Sentencing Law and Policy

Strong dissenting words against the death penalty

Thanks to this post at How Appealing, I see Sixth Circuit Judge Boyce F. Martin, Jr. today in Moore v. Parker, No. 03-6105 (6th Cir. Oct. 4, 2005) (available here) had a number of choice and potent words about the death penalty in a dissent from a ruling rejecting a capital defendant's habeas corpus challenge.   Here is a taste:

I have been a judge on this Court for more than twenty-five years. In that time I have seen many death penalty cases and I have applied the law as instructed by the Supreme Court and I will continue to do so for as long as I remain on this Court. This my oath requires. After all these years, however, only one conclusion is possible: the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair....

As noted above, while the system suffers from many flaws, much of the arbitrary imposition of the death penalty stems from the exceedingly distressing fact that during all my years on the bench, the quality of lawyering that capital defendants receive has not substantially improved. In many cases it has deteriorated. In fact, one of the most clear examples of the arbitrariness of the death penalty is the common knowledge that those defendants with decent lawyers rarely get sentenced to death. Death has more to do with extra-judicial factors like race and socio-economic status than with whether death is deserved. A system, whose basic justification is the interest in retribution and general deterrence, is not served when guided by such irrelevant factors. Nor should a system of life and death hinge on the proficiency of counsel.

High court death penalty news

I noted in this post the incredibly long list of cert denieds in yesterday's Supreme Court order list, and the morning papers now have details on some death penalty cases that SCOTUS decided not to hear.  Many thought that the Lovitt case from Virginia, previously discussed here, might get the Supreme Court's attention because of a stay granted this summer and former SG Ken Starr's involvement.  But, as detailed in the NY Times article, Lovitt's case was on the long cert denied list.  Also, high-profile capital cases from California and from Connecticut were on the cert denied list.

In related high court news, this Washington Post article reports that "Maryland's highest court denied a condemned man's bid yesterday for a hearing to show that his sentence was rendered illegal by racial and other inequalities that his attorneys, citing a state-sponsored study, argue are pervasive in the application of the state's death penalty law."

What Iran and Israel have in common

Last month in this post I noted an article reporting that the Israeli Justice Ministry had proposed the development of sentencing guidelines, and that "High Court judges, including High Court president Aharon Barak, are said to strongly support the proposal."  Now I see, according to this news account, similar support for sentencing guidelines in Iran:

An Iranian newspaper commented here Sunday on the country's judicial system calling for major sentencing reforms in the field. Referring to the latest comments of the Judiciary Chief Ayatollah Shahroudi who has recently issued new sentencing guidelines to judicial officials, prosecutors and judges, the 'Iran News' welcomed the guidelines urging for adoption of more sensible sentencing guidelines.

The law and policy of banishment

In addition to its recent strong work on life sentences (discussed here and here), the New York Times today also gives us this strong article entitled "Exiling Sex Offenders From Town."  The article effectively covers some of the law and policy discussions prompted by the fact that "in towns and counties across the country ..., local officials have passed laws in recent months that effectively banish anyone convicted of a sex crime against a minor."  TalkLeft discusses the article and the broader issues here.

Notably, as detailed here, the blogosphere had a great debate over these residency restrictions back in August on the heels of major recent rulings by the Eighth Circuit and the Iowa Supreme Court.  Arguments over the constitutionality of these laws will surely make their way to the Supreme Court sooner or later, which is among the reasons I am so interested in exploring SCOTUS nominee Harriet Miers' work in support of prisoner re-entry.

More strong NY Times work on lifers

Though surely overshadowed by the Miers' nomination (discussed here and here), reporter Adam Liptak has another great front-page article in the New York Times on the subject of life sentences.  On the heels of yesterday's article discussing the number and nature of life sentences nationwide, today's article examines life sentences given to offenders for crimes comitted as juveniles.  And, once again, I first noticed the new and interesting data reported in the article:

About 9,700 American prisoners are serving life sentences for crimes they committed before they could vote, serve on a jury or gamble in a casino — in short, before they turned 18. More than a fifth have no chance for parole....

[A] report to be issued on Oct. 12 by Human Rights Watch and Amnesty International found juveniles serving [life without parole] in only three other [counties].  Israel has seven, South Africa has four and Tanzania has one.  By contrast, the report counted some 2,200 people in the United States serving life without parole for crimes they committed before turning 18.  More than 350 of them were 15 or younger, according to the report.

Juvenile lifers are overwhelmingly male and mostly black. Ninety-five percent of those admitted in 2001 were male and 55 percent were black....  While 40 percent of adults sent away for life between 1988 and 2001 committed crimes other than murder, like drug offenses, rape and armed robbery, the Times analysis found, only 16 percent of juvenile lifers were sentenced for anything other than murder.

The article also includes a number of compelling personal stories, and this companion piece discusses a hasty plea entered by a juvenile which lead to a life sentence.  The article also explores a question I raised in this post immediatley after Roper: if the Constitution now demands a categorical bar on the death penalty for crimes committed before 18 because of some offenders' "immaturity" and "vulnerability" and the general "mitigating force of youth," shouldn't these same realities and concerns come to bear in at least some non-capital sentencing cases?

Major 5th Circuit ruling upholding sizeable sentences in tax case

Those in the mood to read sentencing opinions rather than Miers' buzz (posts here and here) will be pleased the Fifth Circuit is back in action with US v. Saldana, No. 04-50527 (5th Cir. Sept. 30, 2005) (available here).  The last 20 pages of Saldana cover a lot of ground on the way to upholding two sizeable sentences involving upward departures in a tax case.  Here are a few snippets which reveal the Fifth Circuit's highly deferential approach to reasonableness review:

Even though, in this case, we concur with the district court's decision to depart above the Guidelines, we conclude that the extent of that departure approaches the outer boundary of reasonableness.... 

Despite our misgivings about the length of this sentence, however, we are unwilling to hold that it is unreasonable.  The sentence does overstate the degree of harm, does not appear to advance the goal of uniformity, and does over-compensate for the number of counts, but each of these was a permissible reason for the district court to depart from the Guidelines' range and, taken together, would likely justify a sentence at least within striking distance of that imposed by the district court.  Given the deference we owe to the district court that has properly applied the Guidelines, we decline to hold the degree of the departure unreasonable.

Major Seventh Circuit ruling on reasonableness

The Seventh Circuit today in US v. Castro-Juarez, No. 05-1195 (7th Cir. Oct. 3, 2005) (accessible here), issued a significant ruling in a case in which the defendant appealed the reasonableness of a "48-month term [which was] more than twice the high end of the guideline range, and more than three times the low end of the range that the prosecutor recommended as an appropriate sentence."  The Castro-Juarez ruling cover a lot of important ground, and here are a few highlights:

[W]e are not asked to decide here whether 48 months could be a reasonable sentence; our function is to assess whether the district court's choice of sentence is adequately explained given the record before us.  Here we must determine whether the court's articulated reasons for jumping from 21 to 48 months are sufficiently compelling on this record to satisfy us that the term imposed is reasonable....

Before Booker, we recognized that district courts were required to sentence within the guideline range except in unusual cases, and anything but a loose comparison to pre-Booker departure cases would vitiate the post-Booker discretion that sentencing courts enjoy.  All that is necessary now to sustain a sentence above the guideline range is "an adequate statement of the judge's reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant." Dean, 414 F.3d at 729.

In the end we are not persuaded that the district court met this standard. The court did recite the § 3553(a) factors at sentencing... [but] the judge did not single out any aspect except criminal history. The court was understandably troubled by Castro- Juarez's history of several times entering the United States illegally, committing crimes once in the country, being deported, and then beginning the cycle again. The judge also expressed dismay over Castro-Juarez's history of violence, especially that directed against his girlfriend.  These are significant concerns, but they overlap and, as far as we can tell on this record, are encompassed by the district court's explicit reference to the text of § 4A1.3. We understand that reference to mean that the district court was itself drawing an analogy to § 4A1.3, yet we have seen that the analogy does not fully explain the 48-month sentence.  And because that sentence is more than double the high end of the guideline range, we cannot conclude that the court's explanation is sufficiently compelling to uphold the court's exercise of discretion.

More Booker GVRs and lots of cert denieds

Mired in Miers' buzz so far today (posts here and here), I have just now had a chance to look over this morning's order list from the Supreme Court.  Those who missed the tradition of Booker-inspired GVRs while the Court was on its summer break, will be excited to hear that there are nearly 30 new Booker-inspired GVRs on this latest order list.  In addition, the order list includes an incredibly long list of cert denieds (nearly 2000 by my rough estimate); I am sure there are some Blakely and Booker cases in that huge group.

UPDATE:  Thanks to How Appealing, I can link here and here to news stories about notable sentencing-related cases that are among the big group of cert denieds.

Exploring Miers' work in support of prisoner re-entry

In my first reaction post to the nomination of Harriet Miers to the Supreme Court, I guessed that she had no track record on sentencing-related issues.  But apparently I spoke too soon: thanks to this post a Law Dork, I see that President Bush's statement this morning mentioned Miers' work "to support better legal representation for the poor and under-served" and her service "as a leader with more than a dozen community groups and charities, including ... Exodus Ministries ...."  And Exodus Ministries, it seems, is a spiritual organization devoted to assisting prisoner re-entry.

According to its website, "Exodus Ministry is a non-denominational Christian organization established to assist ex-offenders and their families become productive members of society by meeting both their spiritual and physical needs."  And this page and this page on the organization's website makes these interesting statements about crime, punishment and re-entry issues:

Most people in prison today are captives of generations of poverty and lawlessness.... At EXODUS, we recognize that recently released and paroled ex-offenders need help. In addition to their need for intimate knowledge of the saving grace of Jesus Christ, these individuals and their families also need a sense of belonging and acceptance.  Most need a place to live.  Some need counseling, including treatment for drug and alcohol dependence.

Ex-offenders returning to the community are in need of a loving and accepting Church, a place to live, a job, transportation and an environment that enhances physical, emotional and spiritual healing.

In the days ahead, I will be very interested to hear more about Miers' work with this organization, and more generally about her perspectives on a range of criminal justice issues.  It is already fascinating to consider how Miers' work with Exodus Ministries might influence her views on the Eighth Amendment's prohibition on cruel and unusual punishments or on other brewing constitutional issues like broad residency restrictions for released sex offenders or state establishment of faith-based prisons.

What will a Justice Harriet Miers mean for sentencing jurisprudence?

Getting this week off to a fast legal start, President Bush nominated Harriet Miers to the Supreme Court.  (Howard at How Appealing has lots of details and links.)  TalkLeft here and The Volokh Conspiracy here already have interesting comments.

Of course, as detailed in this post, I follow all the SCOTUS transitions with a keen eye on what new blood may mean for sentencing jurisprudence, especially because the absence of Justices Rehnquist and O'Connor has a profound impact on the SCOTUS sentencing head-count.  My sense is that Ms. Miers has no tangible track record on sentencing-related issues.  Similarly, in prior posts, I have suggested it would be valuable for the new nominee to have a criminal law background or experience as a trial judge, but I do not believe Ms. Miers' personal history includes either of these attributes.

Readers are highly encouraged to use the comments to provide information or reactions to this interesting (and already controversial) news.

UPDATE: SCOTUSblog is off and running with great commentary on the nomination, with Lyle Denniston astutely wondering "whether the American Bar Association will find Miers to be qualified for the Court," and Tom Goldstein boldly predicting "that she will be rejected by the Senate [and] Justice O'Connor will still be sitting on the Court on January 1, 2006." 

MORE: Larry Solum at Legal Theory Blog has this amazing quote from the Federalist Papers, while Eduardo Penalver speculates that this nomination is "a big fake-out to clear the path for a Gonzalez nomination."

SLIGHT(?) CORRECTION: Though the extent of her involvement is still to be determined, I have noted in this follow-up post that Harriet Miers may have had some experience with prisoner re-entry issues through her work with Exodus Ministries.

Some September sentencing highlights

With the start of classes and a lot of other stuff going on, I have not been able to do the weekly reviews that were common over the summer (recent examples here and here and here).  But I was able to find a bit of time this afternoon to review some September sentencing highlights.

SCOTUS DEVELOPMENTS AND COMMENTARY

• The current SCOTUS sentencing head-count
• Assailing the lack of criminal justice questions at the Roberts hearing
• Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
• Criminal justice in Roberts' written testimony
• Will the next SCOTUS nominee have any criminal law background?
• How would a Justice Gonzales or a Justice Thompson handle sentencing issues?
• A criminal law perspective on Janice Rogers Brown

BOOKER/BLAKELY DEVELOPMENTS AND COMMENTARY

• Have Blakely and Booker depressed federal prosecutions?
• More strong work on the crack disparity issue
• More on consideration of state-federal disparity after Booker
• A judicious retort to AG Gonzales' proposed Booker fix
• Is the Booker remedy here to stay?
• Invigorating the sentencing process after Booker
• Will stare decisis save the A-T prior conviction exception?
• FSR Issue asks: Is a Booker Fix Needed?
• Other Booker in the Circuits posts

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Growing opposition to bill seeking further habeas restrictions
• Pondering white-collar sentencing
• More pardons from President Bush
• Creative (and effective?) shaming
• Notable Indiana ruling on implementing Atkins
• Fine commentary on SCOTUS and the death penalty
• More academic thoughts on the offense/offender distinction

A bit of Booker fix buzz

A few weeks ago in this post, I detailed some political and legal reasons why I think the Booker advisory guidelines remedy might persist for some time.  Since then, however, I have been hearing buzz about efforts that may be afoot to respond legislatively to Booker. 

Specifically, I have heard that the Justice Department is actively working on a legislative proposal that would make a reality of AG Alberto Gonzales' suggested minimum guideline system (background here).  In addition, I have heard that the House of Representative may be gearing up for a January hearing on Booker around the one-year anniversary of the decision.

My sense is that most federal judges are quite pleased with the post-Booker status quo, and in recent posts have noted commentaries by Chief Judge James Carr and Judge Lynn Adelman suggesting a legislative Booker fix is not needed.  If the Booker fix buzz grows in the months ahead, it will be interesting to see if other federal judges will vocally oppose new sentencing legislation.  Also, if and when more Booker fix chatter comes from DOJ and the House, it will be interesting to see when and how the US Sentencing Commission will jump into this important policy debate.  (Recall that the latest issue of the Federal Sentencing Reporter assembles materials concerning these issues as it asks "Is a Booker Fix Needed?").   

Fantastic NY Times piece on lifers

The Sunday New York Times has this terrific article by Adam Liptak, which explains why "in just the last 30 years, the United States has created something never before seen in its history and unheard of around the globe: a booming population of prisoners whose only way out of prison is likely to be inside a coffin."  This article on lifers is a must-read, which covers a lot of important ground about life sentences and the modern politics of parole and clemency.  I was especially intrigued by some data in the article:

A survey by The New York Times found that about 132,000 of the nation's prisoners, or almost 1 in 10, are serving life sentences. The number of lifers has almost doubled in the last decade, far outpacing the overall growth in the prison population....

Fewer than two-thirds of the 70,000 people sentenced to life from 1988 to 2001 are in for murder, the Times analysis found.  Other lifers — more than 25,000 of them — were convicted of crimes like rape, kidnapping, armed robbery, assault, extortion, burglary and arson.  People convicted of drug trafficking account for 16 percent of all lifers.

Over at TalkLeft, TChris has this post on this important topic.  And additional data on lifers can be found in last year's potent report from The Sentencing Project discussed in this post.