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:
- This article from Kansas City quotes US District Judge Fernando Gaitan calling the guidelines "fair and reasonable" but also "mechanical" and "not always appropriate" in the course of impose a year and a day prison term in a theft case. (The guidelines called for 18-24 months, though the defense was urging probation.)
- This article from Louisiana reports on the sentencings of three defendants involved in a major drug ring. The kingpin received life imprisonment from US District Judge Tucker L. Melançon, but his wife and father were sentenced to the statutory mandatory minimum of 10 years' imprisonment rather than the guideline sentences of around 20 years.
- This article from Seattle reports on the sentencing of the 19-year-old kid who created a variant of the Blaster worm computer virus. The article suggests this 18 month sentence imposed was at the bottom of the recommended guideline range, but it also indicates that prosecutors were urging a longer sentence.
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.
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 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.
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:
- Concerning the "prior conviction" exception, Steve argues in this post that "statutes that increase maximums based on prior convictions ... should be re-interpreted to require pleading and proof to a jury beyond a reasonable doubt under the doctrine of constitutional avoidance."
- Concerning Blakely/Booker retroactivity, Steve in this post (which builds on Judge Panner's retroactivity analysis in Seigelbaum) constructs an argument that the "Supreme Court has already made the determinations that necessarily result in retroactivity."
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.
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.
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:
- This article from Pennsylvania details at length the sentencing by US District Judge James Knoll Gardner in a fraud case. According to the article, the applicable guideline range was calculated to be 46-57 months imprisonment, and the federal prosecutor was urging a sentence at the top of the range and the defense was urging a sentence at the bottom. But Judge Gardner went his own way and imposed a sentence of 84 months! (Of course, as detailed in this post, I am not sure due process principles readily permit such a post-Booker sentence increase based on pre-Booker conduct.)
- Similarly, this article from Colorado reports on a fraud sentencing in which the guidelines apparently provided for a maximum of 41 months, but the federal judge imposed a sentence of 60 months.
- This article from Illinois reports on a bank fraud defendant being sentenced to 15 months' imprisonment by US District Court Judge Michael McCuskey. According to the article, 15 months was the sentence recommended by the federal prosecutor whereas the defense was urging a sentence of only 4 months.
- This article about a New Jersey fraud case reports on significant prison terms handed out by US District Judge Harold Ackerman to many defendants, and also indicates that one defendant was given a sentence "10 months longer than the maximum suggested by federal sentencing guidelines."
- And this article about another New Jersey fraud case indicates that US District Judge William Walls "brushed aside the large number of letters written by [the defendants] friends, business associates and employees that requested leniency" to impose a guideline sentence of 24 months' imprisonment.
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:
- From Kirby's Report here comes news that the Supreme Court, in a 5-4 vote, has lifted the stay preventing Connecticut from executing serial killer Michael Ross. This recent post on compelling capital cases provides some background.
- From How Appealing here is a report and link on a Ninth Circuit ruling that a convicted sex offender's rehabilitative treatment cannot require self-incrimination about sexual history.
- And Grits for Breakfast here picks up on my prior post asking about a "new right" supporting sentencing reform to explains in detail how, in Texas, the right's embrace of sentencing reform is "part pragmatism, part ideology, and part politics."
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.
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."
More on Booker from the 11th Circuit
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.)
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.
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.
- This article from Pittsburgh reports that Senior US District Judge Alan Bloch imposed a sentence of 37 months on a former police officer convicted of theft and fraud, which the article asserts was "the maximum under sentencing guidelines." The article details that the defense made a potent case for mitigation based on the officer's family ties, distinguished prior service, and the risks of prison abuse, but apparently to no avail.
- This article from Kentucky details the sentencings of two defendants convicted of bank fraud, reporting that "US District Judge William S. Bertelsman ... listened patiently Tuesday to the convicted bank frauds plea for probation with no jail time, and then he sentenced each to more than four years in federal prison."
- This article from Michigan discusses a 46-month prison term given to John Gardiner, the 71-year-old former superintendent of East Detroit Public Schools convicted on corruption charges. The article suggests the calculated guideline range was 57-71 months, but also notes that Gardiner had asked US District Judge Patrick Duggan to impose a sentence of only probation and community service.
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 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.
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.
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.
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.
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."
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.
Compelling capital contrasts
Though Booker/Blakely stories have the bulk of my attention, the death penalty developments this month, as I foreshadowed here, are remarkable, and the contrasting capital sentencing dramas of the last few days alone could merit dozens of blog posts:
- In Connecticut, as thoroughly covered by Kirby's Reports here and here, the Second Circuit upheld the stay issued by Chief US District Judge Robert N. Chatigny of the planned execution of serial killer Michael Ross. This Newsday article provides the latest news on the case (as of this writing).
- In New York, as detailed in articles here and here, the state Assembly is hearing testimony concerning whether and how to fix flaws in the state's capital punishment statute.
- In Ohio, as detailed in this article, the Sixth Circuit yesterday granted habeas relief to a death row defendant on he grounds of ineffective assistance of counsel. TalkLeft has potent posts on the ruling here and here, and How Appealing has coverage and a link to the opinion here.
- In Georgia and Texas, however, the machinery of death keeps humming along with little fanfare or attention. Both states had executions Tuesday night. This article provides the basic details on Georgia's execution of Timothy Carr, the 37th person put to death by Georgia in the modern death penalty era. This article provides the basic details on Texas's execution of Troy Kunkle, the 338th person put to death by Georgia in the modern death penalty era.
January 25, 2005
Is there a "new right" on criminal sentencing issues?
I have noted in previous posts the interesting new reality that now Republicans, far more than Democrats, are promoting what might be called progressive sentencing reform. Recall that, as detailed here, it was Republican Senators on the Senate Judiciary Committee who were questioning AG nominee Alberto Gonzales about prison reform and rehabilitation. (Kansas Sen. Brownback spoke of prison reform as "a compassionate conservative topic"; Oklahoma Sen. Coburn said, "As a physician, I believe that we ought to be doing drug treatment rather than incarceration."; Pennsylvania Sen. Specter spoke of the importance of providing some prisoners with "literacy training and job training and drug rehabilitation.")
Moreover, as noted previously here and here, Republicans Governors have often led efforts in many states to cut back on harsh mandatory sentences and to expand treatment-centered alternatives to incarceration. (Recall, as just one recent example detailed in this LA Times article, that Republican Governor Arnold Schwarzenegger has announced a plan for California's prisons to "emphasize rehabilitation, marking a shift away from an era when punishment was the overriding mission.")
Part of what makes these issues so interesting and dynamic is that sentencing reform (especially in the federal system) can appeal in various ways to different wings of the Republican party. Republicans who favor small government (or at least small federal government) might well be distressed by the size and power of the federal criminal justice machine. Consider in this vein the advocacy of Timothy Lynch, director of the Cato Institute's Project on Criminal Justice, in this piece about Booker which appeared in Legal Times yesterday. Lynch urges President Bush and Congress in response to Booker "to consult the long-term, strategic vision that can be found in the legal opinions of Justices Antonin Scalia and Clarence Thomas." For Lynch this means, inter alia, that "Congress should jettison the real-offense sentencing paradigm and move to a convicted-offense model" and that "President Bush and Congress should appoint a blue-ribbon commission with a mandate to propose a rollback of the federal criminal code."
Meanwhile, for the religious wing of the Republican party, concepts of redemption and forgiveness have often made religion a progressive criminal justice force in areas ranging from advocating abolition of the death penalty to faith-based prison programming. (I touched on some of these issues in this prior post.) Consider in this vein the advocacy of Mark Early, the President of the Prison Fellowship. In this commentary praising Booker, Early asserts, based on his experiences counseling prisoners, that the federal guidelines "have not produced justice, only bitterness." He likewise calls upon Congress to do better and says "Christians, who understand that doing justice is a matter of wisdom, not fear, should give their representatives the permission they need to resist political posturing and undo past mistakes. Then, perhaps the fairness and wisdom of our system will also be beyond any reasonable doubt."
Of course, the coming debate over the post-Booker future of the federal sentencing system will be a dramatic and important test of whether there really is a new political order in the arena of sentencing reform. Perhaps Blakely and Booker, in the votes of Justices Scalia and Thomas, can be seen as an example of this "new right" in the judicial branch. It will be interesting to see if other examples may emerge in the legislative and executive branches in the days ahead.
More stunning post-Booker work from a district court
As I noted in this post after reading Judge Cassell in Wilson (basics here, commentary here and here), the new federal sentencing structure will be really built from the ground up, opinion by opinion. And today I am pleased to be able to share (downloadable below) the contribution of ND Okla Chief Judge Sven Erik Holmes, who has entered an order in US v. Barkley, 04-CR-119-H (ND Ok. Jan. 24, 2005), addressing his view of sentencing post-Booker.
Chief Judge Holmes, as some may recall, did important pathbreaking work post-Blakely in US v. O'Daniel (details here and commentary here). And we get more of the same in Barkley, as Chief Judge Holmes concludes, in answer to a question I raised in this post, that "pursuant to the discretion granted in Booker, courts may constitutionally apply the Guidelines if the manner of application fully protects the Sixth Amendment rights articulated in Blakely.... [And] law, policy, and common sense dictate that this Court should exercise its discretion by strictly applying in all cases the Guidelines, modified to satisfy Blakely."
In other words, Chief Judge Holmes has decided in a remarkable opinion in Barkley that the discretion afforded by Justice Breyer's remedial opinion for the majority in Booker allows him to adopt the remedy proposed by Justices Stevens and Scalia in their remedial dissents! I will need a lot of time to take in this opinion, but I especially want to highlight that Chief Judge Holmes supports his ruling by suggesting that "when Congress undertakes to develop a new sentencing system in accordance with Blakely, there will be a body of judicial experience to inform the development of these policies."
Lots of commentary soon to follow on this fascinating and important ruling. For now, let me just quote in full the Barkley opinion's introductory passage:
[T]he Court finds as follows: (i) under Booker, the Sixth Amendment rights set forth in Blakely apply to the Guidelines; (ii) pursuant to the discretion granted in Booker, courts may constitutionally apply the Guidelines if the manner of application fully protects the Sixth Amendment rights articulated in Blakely; (iii) law, policy, and common sense dictate that this Court should exercise its discretion by strictly applying in all cases the Guidelines, modified to satisfy Blakely in the manner described more fully below; and (iv) in the instant case, the Guidelines should be applied consistent with the principles described in Blakely and Booker, and as a result sentencing Defendant under the Guidelines here will be constitutional.
Notable post-Booker decision from Judge Hornby
The District of Maine has been setting the pace with post-Booker rulings, but with everything else going on I have not had a chance to post about the rulings in Quirion v. US, 2005 WL 83832 (D. Me. Jan. 14, 2005) (recommending denial of habeas motion), Stevens v. US, 2005 WL 102958 (D. Me. Jan. 18, 2005) (same), Hamlin v. US, 2005 WL 102959 (D. Me. Jan. 19, 2005) (same), or In re Beal, 2005 WL 112402 (D. Me. Jan. 19, 2005) (denying downward departure while noting "although not bound to apply the Guidelines, the sentencing court must 'consult those Guidelines and take them into account when sentencing,'" but not imposing a specific sentence).
But meriting detailed discussion is Judge D. Brock Hornby's ruling in US v. Jones, 2005 WL 121730 (D. Me. Jan 21, 2005), which I just found on-line. Judge Hornby in Jones is sentencing a mentally impaired first-offender for illegal gun possession. Similar to the work of his colleague Judge Woodcock in the Beal case noted above, Judge Hornby starts his analysis by running through a traditional departure analysis using pre-Booker circuit precedent to conclude "a Guidelines-type departure is not appropriate here" even though "the defendant, the government and Probation all ask me to depart 1 level under the Guidelines to a Zone C sentence, because it affords greater flexibility in the terms of confinement."
Then, Judge Hornby turns to an analysis of "whether to follow the Guidelines." In this post-Booker analysis, Judge Hornby finds:
If I were in Zone C of the Guideline sentencing provisions, I could implement a so-called split sentence.... Together with other restrictive terms (continued mental health treatment, medication maintenance, abstinence from drugs and alcohol, prohibited association with others consuming drugs or alcohol, prohibited possession of any weapons, and permitting the supervising officer to search his residence for violations), I find that such a sentence would contribute to both the mental health of this defendant and the protection of the community.
Following Booker, I review the sentencing factors in 18 U.S.C. § 3553(a) in determining whether to apply the now advisory Guidelines. One factor listed there is "the need for the sentence imposed--... (D) to provide the defendant with needed ... medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2)(D). The sentence I contemplate here would accomplish that better than the Guideline sentence. Another listed factor is the need "to protect the public from further crimes of the defendant." Id. § 3553(a)(2)(C). I conclude that the marginal protection to the public afforded by a few more months in prison is more than offset by the increased risk upon this defendant's later release after the interruption of his treatment and other regimens. The sentence I contemplate here will in all likelihood better protect the public over the long term than the Guideline sentence. Section 3553(a)(1) instructs me to consider "the nature and circumstances of the offense and the history and characteristics of the defendant." I have already addressed this in large part, but I also observe that here it is undisputed that the defendant would have rid himself of his firearms after his first hospitalization had he known that he could no longer legally possess them. Addressing the other section 3553(a) factors, I conclude that my sentence will adequately reflect the offense seriousness, promote respect for the law, provide just punishment and afford adequate deterrence. 18 U.S.C. § 3553(a)(1)(A),(B). (Sentencing disparity [FN5] and restitution are not at issue here. Id. § 3553(a)(6), (7).)
[FN5] I recognize that sentencing disparity is theoretically always at issue since one of the goals of sentencing is to impose similar punishments upon similarly situated defendants. But the sentence I impose here will not materially impede achievement of that goal.
January 24, 2005
So many cases, so much time
The Supreme Court's seemingly pro forma remands of 450 cases in light of Booker (noted here) has prompted a number of newspapers to discuss high-profile local cases in that mix. Just some of the stories of this sort come from Boston, Kansas City, and Maine and New Hampshire, and general coverage comes from this AP story. A similar piece discussing the possible impact of Booker with a focus on local cases comes from the Cincinnati Post.
Morning update: Additional thoughtful coverage of the remands can be found this morning in the Washington Post.
Death penalty news of note
In Connecticut, as thoroughly covered by Kirby's Reports here and here and in articles here and here, the planned execution of serial killer Michael Ross, scheduled for 2am this Wednesday, has been stayed by Chief US District Judge Robert N. Chatigny so he can hear arguments on Ross' competency. Ross is a "volunteer" who has consistently sought to have his execution go forward, but that fact has not stopped a stunning amount of legal wrangling over what would be Connecticut's first execution of the modern death penalty era.
In Kansas, as this article details, the state's Senate Judiciary Committee is debating whether to move forward on a fix to the state's death penalty procedures — which is necessary because of the Kansas Supreme Court's Marsh decision last month (discussed here, commentary here and here).
Judge Panner works through Booker's retroactivity
In an opinion available for download below, US v. Siegelbaum, CR No. 02-179-01-PA (D. Or. Jan. 24, 2005), Senior US District Judge Owen Panner, previously famed for having found the federal guidelines structurally invalid due to the Feeney Amendment (details here), works thoughtfully through Booker's potential retroactivity. According to the summary of the decision I received from a reader, Judge Panner concluded that:
1. The district court may hear a first-time § 2255 motion now, without waiting for the Supreme Court to decide whether Blakely/Booker are retroactive. [Whether a successive § 2255 motion may be heard now is a different question, governed by different statutory language].
2. The remedy announced in Blakely/Booker (advisory guidelines) must not be confused with the constitutional violation (in specified circumstances, sentence may be enhanced only if essential facts are admitted by defendant or found by jury applying reasonable doubt standard). The latter is the "rule" for retroactivity purposes.
3. The rule announced in Blakely/Booker is a new procedural rule.
4. Existing precedent does not definitively answer whether this new rule should be applied retroactively. No inference can be drawn from the failure to discuss this issue in Booker, as the cases before the Court involved direct appeals. Shriro held that a misallocation of factfinding responsibility (judge versus jury) does not warrant retroactive application, but did not decide whether application of a preponderance standard, instead of a reasonable doubt standard, is an error that requires retroactive relief. Three pre-Teague cases suggest it may be, because the lesser standard of proof can significantly affect factfinding accuracy and society's confidence in the result.
5. Even if Blakely/Booker were entitled to retroactive application, Siegelbaum is not entitled to relief. The principles animating the retroactivity analysis would require that relief be limited to persons presently serving a sentence that was enhanced on the basis of contested facts not found beyond a reasonable doubt or admitted as part of the plea bargain. Only if a defendant actually disputed the facts that resulted in the sentence enhancement, and the court decided the matter against him, can the defendant show that he may have been prejudiced by application of the wrong standard of proof. Even then, a defendant would not necessarily be entitled to a reduced sentence. Arguably, he is entitled only to have the sentencing facts adjudicated under the proper standard of proof. Such questions must await another day, as Siegelbaum's petition can be resolved on other grounds.
6. Siegelbaum's guidelines range was enhanced 15 levels above the base offense level of conviction. However, he never contested the sentence enhancements, or the facts on which those enhancements were premised. He even stipulated to the sentence that was imposed. In return, the government agreed to dismiss twelve other counts against him, and to forego bringing additional charges. Siegelbaum has suffered no injustice. He received the sentence for which he bargained. Siegelbaum is not entitled to relief.
January 24, 2005 in Apprendi / Blakely Retroactivity , Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (11) | TrackBack
The Fourth Circuit speaks on Booker!
After a seemingly calm day, the circuit action has cranked up again. Thanks to helpful readers, I now can link to US v. Hughes, No. 03-4172 (4th Cir. Jan. 24, 2005) (available here), in which the Fourth Circuit, per Judge (and former US Sentencing Commission Chair) William W. Wilkins, finds "plain error in sentencing" and chooses to "exercise our discretion to notice the error, vacate the sentence, and remand to the district court for resentencing consistent with the remedial scheme set forth in Justice Breyer's opinion for the Court in Booker."
The Hughes decision has a lot of important language and dicta on remedial issues (some tucked into footnotes). I will highlight here some language that catches my eye, and perhaps readers can add more:
Booker wrought a major change in how federal sentencing is to be conducted. As the law now stands, sentencing courts are no longer bound by the ranges prescribed by the guidelines. As long as a sentence falls within the statutorily prescribed range, the sentence is now reviewable only for reasonableness. Under the record before us, to leave standing this sentence imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity or public reputation of judicial proceedings. We therefore exercise our discretion to correct this plain error.[FN 8]
[FN 8] In determining whether the exercise of our discretion is warranted, it is not enough for us to say that the sentence imposed by the district court is reasonable irrespective of the error. The fact remains that a sentence has yet to be imposed under a regime in which the guidelines are treated as advisory. To leave standing this sentence simply because it may happen to fall within the range of reasonableness unquestionably impugns the fairness, integrity, or public reputation of judicial proceedings. Indeed, the determination of reasonableness depends not only on an evaluation of the actual sentence imposed but also the method employed in determining it.
Moreover, declining to notice the error on the basis that the sentence actually imposed is reasonable would be tantamount to performing the sentencing function ourselves. This is so because the district court was never called upon to impose a sentence in the exercise of its discretion. That the particular sentence imposed here might be reasonable is not to say that the district court, now vested with broader sentencing discretion, could not have imposed a different sentence that might also have been reasonable. We simply do not know how the district court would have sentenced Hughes had it been operating under the regime established by Booker.
Interesting 2d Circuit (non-Booker) ruling with choice dicta
With thanks to How Appealing for the tip, I can report on an interesting ruling today (by a peculiar five-judge panel due to consolidated cases) from the Second Circuit. In US v. Alacantara, 02-1010 (2d Cir. Jan. 24, 2005)(available here), the Court finds problematic a district judge's decision to accept a guilty plea and impose a criminal sentence in her robing room.
The decision in Alacantara seems unlikely to impact many cases. But the following dicta from the Court, used to justify why the "public and press have a qualified First Amendment right of access to plea and sentencing proceedings," seems noteworthy:
A sentencing proceeding is a solemn occasion at which the judge has the weighty duty of determining the fate of another human being. A transcript of the proceeding does not convey the impact that the judge's words and actions have on the defendant and any friends or family members present. Furthermore, the ability to see the application of sentencing laws in person is important to an informed public debate over these laws. Observing the effect of laws that expand or contract the discretion of judges in imposing sentences in individual cases may provide a valuable perspective.
Today's SCOTUS action
The fine folks at SCOTUS blog have all the highlights on today's work by the Supreme Court. The one sentencing opinion of note is a per curiam reversal in Bell v. Cone, 04-294 (S. Ct. Jan. 24, 2005) of a grant of habeas by the Sixth Circuit in a Tennessee capital case. The opinion for the Court (which includes an interesting Ring footnote) is available here, and a one-page clarifying concurrence by Justice Ginsburg (joined by Justices Souter and Breyer) is here. (The Court per curiam also dismissed a writ of certiorari as improvidently granted in the capital case of Howell v. Mississippi (available here).)
In addition, as detailed here by SCOTUS blog, in "87 pages of orders, the Court summarily disposed of nearly 450 cases that had been held for the ruling on the constitutionality of the federal Sentencing Guideline. Lower courts were told to look again at the cases in light of the Court's ruling in the Booker/Fanfan cases." And, as detailed here, "the Court dismissed the Sentencing Guidelines question certified by the U.S. Court of Appeals for the Second Circuit in No. 04-59, U.S. v. Penaranda."
Finally, according to this post, it seems the Supreme Court will not be issuing any more opinions for nearly a month. Thus, it will be late February, at the earliest, before we see a decision in Roper v. Simmons, the juvenile death penalty case, or Shepard v. US, the criminal history case.
More Booker news, commentary and anecdotes
Yet again, this morning brings Booker pieces filled with commentary and anecdotes about the new look of federal sentencing. (In case you spent all weekend shoveling snow, links to weekend stories are here and here.)
- This article from North Carolina reports on a drug sentencing in which US District Court Judge Louise Flanagan followed the guidelines and also discusses what may and may not change in local federal sentencing after Booker.
- This article from Florida explores a particular case, and this article from Kentucky talks to a particular judge, for post-Booker perspective on federal sentencing.
- The Yale Daily News has this Booker commentary, and TalkLeft has an interesting post with commentary here on a great Booker-Feeney piece from law.com that I previously linked.
And, as I stressed in recent posts here and here, the state Blakely story continues to intrigue. Proof today comes in this story from Alaska discussing a "Blakely fix" in the state legislature which "will give judges more discretion in sentencing offenders of serious crimes."
UPDATE: Thanks to Howard at How Appealing, I see Stuart Taylor has this commentary on Booker at the National Journal. I find particularly amusing (and fitting) the piece's opening paragraph about our new bouncing baby federal sentencing system:
The birthing process was protracted, ugly, and unprincipled. But the baby doesn't look as bad as expected. And it may do OK unless it's strangled in its crib by Congress or abused by the judiciary.
Are circuits overwhelmed by, or dickering over, Booker?
One fascinating aspect of the post-Blakely, pre-Booker federal sentencing world was watching the federal circuits approach legal issues and legal uncertainty in remarkably different ways. And with the post-Booker circuit action now getting started (details here and here) and likely to continue this week, it will be interesting to see how different circuits handle both "pipeline" and future federal sentencing cases.
Though Justice Breyer said in Booker that appellate review would enhance uniformity, I expect we may see some circuit splits in the weeks ahead at least on "smaller" questions like plain error, waiver, harmless error, indictment practices, etc. Moreover, since, as detailed here, soon after Blakely there was a five-way circuit split on the basic question of Blakely's applicability to the federal guidelines, we may also see some notable variation on the basic issue of what "reasonableness review" means.
An interesting and important backdrop to these matters concerns the practical dynamics of circuit court decision-making. First, there is good reason to think the circuits are already a bit overwhelmed by the work in front of them. (Evidence here comes from last week's Second Circuit order halting supplemental briefing and a similar order making the rounds in the Ninth Circuit which states "Pending this court's consideration of the applicability of the Supreme Court's decisions in Booker/Fanfan to pending cases, counsel are directed not to file any supplemental materials or motions, including Rule 28(j) letters, unless specifically ordered to do so by this Court.")
Second, federal circuit courts are large multi-judge institutions which typically make decisions in three-judge panels that are not always representative of the entire circuit. Recalling that we saw interesting and rapid en banc action in some circuits after Blakely, I am wondering whether efforts are now afoot within circuit courts to try to speak to certain major Booker issues with a collective voice from the outset.
January 23, 2005
A Booker week in review and preview
I predicted here that last week would be dramatic in the sentencing world, and I was not disappointed. Judge Adelman's notable decision in Ranum (basics here, commentary here and here) probably was the week's highlight, but also noteworthy was the start of Booker circuit action (details here and here), and the prospect of more soon. (Collected commentary on all the exciting Booker action of the last two weeks can be found here and here and here and here.)
I suspect this coming week should be exciting as other branches start jumping into the post-Booker act. With the inauguration in the books, the inside-the-Beltway folks are likely to get to work on the federal sentencing system. Especially since I surmise most federal judges are pleased with the outcome in Booker, I will be particularly interested in whether, as I queried here two months ago, federal judges will engage in the coming policy debate over the future of federal sentencing.
As suggested before here, the Justice Department's views concerning the post-Booker shape of federal sentencing will be most critical in the coming policy debate. In this regard, it bears remembering that making the guidelines advisory was the remedy strenuously advocated by DOJ if Blakely was to be applied to the federal system (though I wondered at length here a few months ago whether DOJ would really like an advisory guidelines world).
Finally, speaking of DOJ, I have now heard from various sources that Main Justice has issued official guidance about Booker to prosecutors in the field. I have not yet seen any official DOJ post-Booker guidance (though letter briefs posted here and here reveal the basic contours of its litigation strategy). I am hopeful that, in the interests of justice and to serve the goals of honesty, consistency and transparency in sentencing, the Justice Department will make public ASAP its policies and practices in the wake of Booker.
UPDATE: And I forgot to mention that, according to the SCOTUS Blog here, the Supreme Court will "issue an order list and one or more opinions on Monday." Would it be too much to ask for a decision in Shepard to clear up the critical, and still confusing, "prior conviction" exception?
Sentencing stories around the blogsphere
A number of blogs have a number of sentencing items of interest today:
- Drawing on this interesting article from the Wisconsin State Journal, TalkLeft has this notable post on politics and sentencing reform.
- Showing again his super-human collection abilities, Howard Bashman at How Appealing has assembled here 15 articles and commentaries relating to the planned execution in Connecticut of serial killer Michael Ross.
- Marking a telling contrast from the story in the northeast, Grits for Breakfast his this commentary about the apparent inefficacy of the death penalty as a deterrent in Texas.
Blakely news and Booker insights from the states
Through a recent series of posts (here and here and here), I have been trying to keep the spotlight on the state Blakely story even though there is so much happening on the federal front. Fortunately, there are terrific lawyers working on Blakely issues in particular states who make it much easier for me to keep track of state developments.
For example, in California, the First District Appellate Project continues to do an amazing job tracking Blakely in California at this site. And now available from FDAP is this fantastic memo from J. Bradley O'Connell entitled "Blakely and Booker in California: the Next Generation." Though this detailed 15-page memo will be of most interest to California lawyers, its discussion of matters like the prior conviction exception and harmless error should be of interest to all lawyers (but not Star Trek fans) trying to figure out Booker and litigating Blakely issues nationwide.
Similarly, from Tennessee, I have received an interesting report via e-mail from self-described country lawyer David Raybin, which he entitled "Tennessee Blakely Activity: Music to My Ears." Here is that report:
As of January 22, 2005 Blakely activity in Tennessee is as follows: We have a presumptive sentencing scheme. Our intermediate appellate court has held that — except for prior convictions —no enhancement factor can apply and thus the defendant should receive the presumptive sentence in each range. Our sentences are pretty stout anyway so it is not too much of a problem. Our Supreme Court heard expedited arguments in a Blakely-type case in January. Supplemental briefs are to be filed around Valentine's day. State v Gomez, 2004 WL 305787 (Tenn.Crim.App.), appeal granted Oct. 4, 2004. (I represent a co-defendant in a trailing appeal).
Meanwhile, the Governor’s Commission — I am serving as an adviser — has a meeting on February 4, 2005 to formulate our final recommendation for remedial legislation. We are down to: (1) a totally discretionary structure — what I call "free fall" — (2) a bifurcated jury structure — which some judges oppose because of the extra time for the jury, and (3) an "advisory" guidelines system with some fairly strong guidelines — which the law professors are eying to see if it is Booker-compliant. Our superb Chairperson, Judge Barbara Haynes is politically savvy — her husband is a State Senator — so I think we will have unanimity as to which road to take. Our various drafts are not unmindful of retroactively and "pipeline" application issues, something I notice that other states have not always addressed in their legislative proposals. Stay tuned.
Sunday morning Booker commentary and anecdotes
The Sunday newspapers bring another wave of praise for Booker in editorials and a bit more news about the look of the post-Booker sentencing world through stories on particular cases.
The pro-Booker editorials and commentaries today come from the Washington Times, the Maine Press Herald, and the Times-Herald-Record. I have documented previously here and here and here the numerous publications that have praised the outcome, if not the logic, of the Booker decision.
Also in the papers are anecdotes on federal sentencings from Maine and Tennessee. The Maine case, detailed in this story, had US District Judge D. Brock Hornby sentencing a mentally impaired defendant below the guidelines because Judge Hornby "ruled that a prison sentence would disrupt Jones' treatment and not serve any good." The Tennessee case, detailed in this story, indicates that Booker lead to a plea deal for a heroin dealer which resulted in little change from the recommended guideline sentence because a mandatory minimum provision required at least a 10-year sentencing term.
Last but not least, there is this interesting article from Illinois which provides a nice overview of Booker while highlighting the decision may not significantly impact Illinois state sentencing "because the Apprendi ruling had already boosted a jury's role in determining facts that could lengthen a defendant's punishment" under state law. As the article explains, sentencing in Illinois has already been Apprendi-ized: "Jurors in Illinois circuit courts now rule on factors that extend sentences beyond normal maximums."
The Illinois article on state sentencing also includes an important and revealing comment about the connections between state and federal sentencing laws and practice. The article notes that a state prosecutor "said the Supreme Court's action [in Booker] could impact whether McLean County prosecutors continue to forward cases to federal prosecutors in hopes of seeing defendants receive harsher punishment than they would in state court."