October 15, 2005
The luck of the Guidelines Manual?
No doubt because of the burnt orange color of the US Sentencing Guidelines Manual, the Texas Longhorns rolled over the Colorado Buffaloes today. But the luck USSG Manual did not bring luck to the Irish as the Trojans pulled off a miracle win to keep the Longhorns from taking over the top spot in the polls. Also, I suspect some other football fans at the Sentencing Commission will be a little glum because the Nittany Lions lost a heart-breaker. Quite a day for college football, that's for sure.
Alaska on Blakely's applicability to juvenile transfer
One interesting issue concerning the reach of Apprendi and Blakely concerns their potential applicability to the judicial fact-finding required in many states for transfering a juvenile offender to an adult court (where, typically, a much higher maximum sentence is available). I noted in this June post a Texas ruling finding Apprendi applicable to such juvenile bind-overs, and I received news of an Alaska decision yesterday going the other way.
Interestingly, the decision in Alaska v. Kalmakoff, No. A-8911 (Ala. App. Oct. 14, 2005) (available here), reveals that the trial court "concluded that the reasoning of Apprendi and Blakely applied to juvenile waiver hearings," and that a jury was needed "to determine whether Kalmakoff was not amenable to treatment as a juvenile" (the key finding in Alaska for a transfer to adult court). On appeal, the Kalmakoff court, in a thoughtful and thorough opinion, noted that nearly all "courts have held that Apprendi does not apply to a juvenile waiver proceeding because it is not a sentencing proceeding, but rather a determination of the court's jurisdiction." Deciding to follow this authority, the appellate court also give this pragmatic justification for permitting judicial fact-finding in this context:
At oral argument, Kalmakoff conceded that the State could constitutionally establish a procedure where a juvenile would have been automatically prosecuted as an adult or a procedure where a prosecutor could determine whether to prosecute the juvenile as an adult. (This decision would be similar to a decision which prosecutors make routinely — whether to prosecute an offense as a misdemeanor or a felony.) Under either of these procedures, Kalmakoff would have far fewer procedural protections, such as the right to have a lawyer represent him and the right to present evidence at a hearing in front of a judge, than he does under the current law. Therefore, Kalmakoff's claim that the current system violates his constitutional rights actually could result in far fewer procedural protections for juveniles facing a waiver of juvenile jurisdiction if the legislature chose to take those actions. Given this concession, which is sound, the balance that the legislature has chosen appears to us to be rational. We would only change this balance if we were convinced that the United States or Alaska Constitution required us to change it. Because the great weight of authority supports the constitutionality of the State's juvenile waiver procedure, we uphold it.
October 14, 2005
Miers hitting the (sentencing?) books
This article from Knight Ridder Newspapers examines, a bit more seriously than Feddie, how Miers will be preparing for her confirmation hearings. The article says she will soon "turn her attention to a half-dozen thick briefing books on the most contentious constitutional issues before the court." This piece confirms my suggestion that Miers has a lot of reading to catch up on, and I wonder how much of that reading has to do with sentencing issues.
I am sure the "thick briefing books" include a section on capital punishment, but I really wonder if they contain any extended discussion of Blakely or Booker. In light of the lack of criminal justice questions at Roberts' confirmation hearing, I suspect that the briefing books are light on criminal justice issues. That, in turn, might make it especially valuable for Senators to focus on criminal justice topics to see how Miers could handle questions on such issues during the hearings.
Related posts on Miers' nomination:
Friday afternoon around the blogosphere
As we wind down another work week, a number of items have caught my eye around the blogosphere:
- Talkleft has this post noting "a ruling last week by the European Court of Human Rights overturning a British law that prohibits prison inmates from voting." The post points to this New York Times editorial which itself notes that "the United States ... shows less regard for the rights of prisoners and ex-offenders than just about any of its peers."
- Appellate Law & Practice continues with this post to follow effectively the jury pool wrangling taking place in a death penalty case in the first circuit. This ABA Journal e-report article provides useful background and insight on the brouhaha.
- The latest takes on Harriet Miers is that she is not in the mold of Justices Scalia and Thomas, but rather in the mold of Justice Lewis Powell (according to Stephen Bainbridge) or in the mold of Justice Potter Stewart (according to Orin Kerr and Hugh Hewitt). Of course, these observations lead me to ponder what a modern-day Powell or Stewart might think about Blakely and Booker.
Seventh Circuit on departures and reasonableness review
The Seventh Circuit today in US v. Johnson, No. 04-1463 (7th Cir. Oct. 14, 2005) (accessible here), affirmed a sentence in a child pornography case in which, pre-Blakely, the district judge departed upward from a sentencing range of 70 to 87 months' imprisonment to a final sentence of 236 months' imprisonment. The case involved images which the sentencing judge "characterized as the most shocking he had seen in sixteen years on the bench," and the Seventh Circuit's opinion in Johnson provides a thorough and thoughtful explanation for its conclusion that this above-guideline sentence is reasonable.
Considering its other decisions discussing reasonableness over the last few weeks (discussed here and here and here), the Seventh Circuit merits praise for working hard to try to give reasonableness review some real content. Despite these efforts, however, I fear that quixotic character of appellate review for reasonableness, combined with a strong institutional disposition in the circuits to affirm most sentences, likely means that reasonableness review will always be an elusive concept in the post-Booker world. (Ever the optimist, though, I have some hope that whenever we get some data from the USSC on appellate issues, we might find that reasonableness review has at least a few predictable features.)
One interesting facet of this latest Johnson decision is how the Seventh Circuit talks about departures in the post-Booker world. As noted way back in this February post, the USSC and others have urged sentencing judges to consider and address departures and variances distinctly. But, confirming my instinct that these concepts might get collapsed post-Booker, consider this passage from Johnson:
Johnson's framing of the issue as one about "departures" has been rendered obsolete by our recent decisions applying Booker. It is now clear that after Booker what is at stake is the reasonableness of the sentence, not the correctness of the "departures" as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory. United States v. Castro-Juarez, No. 05-1195, 2005 WL 2417065, at *3 (7th Cir. Oct. 3, 2005) ("the question . . . is ultimately the reasonableness of the sentence the district court imposed, not the court's application of a guideline authorizing an upward departure"). Now, instead of employing the pre-Booker terminology of departures, we have moved toward characterizing sentences as either fitting within the advisory guidelines range or not.
Fascinating Illinois decision on proportionality
A helpful reader has pointed me to a fascinating decision handed down by the Illinois Supreme Court last week in People v. Sharpe, No. 91874 (Ill. Oct. 6, 2005) (available here). The decision principally concerns how Illinois courts are to apply the proportionality principles appearing in article I, section 11, of the Illinois Constitution, which provides that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship."
The Sharpe decision is interesting beyond its coverage of sentencing issues. In addition to highlighting one jurisdiction's struggle with proportionality concepts, the decision includes a thoughtful discussion of stare decisis in which the court asserts that "good cause to depart from stare decisis exists when governing decisions are unworkable or are badly reasoned." The decision also has an extended discussion of a precedent's improper use of the Bluebook citation signal "Cf."
As detailed in this newspaper article and this official summary, Sharpe ultimately held that in Illinois a defendant may no longer "challenge a penalty under the proportionate penalties clause by comparing it to the penalty for an offense with different elements." After a lengthy discussion of prior efforts to apply "cross-comparison proportionate penalties analysis," here is how the Sharpe Court justified its decision to abandon its prior jurisprudence:
First, [this] is clearly an area of the law in which the governing decisions are badly reasoned. As noted above, cross-comparison analysis started with a questionable citation and was never supported by any reasoning other than stating that the court has used it in several cases. Second, the governing decisions have proved unworkable. This court has experimented with different analyses in this area, and all that we have accomplished is to make the analysis more subjective and to put ourselves in a position in which we are improperly substituting our judgment for that of the legislature. The law in this area has never been settled for any appreciable length of time. Third, this analysis set this court on a collision course with separation of powers principles. Were this court to keep using the cross-comparison analysis as it had been, this court would no longer be constrained to serve as a mere check on the legislature, ensuring compliance with the proportionate penalties clause of the Illinois Constitution. Instead, we would be free to act as a superior legislative branch, substituting our judgment for the legislature whenever we disagreed with the penalties it set.
I always find it interesting when judges reverse their calls. Too bad for the Los Angeles Angels that, despite judge-umpire analogies now being all the rage, they cannot get the Illinois Supreme Court to reverse a more recent decision that, by my lights, was also badly reasoned.
When Booker meets Blakely in the federal system
Federal Public Defenders Jon Sands and Robert McWhirter have produced a fascinating article which explores the intersection of Blakely and Booker for these cases in the federal sentencing system in which state and federal sentencing law intertwine. This article, which will appear in a forthcoming issue of the Federal Sentencing Reporter and is entitled "Federal Sentencing Adventures in Jurisdictional Wonderland: Blakely, Booker, and Special Federal Jurisdiction Issues," is available for downloading below. Here is the magical start to the article:
"Curiouser and curiouser!" exclaimed Alice as she fell through the Booker rabbit hole of federal sentencing. Words do not mean what they seem, mandatory guidelines disappear like Cheshire cats, and appellate Mad Tea Parties discern "reasonableness" and even "advisory."
Over all the Queen of Hearts proclaims:One Blakely Constitution for the StatesAnd a Booker one for the Feds,If they don't understand it,Off with their heads!
But Alice sees something curiouser still — a jurisdictional hole, where the federal courts, Alice-like, peer through the looking-glass of Booker to fall back into Blakelyland. Enter the Assimilative Crimes Act (ACA) and the Major Crimes Act.
October 13, 2005
Interesting 8th Circuit Booker remand
The Eighth Circuit issued an interesting opinion granting a Booker plain error remand today in US v. Jimenez-Gutierrez, No. 04-2119 (8th Cir. Oct. 13, 2005) (available here). In Jimenez-Gutierrez, the district judge, sentencing before Blakely, expressed displeasure with having to give a long guideline sentence to one defendant after a co-defendant received a far lower sentence apparently as a result of cooperation with the government. That expression of displeasure enabled the defendant to satisfy the Eighth Circuit's plain error standard. But it also prompted Judge Colloton to write a separate concurring opinion to make this observation:
It seems to me that there is a substantial question whether a district court may, in essence, create a "sentence disparity" by granting a reduction under the now-advisory guidelines to one defendant based on the provision of substantial assistance, and then "reasonably," within the meaning of United States v. Booker, 125 S. Ct. 738 (2005), vary from the advisory guidelines based solely on this "disparity" when sentencing another defendant who declined an opportunity to provide such assistance. Congress clearly thought it appropriate that defendants who provide substantial assistance should receive lower sentences than would otherwise be imposed, see 28 U.S.C. § 994(n); 18 U.S.C. § 3553(e), so it is difficult to conclude that Congress at the same time believed that such reductions in sentence would cause "unwarranted sentence disparities" that need to be avoided.
New resource examining religion and the death penalty
Earlier this week, I explored the relationship between Miers, religion, and criminal justice issues. Today, thanks to this item at DPIC, I see that the Fall 2005 issue of the Christian Networks Journalan explores religion and sentencing in the particular context of the death penalty. The contents of the issue, which has a series of articles under the title "Shalt Thou Kill?: An In-Depth Look at Capital Punishment," can be seen at this link. Here is the Journal's description of the issue:
In this issue we look in-depth at the death penalty in America. We hear from all sides on this often divisive issue, for the purpose of understanding the realities of the present day system, its strengths and its flaws. We have talked with supporters, detractors, clergy, lawyers, people currently serving sentences on death row, people once condemned to death but later exonerated, and in the case of Robert Shields, a death row inmate who was alive when we printed this edition but will have been executed by the time this issue is in your hands.
October 12, 2005
Major Florida ruling on application of Ring
The Florida Supreme Court issued a major opinion today in State v. Steele, No. SC04-802 (Fla. Oct. 12, 2005) (available here) concerning the application of Ring. Here are selections from the start of the opinion:
In this case, we consider two issues resulting from the United States Supreme Court's decision concerning capital sentencing in Ring v. Arizona, 536 U.S. 584 (2002): whether a trial court may require the state to notify the defendant of the aggravating factors on which it intends to rely, and whether a trial court may require the jury to specify each aggravating factor it finds, and the vote as to each....
Since Ring, this Court has not yet forged a majority view about whether Ring applies in Florida; and if it does, what changes to Florida’s sentencing scheme it requires. That uncertainty has left trial judges groping for answers. This case is an example. The Second District Court of Appeal certified to us two questions of great public importance:
(1) Does a trial court depart from the essential requirements of law, in a death penalty case, by requiring the state to provide pre-guilt or prepenalty phase notice of aggravating factors?
(2) Does a trial court depart from the essential requirements of law, in a death penalty case, by using a penalty phase special verdict form that details the jurors' determination concerning aggravating factors found by the jury? ...
For the reasons that follow, we answer "no" to the first question and "yes" to the second. We hold that under current law, a trial judge presiding over a case in which the death penalty is possible does not depart from the essential requirements of law by requiring the State to provide pretrial notice of the aggravators it intends to prove in the penalty phase. We also hold, however, that a judge does depart from the essential requirements of law by requiring a majority of jurors to agree that a particular aggravator applies. Such a requirement imposes a substantive burden on the state not contained in the statute and not required by Ring.
UPDATE: As detailed in this AP story, one of the most interesting aspects of the Steele decision is a concluding section of the opinion which urges the Florida legislature to revise the state's death penalty statute in light of Ring and other developments.
Women and mothers behind bars
This AP story about women offenders in prison is quite an interesting read, and I found especially notable some of the data it reports about prison populations:
Women are the fastest-growing segment of the U.S. prison population, a trend fueled by their growing involvement in drug crimes and by longer sentences in general. But once behind bars, their needs are often overlooked because of tight budgets and the attention given to sex offenders and death-row inmates, advocates say.
Prison and jail officials from around the country are to gather this weekend in Bloomington, Minnesota, to address the rising number of incarcerated women — more than 180,000 in prisons and jails nationwide, according to the Bureau of Justice Statistics....
Since 1995, the number of women in state and federal prisons has swelled more than 50 percent, outstripping an increase of about 32 percent for men. Female jail populations are growing even faster.
Most are mothers. Between 66 and 90 percent have children, depending on the type of institution. When a mother is locked up, her children usually end up in foster care or living with a relative other than their father. By contrast, most children with imprisoned fathers stay with their mothers.
UPDATE: Dan Markel at PrawfsBlawg follows up by noting here that he is co-authoring an interesting-sounding paper that seeks to "articulate which principles should govern accomodations to family interests, particularly in the context of incarceration." For anyone interested in my pre-Booker take on some related issues, check out Addressing Why: Developing Principled Rationales for Family-Based Departures, 13 Federal Sentencing Reporter 274 (2001).
Lots of Blakely action in Colorado
As detailed in the second half of this list of announcements, yesterday the Colorado Supreme Court granted cert on six different cases raising Blakely issues of various sorts. Back in May, the Colorado Supreme Court in Lopez issued long and thoughtful opinion applying Blakely to Colorado's presumptive sentencing scheme (basics here, commentary here); yesterday's cert grants address a number of inevitable follow-up issues. Also, notably, the Colorado Supreme Court issued GVRs based on Lopez in a number of other cases.
Interestingly, one of the cert grants comes in the case of People v. Johnson; as discussed here, in Johnson an intermediate Colorado appellate court held "that Blakely applies retroactively to the date that Apprendi established its new rule." Here's how the Colorado Supreme Court frames its cert grant in this Johnson case:
Whether the court of appeals erred in holding that Blakely v. Washington, 542 U.S. 126 (2004) is retroactive to the date Apprendi v. New Jersey, 530 U.S. 466 (2000) was announced.
Because the Colorado Supreme Court did such fine work in Lopez, I will be very interested to see how it handles all these Blakely issues and especially the retroactivity issue. The Court merits credit for taking on all these important follow-up Blakely issues; perhaps it might inspire SCOTUS to follow suit.
My Booker data "wish list"
Today marks the nine-month anniversary of the Supreme Court's Booker decision. Since I have been talking a lot lately about post-Booker data (see posts here and here and here), I thought I might celebrate the day by setting out my personal Booker data "wish list." Below I have detailed just some information I would like to see in order to get a more complete view of the shape of the post-Booker world of federal sentencing:
District Court Data Wish List:
- District-by-district data on within- and outside-the-guidelines sentences
- Data on the most commonly stated grounds for judicial departures and variances
- Extent-of-departure and extent-of-variance data for sentences outside the guidelines
- Data on within- and outside-the-guidelines sentences for first offenders
- Data on within- and outside-the-guidelines sentences for non-violent offenders
Circuit Court Data Wish List:
- Data on total number of post-Booker appellate dispositions by circuit
- Detailed data on "plain error" outcomes in the circuits
- Data on how many, and why, sentences have been found unreasonable
- Data on how many outside-the-guidelines sentences have been found reasonable
The latest issue of the Federal Sentencing Reporter assembles a lot of material exploring the question "Is a Booker Fix Needed?". Ultimately, I do not think this question can be sensibly answered until at least some of these data are available.
Still more cracks in crack sentencing guidelines
In this post, I noted the effective National Law Journal piece discussing post-Booker work by district courts to adjust the 100-to-1 sentencing disparity between crack and powder cocaine under the federal guidelines. As a fitting follow-up, this AP story reports that SDNY District Judge Shira Scheindlin on Tuesday "joined the chorus of jurists who say crack cocaine sentences are too harsh and that disparities between those sentenced for dealing crack cocaine and those penalized for powder cocaine cut along racial lines." The article quotes from Judge Scheindlin's written opinion in a case in which she apparently granted a Booker variance based on the crack/powder disparity, but I cannot yet find the opinion on-line.
UPDATE: The opinion referenced in the article is US v. Fisher, No. 03 CR 1501 (SDNY Oct. 11, 2005), is now available on-line and I also have provided a copy for download below. Here are a few passages from the start of the thoughtful opinion:
After the Supreme Court's decision in United States v. Booker, the statutory minimum sentences remain mandatory, but the Guidelines can no longer bind a sentencing court. Indeed, it would be unconstitutional under Booker for a court to treat the Guidelines as mandatory and conclude that it could not impose a sentence above or below the sentencing range determined primarily by the Drug Quantity Table....
This Opinion addresses the tension between a mandatory minimum sentence and a non-Guidelines sentence, the former based solely on the notion that crack cocaine dealers should be punished much more severely than powder cocaine dealers as a function of relative drug quantity. In short, the sentencing disparity created by the 100:1 ratio presents two significant dilemmas. First, the ratio is binding for one purpose — imposing the mandatory minimum sentence — but is not binding for the purpose of imposing the ultimate sentence. Second, the Guidelines sentence, determined primarily by drug quantity, is often inconsistent with section 3553(a) because it is greater than necessary to achieve the goals of sentencing.
October 11, 2005
First opinion of Roberts Court is a win for a criminal defendant! On habeas!
Thanks to a tip from my colleague, I discovered that the very first official opinion from the Roberts Court was handed down today in Dye v. Hofbauer, No. 04-8384 (S. Ct. Oct. 11, 2005) (available here). Criminal defendants will surely hope this decision is a sign of things to come: in Dye, the Supreme Court in a brief per curiam opinion grants review and summarily reverses a Sixth Circuit panel decision to deny habeas relief and thereby reinstates the federal habeas petition of a Michigan man convicted of murder in state court.
The procedural particulars of Dye are complicated, but this summary reversal ultimately reveals some real ugliness in the way the Sixth Circuit handled this habeas petition (and perhaps others) . Dye also raises interesting questions about Chief Judge Roberts' involvement in the decision. My (uniformed) guess is that the decision in Dye might have been (tentatively) reached in a conference led by Justice Stevens before CJ Roberts officially joined the Court last Monday. But, notably, the per curiam Dye opinion does not have any notation indicating that the Chief did not participate.
So, when playing the "law nerd" version of Trivial Pursuit, remember that the question "Who prevailed in the first written decision of the Roberts Court?," should be answered "convicted murderer Paul Allen Dye."
FOLLOW-UP: I received an interesting e-mail which, based on the docket sheet entries in Dye, had this to say about my speculation about who was involved in the decision-making in this case:
Your blog speculates that the decision to reverse summarily in Dye v. Hofbauer was first reached at a conference presided over by Justice Stevens. It is actually more likely that the decision to reverse summarily was tentatively reached at a conference presided over by Chief Justice Rehnquist on June 16, 2005, and firmed up over the summer after the Court received the full record June 23, 2005, and July 12, 2005 (with the author of the per curiam opinion -- which stylistic cues suggest may have been Justice Kennedy -- drafting over the summer). It is certainly the case that Chief Justice Roberts signed onto the opinion after the vast majority of the Court's consideration was already complete.
Few clues on capital views of CJ Roberts
This AP report on today's argument in Brown v. Sanders, the first capital case of the new SCOTUS term, suggests that Chief Justice Roberts was an active (and opaque) participant: "The new chief justice, John Roberts, asked a handful of questions during the arguments, seeking to get the attorneys to clarify their positions but not indicating clearly how he was inclined to rule."
The closing paragraphs of the AP story also spotlight some of my major frustrations with the Supreme Court's work in this area. As revealed by the quotes below, the High Court has a habit taking up cases that seem likely to impact no more than a small number of death sentences and the Court's decisions rarely even clarify precisely what that impact should be:
If the court agrees with the 9th Circuit that Sanders' death sentence should be overturned, death row inmates in California and other states with questions about factors considered in their sentencing could have a new basis for appeals. Kent Scheidegger, director of the Criminal Justice Legal Foundation, said there could be, roughly, dozens of such people nationwide.
Justice Stephen Breyer suggested the court might want to clear up the differences that exist from one state to another in how aggravating factors are used in death penalty sentencing. "We would not have this crossword puzzle that only five people in the United States understand," he said.
Still more Booker GVRs and cert denieds
In a replay from last week, this morning's order list from the Supreme Court includes a handful of Booker-inspired GVRs (I count five), as well as a long list of cert denieds. I believe there are many Booker-related cases in the cert denied list, and I also saw that the High Court denied cert in the Abeyta case from California which addressed that state's (mis)application of Blakely. Today's SCOTUS confirms my nagging suspicion that, despite my the real need for the Supreme Court to take up Blakely and Booker questions (as suggested in posts here and here), the Court will continue to dodge Blakely and Booker issues in the near future.
UPDATE: This AP report details a notable capital case on today's cert denied list: "The Supreme Court refused Tuesday to take up the case of California death row inmate Stanley "Tookie" Williams, a founder of the Crips street gang whose later work for peace won him a Nobel Peace Prize nomination."
Effective article covering crack/powder cocaine developments
Thanks to law.com, you can access this well-done article from the National Law Journal which discusses some post-Booker work by district courts to adjust the 100-to-1 sentencing disparity between crack and powder cocaine under the federal guidelines. As the article details, "[w]hat has emerged among recent federal court rulings are expressions by some of the jurists that a more reasonable ratio would be a 20-to-1 difference between crack and powder cocaine."
The article reviews the long history of the crack/powder debate and highlights a number of recent leading opinions on this issue. Unfortunately, the piece does not include any data on the total number of Booker variances based on the crack/powder disparity. (I'll have to add this issue to my developing wish list for data from the US Sentencing Commission.) The piece does include an astute and ominous suggestion by Professor Frank Bowman that the crack/powder issue "may actually end up being a flash point for the post-Booker problems" in Congress.
I have covered many of the decisions mentioned in the article (and others) in prior posts:
October 10, 2005
Notable Booker exploration from the 8th Circuit
It seems that even the federal holiday of Columbus Day cannot keep the Eighth Circuit from exploring the new world of Booker sentencing. Of the various dispositions detailed on this official opinion page, the most notable is the en banc decision in US v. Mooney, No. 02-3388 (8th Cir. Oct. 10, 2005) (available here). Blakely fanatics may recall that Mooney was the case in which, during summer 2004, an Eighth Circuit panel found Blakely applicable to the federal guidelines. That panel ruling was ultimately undone by the Circuit's decision to go en banc and now, over a year later, Mooney's sentence is affirmed thanks to the intervening Booker decision.
Most of Mooney is a debate over loss calculations and the application of the circuit's approach to Booker plain error. On this plain error issue, Judge Bright writing in dissent gets in some good shots:
I urge the Supreme Court to resolve the circuits' split on this issue, to eliminate the geographic crazyquilt by which many criminal defendants, sentenced for similar conduct and crimes, receive dissimilar appellate treatment under Booker and, in many cases, disparate sentences.
[T]his circuit has said to defendants, in effect, "tough luck," and left it at that. Worse, the court has said that the single relevant objective fact that is likely to appear in the record – namely, a sentence at the bottom of the applicable guideline range – is not enough to indicate the requisite "reasonable probability" that the sentence would be lower under advisory guidelines. The court’s willingness to apply here a doctrine that purports to resolve claims of legal error by posing a question that cannot, in the nature of the case, be answered suggests only that the court does not want to bother with most cases of unpreserved Booker error.
Capital case on SCOTUS agenda Tuesday
Thanks to Lauren Kofke at SCOTUSblog, you can with this post get up to speed on the capital case, Brown v. Sanders, No. 04-980, to be argued tomorrow and also learn all about the difference between "weighing" and "non-weighing" death penalty states. Given the buzz at the time of his nomination that CJ Roberts might be personally opposed to the death penalty, I will be eager to hear about the nature and tone of the new Chief's questions at oral argument (although I ultimately expect CJ Roberts' to vote a lot like his old boss CJ Rehnquist in capital cases).
At the time Justice O'Connor announced her retirement, she was rightly identified as a swing vote in some death penalty cases (see discussion here and here); it seems possible that her vote (or her replacement's vote) could be decisive in Brown v. Sanders and other capital cases on the High Court's calendar. A helpful and effective review of the capital issues before SCOTUS this terms can be found at this page at the Death Penalty Information Center website. It appears that, after tomorrow, the next big capital day for SCOTUS will be December 7 when both Oregon v. Guzak (discussed here) and Kansas v. Marsh (discussed here and here) will be argued.