DOJ wants to go through that effort, and how the Tenth Circuit might respond, are all very interesting questions.

January 26, 2005 in Blakely Commentary and News, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Major unpublished Booker circuit court rulings

Though I have already posted important Booker decisions from the Fourth Circuit, the Eighth Circuit and the Eleventh Circuit, I was surprised and a bit troubled to discover on-line a few consequential "unpublished" circuit court post-Booker dispositions.

From the Eighth Circuit, for example, the court in US v. Burgess, 2005 WL 124523 (8th Cir. Jan. 24, 2005), remands a pro se appellant's case for resentencing in light of Booker.  Given the circuit's ruling last week in Coffey (discussed here), I suppose this quick unpublished disposition is not a big deal.

But a very big deal seems to be unpublished rulings from the Sixth Circuit in US v. Davis, 2005 WL 130154 (6th Cir. Jan 21, 2005), and from the Ninth Circuit in US v. Tanner, 2005 U.S. App. LEXIS 1215 (9th Cir. Jan. 25, 2005).  I'll discuss the Ninth Circuit's ruling first, because it is a more peculiar and perhaps distressing.

In Ninth Circuit's ruling in Tanner: In this case, after the court summarily rejects various challenges to the defendant's conviction, the Ninth Circuit delivers this oblique paragraph addressing sentencing issues:

Tanner argues that the evidence failed to support the upward adjustment for his being an organizer or leader, but the judge obviously had plenty of evidence from the lengthy trial over which he had presided in addition to the presentence report, from which to draw this conclusion.  The government cross appeals on the downward departure, denial of an upward adjustment for obstruction of justice, and grouping decisions the district court made, and before United States v. Booker came down, this issue would have been difficult.  Now that the Sentencing Guidelines are merely guidelines channeling the reasonable exercise of the district court's discretion, we cannot say, in light of the district judge's careful consideration of both the guidelines and the individual circumstances of this case, that the sentencing decisions were unreasonable.

Because Tanner is unpublished and thus non-precedential, I suppose we need not spend a lot of time thinking through what the Ninth Circuit is saying directly or indirectly about the nature of post-Booker reasonableness review.  But this analysis seems much too cursory and a poor way to set out the Circuit's first words on Booker (even if they are "unpublished" words).

The Sixth Circuit's ruling in Davis: The outcome in this case is less concerning, but the unpublished status seems strange given that Davis includes some extended discussion of Booker, and of the nature of post-Booker sentencing and appellate review.  (The main pre-Booker sentencing issue in Davis case is legally complicated, as it concerns whether the district court had applied the right edition of the guidelines and whether any error was plain.) 

Because it is officially unpublished, Davis does not establish binding Sixth Circuit precedent, even though the decision seems to set out a few important circuit principles for post-Booker appellate review.  Particularly noteworthy in the Davis disposition is a footnote which states:

Defendant did not raise a Sixth Amendment challenge to the amount of loss calculation before the district court.... [But] Defendant filed updated citations to this Court prior to oral argument [and] both Defendant and the government debated the application of Blakely to the district court's amount of loss calculation at oral argument.  We are sufficiently satisfied that Defendant has preserved an objection to his sentence on Blakely grounds.

January 26, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Consequential state sentencing rulings from each coast

Though I am still awaiting major rulings from state supreme courts on Blakely issues, in the meantime I can report on a few significant state supreme court rulings on other sentencing issues.

From California, as detailed in this LA Times article, a divided state supreme court has approved the review procedures being employed by the state's parole board which give particular focus to the gravity of the offender's crime.  The ruling in In re Dannenberg, S111029 (Cal. Jan. 24, 2005), can be accessed here and is the subject of critical commentary by TalkLeft here.

From Delaware, according to this AP story, "nearly 200 inmates serving time for murder, rape and kidnapping will be eligible for immediate release following a ruling by the Delaware Supreme Court that some life sentences should be considered 45-year terms."  The ruling in State v. Evans, No. 88K01678DI (Del. Nov. 23, 2005) (available here) was actually handed down two months ago, but this past week the state Supreme Court refused a bid for reconsideration.  The story is making news now because on Tuesday, according to the AP story, "the state House unanimously passed a bill declaring the ruling 'null and void,' although lawmakers acknowledged the measure may violate the separation of powers."

January 26, 2005 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Intriguing post-Booker state Blakely realities

Interestingly, and perhaps not surprisingly, there has been a lot of post-Booker state Blakely activity, but it appears that the Booker ruling has not provided much help to states in sorting through Blakely issues.  I now see on-line over 75 state Blakely decisions in just the two weeks since Booker was handed down, but only a few unpublished cases from California have even mentioned Booker. (And this is despite the fact that there have recently been major intermediate court Blakely rulings in Arizona, California, Indiana, Minnesota, Tennessee and Washington.)

Of course, as detailed in a California memo linked here, state actors may still be drawing some guidance from Booker even if though the ruling is not appearing in state court decisions.  Indeed, I have heard reports that some of the state supreme courts now considering Blakely cases have asked for supplemental briefing on Booker

In addition, as detailed here, at least one state (Arkansas) was prompted by Booker to consider tweaking its sentencing laws to try to avoid constitutional problems.  However, this Arkansas report about legislative development indicates that "the House Judiciary Committee on Tuesday defeated House Bill 1176 by Rep. Timothy Hutchinson, R-Lowell, that would have made the state's sentencing guidelines voluntary."

Relatedly, this week there is this news from Alaska concerning that state's proposed Blakely fix.  According to the article, the proposed fix, which in practice seems likely to increase sentences for certain offenders, is moving swiftly through the Alaska legislature.

January 26, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack