October 8, 2005
When will the USSC (or DOJ) release district-level and extent-of-variance data?
This interesting article discussing a federal re-sentencing resulting in a significantly reduced term for two defendants in Pennsylvania has whetted my appetite for district-level and extent-of-variance data from the US Sentencing Commission (or the Justice Department).
The news story is focused on significant sentence reductions for two drug defendants. The reductions were premised on crack/powder disparity concerns and led the AUSA to assert that the sentencing judge "was usurping the role of legislators by departing substantially from the congressionally approved sentencing guidelines." And the article includes this fascinating report from a local federal prosecutor about sentencing in the Eastern District of Pennsylvania:
Since [Booker], federal judges in eastern Pennsylvania who have conducted resentencings have issued shorter sentences for 60 percent of the defendants, according to Robert Zauzmer, an assistant U.S. attorney who heads the office's appellate unit. But most of those reductions were modest. In 10 percent of the cases, including the Ricks brothers' cases, the reductions were substantial, Zauzmer said.
This revealing report confirms my belief that federal prosecutors are keeping data on district-by-district post-Booker sentencing outcomes, and I am sure the USSC is doing the same. But none of this data has yet been made publicly available, even though we have 10 full months of post-Booker outcomes. The USSC has done a very good job promulgating cumulative and circuit-by-circuit data, but district-by-district is essential for getting a full picture of post-Booker sentencing realities.
Relatedly, this report spotlights that the extent of departures and variances may ultimately be more important for assessing post-Booker sentencing than just the raw number of non-guideline sentences. Indeed, as noted in this post, back in February US Attorney Robert McCampbell stressed in his USSC testimony that we all ought to be concerned more with the magnitude of variances than the raw number, since large variances pose a much greater risk of disparity than small ones. (As McCampbell noted, I made this point about departures in my article Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000).) The USSC has not released any data to date on the extent of departures and variances; here's hoping they might soon.
October 7, 2005
Is it time for a USSC hearing about the post-Booker world?
This page at US Sentencing Commission's website details that, after a quiet late spring and summer, the USSC has scheduled a series of public hearings in the coming months. The page also reminds me that, after two terrific hearings in November 2004 and February 2005, it has now been a full eight months since the USSC convened a big public hearing to discuss the impact of Blakely and Booker on the federal sentencing system.
Especially in light of the uncertainty and apparent misunderstanding of the state of post-Booker sentencing — as well as the growing Booker fix buzz — I am coming to think that the USSC ought to have another big public meeting about the federal sentencing world after Booker ASAP. Perhaps such an event is on the agenda for the coming meetings; if not, it should be.
Busy criminal day in the 1st Circuit
Today was a big day for criminal dispositions in the First Circuit on a range of topics, and all the action is well covered over at Appellate Law & Practice. The biggest news, covered effectively at both AL&P and How Appealing, is the First Circuit's grant of the government's write of mandamus to prevent US District Judge Nancy Gertner's creative effort to try to get more African-Americans on the jury to decide a federal death penalty case.
As if juries really matter in criminal cases...
I see this afternoon two interesting posts about jury decision-making in criminal cases: Doug Lichtman at the UC Faculty Blog is here talking up proportional jury voting schemes; Ethan Leib at PrawfsBlawg is here talking up super-majorities and a "decision rule hybrid" for criminal juries. My reaction to both posts are: "Hmm, how interesting, this might matter in the 1 out of every 10 criminal cases that goes to trial; I wonder how it would impact the other 9 that are resolved through pleas."
I am, of course, all for deep thoughts and creative proposals concerning the structure of criminal juries (especially in the wake of Blakely). Nevertheless, as Stephanos Bibas astutely stressed in this Yale Law Journal piece, in a world in which more than 90% of convictions result from guilty pleas, the real import and impact of criminal jury reforms depends upon the shadows that any proposed reform would cast over plea bargaining.
Sloppy article on post-Booker USSC statistics
The New Jersey Law Journal today has this article headlined "3rd Circuit Sentencing Departures Rise in Wake of Booker and Fanfan," which just reports on and gets reaction to the latest batch of post-Booker sentencing data from the USSC. Unfortunately, the article is sloppy in its reporting and use of terminology.
For example, even the headline is technically wrong: departures have actually declined in the Third Circuit and elsewhere in the wake of Booker, although the overall number of sentences outside the guideline range has risen due to so-called Booker variances. In addition, the article asserts that Third Circuit judges, when granting "departures," do so "a third of the time without citing a specific reason, according to a U.S. Sentencing Commission report." Unless there is some secret USSC report, I do not believe any USSC data or evidence support the assertion that many departures or variances are granted without stated reasons. (Based on the full article, it appears the reporter has improperly decided to describe all Booker variances as departures "without citing a specific reason," but that is not an accurate reflection of any of the Booker variances I have seen.)
Notably, the article also does not mention the interesting reality that average and median sentences nationwide have actually increased after Booker (although we do not yet have circuit-by-circuit data from the USSC on this issue). So the story presents a one-sided, as well as an inaccurate, perspective on the post-Booker data.
Though the sloppy reporting in this article is unfortunate, it is perhaps understandable given the complicated realities and terminology of post-Booker sentencing. It also suggests that the US Sentencing Commission needs to do a lot more than just produce data; it should issue a full report to explain the data for better public consumption and understanding. The USSC's recent statement of priorities suggests we can expect such a report sometime next year, but articles like this piece in the New Jersey Law Journal make me worry that a USSC report next year might end up being a day late and a dollar short.
State Blakely cases on SCOTUS agenda
Jonathan Soglin is doing a fine job tracking some state Blakely cases working their way up to the Supreme Court. Over at Criminal Appeal, this post notes that cert petitions are pending in Blakely cases from at least three states, and this page over at the FDAP website is tracking cases coming from California.
I believe Jonathan has been especially focused on Abeyta v. California, No. 05-5747, a case in which the defendant filed for cert in August (details here) and which is to be considered in conference by the Justices this Friday. Recall that, back in June, the California Supreme Court concluded in Black that Blakely was essentially inapplicable to California's determinate sentencing scheme (basics here, commentary here and here).
I am, of course, ever eager for the Supreme Court to take up new Blakely and Booker cases (as suggested in posts here and here). But I have a nagging suspicion that SCOTUS will continue to dodge Blakely and Booker issues over the next few months. And yet, given my poor track record for predicting SCOTUS timelines, I am not making any predictions.
Advice for white-collar defense post-Booker
Alan Ellis and James Feldman Jr. have a new article entitled "Representing White Collar Clients in a Post-Booker World," which is the lead article in the latest issue of the NACDL's renowned journal The Champion. I have kindly received permission to post the article below.
This article is a terrific resource for all federal sentencing practitioners. The article provides a thorough and helpful overview of the post-Booker sentencing world, as well as particularized advice for white-collar sentencing arguments. The article concludes with this sentiment: "The guidelines for white collar crime are harsh, but solid investigation, creative thinking, and persuasive advocacy can often be combined to protect our clients from overly severe and excessive punishment."
October 6, 2005
Minnesota Supreme Court invalidates post-conviction plea waiver
The lawfulness and appropriateness of appeal waivers post-Booker is a lively and interesting topic that I have covered in posts here and here and is the subject of an important recent paper by Nancy King and Michael O'Neill discussed here. Providing an interesting twist on the debate over appeal waivers, the Minnesota Supreme Court today held in Spann v. Minnesota, No. A04-278 (Minn. Oct. 6, 2005) (available here) that an "agreement made between the state and the defendant, who has been convicted after trial, requiring the defendant to waive all rights to appellate review in exchange for a reduced sentence is invalid as a matter of public policy and a violation of due process."
The majority opinion invalidating the defendant's post-conviction appeal waiver suggests a distinction between pre- and post-conviction appeal waivers. But much of the Spann decision's reasoning would seem to cast doubt on pre-conviction waivers. Indeed, one dissent suggests that post-conviction appeal waivers are less worrisome than such waivers secured pre-conviction through traditional plea bargains.
Divided Washington Supreme Court finds Blakely inapplicable to consecutive sentencing
As I was driving up to Cleveland this morning, I was thinking that there has not been a major state Blakely ruling in some time. And then, lo and behold, the news arrives that the Washington Supreme Court today in State v. Cubias, No. 75109-9 (Wash. Oct. 6, 2005), declares in this en banc opinion "that the principle set forth in Apprendi and Blakely does not apply to the imposition of consecutive sentences."
The chief ruling itself is not surprising; the decision notes that its "holding is also in line with the position taken in most other jurisdictions that have faced this issue" and cites four federal circuit decisions and 12 state rulings for this proposition. But this lively partial dissent, which garners four state Justices' votes, highlights that this issue remains quite debatable.
More from 7th Circuit on reasonableness review
A break between talks at the Cleveland-Marshall College of Law and a borrowed computer allow me to report on the latest Seventh Circuit decision confirming the reality that few (if any?) properly-calculated guideline sentences are going to be found unreasonable after Booker. In US v. Williams, No. 03-4091 (7th Cir. Oct. 6, 2005) (accessible here), the Seventh Circuit affirms a nearly 10-year sentence at the top of the applicable range for a felon-in-possession conviction and explains (with cites omitted):
Deciding whether or not the sentence imposed by the district court is reasonable entails deferential review. The question is not how we ourselves would have resolved the factors identified as relevant by section 3553(a) — many of which are vague and, worse perhaps, hopelessly open-ended — nor what sentence we ourselves ultimately might have decided to impose on the defendant. We are not sentencing judges. Rather, what we must decide is whether the district judge imposed the sentence he or she did for reasons that are logical and consistent with the factors set forth in section 3553(a). As we have noted, a sentence imposed within a properly calculated Guidelines range is presumptively reasonable. We have left room for the possibility that there will be some cases in which a sentence within the Guidelines range, measured against the factors identified in section 3553(a), stands out as unreasonable. But those cases ... will be rare.
Later today, I have the honor of giving the The 2005 Friedman & Gilbert Criminal Law Forum lecture at the Cleveland-Marshall College of Law. As detailed here, my talk is entitled "Conceptualizing Booker: A Two-headed Monster or a Masterful Piece of Judicial Craftsmanship?" I am about to jump in the car to drive up to the home of the the Rock and Roll Hall of Fame, and thus I will be off-line the rest of today. Below I have linked some of this exciting week's posts:
SCOTUS DEVELOPMENTS AND COMMENTARY
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- Strong dissenting words against the death penalty
- Another amazing Penry chapter
- High court death penalty news
BOOKER DEVELOPMENTS AND COMMENTARY
- More Booker GVRs and lots of cert denieds
- Major Seventh Circuit ruling on reasonableness
- Major 5th Circuit ruling upholding sizable sentences in tax case
- Eighth Circuit continues its busy sentencing ways
- Fifth Circuit opines on its approach to Booker plain error
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- The law and policy of banishment
- Fascinating new paper on community supervision from Vera Institute
- Fantastic NY Times piece on lifers
- More strong NY Times work on lifers
- Third major NY Times piece on lifers
October 5, 2005
Fifth Circuit opines on its approach to Booker plain error
Though I am not quite sure why, the Fifth Circuit today in US vs. Rodriguez-Gutierrez, No. 04-30451 (5th Cir. Oct. 5, 2005) (available here), decided to opine at some length concerning the circuit's basic approach to Booker plain error. The Rodriguez-Gutierrez is an interesting opinion, primarily because it reads more like a bench memo summarizing the circuit's jurisprudence than a disposition on the merits.
Fascinating new paper on community supervision from Vera Institute
The Vera Institute of Justice has produced a fascinating new paper exploring the important question, "Can community supervision compete with incarceration as a means of crime control?". The new paer is entitled "Probation Reform: Is Zero Tolerance a Viable Option?" and is available at this link. Here is the brief description of the paper from the Vera Institute:
Can community supervision compete with incarceration as a means of crime control? Mark Kleiman, professor of policy studies at the UCLA School of Public Affairs and the author of "When Brute Force Fails: Strategic Thinking for Crime Control," believes it can. At a July 2005 roundtable discussion sponsored by the National Institute of Justice (NIJ), Kleiman told a group of researchers and prominent community supervision administrators, "If we get [community supervision] right, we could cut incarceration by 50 percent, have less crime rather than more crime, and spend the same amount of money." This paper, produced by the Vera Institute of Justice with support from NIJ, summarizes the discussion between Kleiman, who has proposed a new model of community corrections based on his theoretical work, and his audience of researchers and community corrections administrators, who represent a wealth of practical experience.
Another amazing Penry chapter
Thanks to this post at How Appealing, I see the amazing news, reported in this AP story, that "Johnny Paul Penry, whose case helped spark national debate over whether mentally impaired inmates could be executed, had his death sentence overturned today for the third time." This latest decision from the Texas Court of Criminal Appeals (majority here, dissents here and here), concludes
that there is a reasonable likelihood that the jury believed that it was not permitted to consider mental impairment outside of determining whether the appellant is mentally retarded. As a result, the instructions in this case fell short of the constitutional requirement that the jury be provided a vehicle to give effect to its reasoned moral response to the appellant's mitigating circumstances.
Spurred by this latest development, I cannot help but speculate how much time and money the state of Texas has spent over the last quarter century trying to end the life of Johnny Paul Penry. His case has gone all the way up to the Supreme Court twice, and now three different death sentences have been overturned. I also wonder whether Texas will try again, especially since it should realize that further appeals of a fourth death sentence would be inevitable because of constitutional uncertainty that surrounds the application of Atkins and its bar on the execution of persons with mental retardation.
Will a Justice Miers continue to be a vocal advocate for better funding of indigent defense?
My crackerjack research assistant has found another tiny but interesting criminal justice scrap on Harriet Miers' paper trail. It appears that, in December 2000, Miers was to moderate a panel entitled "Strategies for Improving Indigent Representation Systems" as part of a two-day "Symposium on Criminal Indigent Defense in Texas" sponsored by the State Bar of Texas and a number of judiciary and defender groups. Details about this symposium can be found here and here.
As detailed in this transcript, Miers was for some reason unable to attend the event. Nevertheless, I think just her commitment to serve as a moderator in this program (many years after she had served as president of the State Bar of Texas) reveals a genuine commitment to the cause of criminal defense and the need for adequate funding of indigent defense. And recall that, as detailed in this post, Miers' 1992 Texas Lawyer article stressed that "inadequacies exist in the resources available to provide constitutionally required indigent criminal defense" and that lawyers "must, in the interest of the administration of justice, be aggressive advocates for increasing the resources available for the representation of indigent defendants."
To add some fun speculation to this mix, recall also that, as noted in this post, President Bush in his February 2005 State of the Union Address made the surprising statement that he planned soon to "send to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side." Besides wondering if President Bush ever did in fact send to Congress such a proposal, I also wonder if it is just a coincidence that Bush made this statement right around the time Miers became White House Counsel.
These issues are, of course, interesting as a matter of criminal justice policy, but they are also potentially significant as a matter of constitutional doctrine. More than a few academics have forcefully advocated that some indigent defense systems are per se constitutionally ineffective because of a lack of adequate funding. Might a Justice Miers be more sympathetic to claims of this sort — or ineffective assistance of counsel claims more generally — than some of her future colleagues?
UPDATE: Thanks to Howard Bashman, I see that the The Daily Journal of California has this article today discussing more generally Miers' "long track record of supporting legal services for the poor."
Third major NY Times piece on lifers
The third piece of an impressive New York Times series of articles on life sentences, which focuses on life without paroel and the relationship of this sentence to the death penalty, can be found here. (Prior articles in the series are discussed here and here.) A fascinating passage from this latest article spotlights a point I have often made in my sentence classes: if I was innocent but convicted of murder, I would rather be sentence to death than to life. Here's why:
Some defendants view the prospect of life in prison as so bleak and the possibility of exoneration for lifers as so remote that they are willing to roll the dice with death. In Alabama, six men convicted of capital crimes have asked their juries for death rather than life sentences, said Bryan Stevenson, director of the Equal Justice Initiative of Alabama.
The idea seems to have its roots in the experience of Walter McMillian, who was convicted of capital murder by an Alabama jury in 1988. The jury recommended that he be sentenced to life without parole, but Judge Robert E. Lee Key Jr. overrode that recommendation and sentenced Mr. McMillian to death by electrocution.
Because of that death sentence, lawyers opposed to capital punishment took up Mr. McMillian's case. Through their efforts, Mr. McMillian was exonerated five years later after prosecutors conceded that they had relied on perjured testimony. "Had there not been that decision to override," said Mr. Stevenson, one of Mr. McMillian's lawyers, "he would be in prison today."
Other Alabama defendants have learned a lesson from Mr. McMillian. "We have a lot of death penalty cases where, perversely, the client at the penalty phase asks to be sentenced to death," Mr. Stevenson said.
Judges and other legal experts say that risky decision could be a wise one for defendants who are innocent or who were convicted under flawed procedures. "Capital cases get an automatic royal treatment, whereas noncapital cases are fairly routine," said Alex Kozinski, a federal appeals court judge in California.
A lot of reading to catch up on...
I am finding the blogosphere buzz on Harriet Miers absolutely fascinating, from Stephen Bainbridge's withering attack to the array of diverse insights set out at Volokh and TalkLeft and Confirm Them. Helpfully, the Left Coaster collects and organizes a lot of information and links in a post entitled Who is Harriet Miers?
Thanks to this post at Crime & Federalism, I got a chuckle from Feddie's suggestion about how Miers is likely trying to brush up on constitutional law. But, on a serious related note, consider how much reading lies ahead for nominee (and then Justice?) Miers to enable her to engage effectively with the issues that confront the High Court. As a commercial litigator and even in her more recent roles within the administration, I suspect Miers has had little time and limited reason to keep up with much of the Supreme Court's often laborious jurisprudence.
To pick my favorite example, consider the field of sentencing. I suspect (but would not wager) that, as White House Counsel, Miers had ocassion to read Booker. But how about Blakely, or Ring, or Harris, or Apprendi, or Almendarez-Torres or Watts or McMillan or Williams?
Shifting from the Sixth Amendment to the Eighth Amendment, I genuinely wonder if Miers has ever read Furman or Gregg or Coker or Lockett or McClesky or Herrera or Atkins. (Again, I suspect (but would not wager) that, as White House Counsel, Miers had ocassion to read Roper.) Of course, while on the Eighth Amendment, we shouldn't forget Solem, Harmelin and Ewing. And let's not even get started with habeas jurisprudence.
I raise these realities not to criticize Miers, but rather to speculate about the impact of her SCOTUS inexperience when (if?) she joins the Court. There is a lot of SCOTUS jurisprudence I have not kept up with since my law school days (and I never have to worry about attracting and serving clients). But, as a consequence, when discussing a dormant commerce clause or First Amendment issue, I will often seek guidance from colleagues who are more knowledgeable on these subjects. Drawing out the parallel, we might reasonably expect that a Justice Miers, at least in the short term as she is catching up on her reading, will be a follower and not a leader on a lot of subjects.
Of course, those on the right may hope, and those on the left may fear, that a Justice Miers will just follow Justices Scalia and Thomas. But, as I have noted in post here and here, many criminal defendants will be quite pleased if a Justice Miers were to follow the paths of Justice Scalia in Blakely and Justice Thomas in Harris. (And, of course, the current SCOTUS sentencing head-count entails that criminal defendants may not even need Miers on their side to prevail on a range of future Blakely issues.)
Experiencing technical difficulties
As of about 9:30pm Tuesday night, this blog started to have varied and mysterious technical problems. I am hopeful these problems will be corrected soon, but right now I feel as though I have somehow entered the blogosphere's equivalent of the island in Lost.
October 4, 2005
Nominee Miers' 1992 discussion of crime and punishment
As this post at Volokh highlights, today begins an examination of SCOTUS nominee Harriet Miers' paper trail. And, intrigued by the quotes provided in this Time Magazine sampling, I pulled up on Lexis a short commentary Miers wrote in the July 27, 1992 issue of the Texas Lawyer when she was president of the State Bar of Texas and a partner at Locke Purnell Rain Harrell. This commentary was written in response to an angry man's courthouse shooting spree in Fort Wayne, which left two lawyers dead and two judges and a prosecutor wounded.
The commentary ran under the title "Don't Blame the Legal System for Fort Worth Rampage," and it covers considerable ground in just over 1000 words. Because Meirs' paper trail is apparently so short, I suspect a lot of the words in this 1992 commentary will get a lot of attention. Here is the passages from Miers' pen that especially caught my eye:
Punishment of wrongdoers should be swift and sure. Only then can the criminal justice system serve as an effective deterrent. Those who would choose a rule of man rather than the rule of law must not escape fitting penalty. Again, the lack of adequate resources to support an overburdened criminal justice system looms as a reality. Punishment may come swift and sure in the Fort Worth slayings case because of their notoriety. But we cannot forget the other cases crying for justice languishing in courts throughout Texas and the nation.
All lawyers, not just those involved in the criminal justice system, should have an interest in efforts to improve the functioning of the criminal justice system. The State Bar and the Texas Young Lawyers Association conducted 15 hearings across the state concerning pro bono issues. These hearings provided a clear picture that inadequacies exist in the resources available to provide constitutionally required indigent criminal defense.
The hearings also underscored that the lack of resources in some areas of the state not only has a dramatic impact on the courts' performance of all of their obligations, but also unduly burdens the ability of lawyers to maintain a private practice. Lawyers must, in the interest of the administration of justice, be aggressive advocates for increasing the resources available for the representation of indigent defendants.
Additionally, we are reminded that success in fighting crime in our nation is more than treating symptoms. We will be successful in solving our massive crime problems only when we attack the root causes. All of us, men and women, young and old, must pledge ourselves to address the ills that surround us in our communities.
We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction.
Eighth Circuit continues its busy sentencing ways
The Eighth Circuit, which has produced more than 400 sentencing dispositions in less than nine months since Booker, continues its busy ways today with another half-dozen sentencing rulings. Summaries of the various dispositions are available on this official opinion page. Two cases especially caught my attention:
- In US v. O'Malley, No. 04-2912 (8th Cir. Oct. 4, 2005) (available here), a white-collar fraud case, the government succeeds a second time appealing a pre-Booker sentence it apparently considered too lenient.
- In US v. Mark, No. 04-3737 (8th Cir. Oct. 4, 2005) (available here), a possession of child pornography case, the court discusses diminished capacity departures and overturns special conditions of supervised release prohibiting access to any online computer programs and prohibiting the use or possession of a computer with Internet access.