October 22, 2005
Seeking retroactive Blakely "Justice for All"
There are so many interesting stories and angles to examine when considering pre-Blakely sentences that were indisputably imposed in violation of Blakely's constitutional command. I am thus proud to be able to provide for downloading a forthcoming article which thoughtfully covers many of these retroactivity stories and angle. This article, which is authored by one of my terrific research assistants and is soon to appear in the Ohio State Law Journal, is entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions." Here is the article's abstract:
In the months following the Supreme Court's holding in Blakely v. Washington, a countless number of state and federal prisoners were hopeful that their unconstitutionally imposed sentences would be revisited. For prisoners who were not given their Sixth Amendment right at sentencing, the question became — in the words of one prisoner — "Who is going to mount the vigorous and spirited campaign this cause so deserves?"
There are strong arguments to suggest that Blakely's requirement of jury fact-finding using the beyond a reasonable doubt standard of proof should be applied retroactively to cases on collateral review. Similar to Gideon, Blakely is a watershed rule of criminal procedure that implicates the fundamental fairness and accuracy of a proceeding. This result, however, is unlikely to occur. The other two branches of government must be prepared to ensure constitutionally just sentences for pre-Blakely defendants. The legislative branch should contemplate ways in which to minimize the effect a retroactive holding would have on the judiciary and should also correct the recent statutory interpretation of the habeas statute. The executive branch should use its historic remedy of correcting injustices through the clemency process. Constitutional justice can be accomplished for pre-Blakely defendants and all three branches of government must begin this dialogue to ensure justice for all.
So many sentencing developments
Though all the Miers buzz remains fascinating (and yet still incomplete on many fronts), big developments for sentencing fans are coming from so many other fronts. As is my practice, I have highlighted below just some of the highlights since my last review:
SCOTUS DEVELOPMENTS AND COMMENTARY
- SCOTUS taking up Blakely harmless error issue!
- O Recuenco, Recuenco, wherefore art thou granted Recuenco?
- Justice Scalia on Sixth Amendment errors as structural
- SCOTUS speaks to Atkins capital procedures
- Further reflections on Schriro v. Smith
- More on a big SCOTUS sentencing day
- First opinion of Roberts Court is a win for a criminal defendant! On habeas!
- The Chief goes swimming
- The best(?) argument in support of Harriet Miers
BOOKER DEVELOPMENTS AND COMMENTARY
- FSR call for Booker commentary
- Still more cracks in crack sentencing guidelines
- Another set of (limited) post-Booker data from the USSC
- My Booker data "wish list"
- Is it time for a USSC hearing about the post-Booker world?
- Notable 2d Circuit ruling on harmless error
- Seventh Circuit on departures and reasonableness review
- Mark your Booker calenders
BLAKELY DEVELOPMENTS AND COMMENTARY
- New Mexico Supreme Court deepens state split over Blakely
- Alaska on Blakely's applicability to juvenile transfer
- Lots of Blakely action in Colorado
- Will SCOTUS notice or care about Blakely errors in Tennessee?
- Divided Washington Supreme Court finds Blakely inapplicable to consecutive sentencing
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- Moussaoui wowie
- Major Tennessee ruling upholds lethal injection protocol
- The latest on bill to restrict habeas
- Virginia governor campaign spotlights death penalty and religion
- New resource examining religion and the death penalty
- Major Florida ruling on application of Ring
- Few clues on capital views of CJ Roberts
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Amazing Stanford Law Review issue on "More Perfect" sentencing reforms
- Parsing the latest crime stats
- Interesting new report on 3-strikes in California
- Fascinating Illinois decision on proportionality
- Women and mothers behind bars
October 21, 2005
Paul McNulty to be Deputy Attorney General
As detailed in this AP story, "Paul McNulty, a federal prosecutor in Virginia, was chosen Friday by President Bush to serve as the No. 2 Justice Department official." DOJ fans will recall that this position became open again after prior nominee Timothy Flanigan withdrew due to confirmation problems.
More background on McNulty can be found in this official press release and this NY Times story. Also worth noting is that, as detailed in this January 2005 post, McNulty gave a speech right after Booker at the Virginia School of Law in which he seemed to endorse the kind of mandatory minimum guideline system that Attorney General Alberto Gonzales has been promoting.
New Mexico Supreme Court deepens state split over Blakely
I just got news of another major development concerning in Blakely in the states. Contributing to what I have called a form of judicial federalism, the New Mexico Supreme Court has added another chapter to the dynamic (and confusing) story of diverse state high court Blakely rulings. (Interestingly, this major New Mexico Blakely ruling apparently came down last week, but I just heard about it today and it does not yet appear on either Lexis or Westlaw.)
In New Mexico v. Lopez, No. 28 483 (N.M. Oct. 14, 2005) (available here), the New Mexico Supreme Court dodged applying Blakely to the state's sentencing system. The Lopez court relied heavily on the controversial California Supreme Court decision in Black which found Blakely essentially inapplicable to California's determinate sentencing scheme (Black basics here, commentary here and here). The Lopez decision by the New Mexico Supreme Court, along with a partial dissent from Justice Chavez, makes for quite interesting reading. Here are just a few of many notable passages from the majority opinion in Lopez:
We perceive ambiguity within Blakely and Apprendi that has contributed to inconsistent opinions from the Court of Appeals. We believe that Booker provides a basis for believing [that our pre-Blakely decision rejecting Apprendi's applicability to our sentencing system] was decided correctly. As the California Supreme Court has reasoned in Black, the United States Supreme Court cases ought not be viewed as "draw[ing] a bright line, but Booker makes clear that the concept of a discretionary sentencing decision is not limited to those decisions that involve complete, unguided, and unreviewable discretion."...
Our Legislature did not intend to confer a right to a basic sentence but rather to limit the trial court's discretion to punish within a range by taking into consideration a wide range of circumstances, and to provide for meaningful appellate review. We believe our sentencing scheme reflects an appropriate legislative deference to judicial discretion in sentencing as well as respect for the jury's role in determining guilt or innocence of crimes defined by statute. The mandatory language of Section 31-18-15(B) and writing requirement of Section 31-18-15.1(A) were intended to limit the judge's sentencing discretion by imposing a standard of reasonableness, rather than creating a right in defendants to be sentenced to the basic sentence. See Black, 113 P.3d at 543-44.... We believe New Mexico's sentencing scheme, so construed, is consistent with Booker.... We conclude, as did the California Supreme Court in reviewing its state's sentencing scheme, that New Mexico's sentencing scheme illustrates an appropriate reliance on judicial discretion to sentence following a jury verdict, bench trial, or guilty plea.
Of Booker interest from the Circuits
The federal circuit courts have been relatively quiet on the Booker front this week, but at least two decisions issued today merit mention:
From the Fifth Circuit, in US v. Hinson, No. No. 04-10995 (5th Cir. Oct. 21, 2005) (available here), we learn that the defendant "was not entitled to have a jury determine the facts that gave rise to the revocation of her supervised release or the facts that underpin the duration of her sentence upon revocation." In other words, Blakely and Booker do not create Sixth Amendment problems for judicial factfinding in the course of revoking terms of supervised release.
From the Seventh Circuit, in US v. Duncan, No. No. 04-1916 (7th Cir. Oct. 21, 2005) (accessible here), a failure to follow the right procedures in a limited Booker remand lead the court to "take this opportunity to respectfully remind the district court that, upon re-sentencing, it must provide a reasoned explanation for its action so that we are able to fulfill, in due course, our duty to determine whether the sentence is reasonable."
UPDATE: Guideline sentencing fans will also want to be sure to check out the First Circuit's work on various issues in US v. Mateo-Espejo, No. 03-1177 (1st Cir. Oct. 21, 2005)(available here), and the Fourth Circuit's work on substantial assistance departures in US v. Barnette, No. No. 04-4436 (4th Cir. Oct. 21, 2005) (available here).
The Chief goes swimming
Though I am sure Article III Groupie loves the thought of Chief Justice Roberts wearing a bathing suit underneath his robe, the Chief's swimming referenced in this post title concerns his participation in the cert pool. Here is a report of Roberts' dip in the pool from this article by Tony Mauro:
In one of his first major decisions about how he will operate as a justice, Roberts, when asked about the pool this week said through the Court public information office that he was joining it for at least his first year. That qualifier went unexplained, but it at least suggests the possibility that once Roberts gets settled in, he will take another look.
With eight justices — all except John Paul Stevens — participating, the pool has come in for criticism for giving individual clerks too much power to determine the fate of cases. Even Stevens does not read all the incoming petitions, which means that most are never seen by any justice.
Back when Roberts was a practitioner who had to explain to clients why clerks were the only ones reading his work product, Roberts himself said in a speech that he found the pool "a little disquieting." So when he took the reins of the Court Oct. 3, it seemed possible that Roberts might stay out of the pool or, as he suggested in 1997, create "parallel pools" so that each petition would be looked at by at least two pool clerks.
In this post back in August, I speculated that the SCOTUS emphasis on capital cases is a by-product of clerk interest and the operation of the cert pool. And in this post I suggested that the greatest impact of a Chief Justice Roberts could be through efforts to expand the Supreme Court's caseload and to reform the operation of the cert pool. Thus, while the Miers' buzz continues, I actually think this cert pool story could be the biggest SCOTUS news of the day.
UPDATE: Lyle Denniston over at SCOTUSblog has this interesting post discussing the cert pool which suggests that it is at least partially responsible for the Court's shrunken docket.
October 20, 2005
A kind reader alerted me to this notable sentencing tale emerging from Oklahoma:
A man got a prison term longer than prosecutors and defense attorneys had agreed to — all because of Larry Bird. The lawyers reached a plea agreement Tuesday for a 30-year term for a man accused of shooting with an intent to kill and robbery. But Eric James Torpy wanted his prison term to match Bird's jersey number 33.
"He said if he was going to go down, he was going to go down in Larry Bird's jersey," Oklahoma County District Judge Ray Elliott said Wednesday. "We accommodated his request and he was just as happy as he could be."
NBA fans will appreciate the accompanying commentary from the basketball guru who sent me this item: "Bad lawyering by the defense, if you ask me — I would've asked the sentencing judge to honor Robert Parish, or at least Dennis Johnson...."
Amazing Stanford Law Review issue on "More Perfect" sentencing reforms
I thought it would be hard for any law journal to rival the work done by the Columbia Law Review in its amazing May issue, which published papers from its recent symposium "Sentencing: What's at Stake for the States?". But, thanks to the just-produced October issue of the Stanford Law Review, I am no longer sure who will win the award for the "Best 2005 Law Journal Issue on Sentencing" (which, I believe, is a new category at the ESPYs).
The October issue of the Stanford Law Review, which includes my recent offense/offender article, was a special project conceived by Professors Robert Weisberg and Marc Miller in the wake of last year's fantastic symposium at Stanford Law School entitled "The Future of American Sentencing: A National Roundtable on Blakely." (Background on the Stanford event can be found here and here, and highlights here.) I have receive a copy of the table of contents for the issue, which is available for download below, and here is a partial account of the issue and its goals drawn from a letter to the press from the Stanford folks producing the issue:
This Issue focuses on the future of federal sentencing law and synthesizes the wisdom of the nation's leading experts in the field, who acted with remarkable speed in addressing the most practical and urgent concerns about federal sentencing now confronting the Judiciary, as well as Congress and the Executive. Because these experts provided such valuable insight, the Stanford Law Review decided to distribute the Issue in an unprecedented manner to all members of Congress and all federal district and appellate court judges, as well as federal and state sentencing commissions. This Issue, in sum, is a rare contribution from the scholarly world — the publication of which is also a very significant public event....
In producing this Issue, our goal has been to provide an overview of the current state of American sentencing and to present a variety of perspectives on the issues that Congress will likely have to consider in order to reshape the Federal Sentencing Guidelines. We share it to assist in your own coverage of the political and legal dramas about to unfold, and we hope you will see the distribution of this special Issue as itself a major stage in this civic process.
Over at SCOTUSblog, Lyle Denniston has this fascinating post discussing legal developments in the case of Zacarias Moussaoui, the only person charged in the United States with a crime for a role in the September 11 terrorist attacks. Lyle explains the arguments being made by defense counsel, and opposed by prosecutors, for the possible "trifurcation" of Moussaoui's death penalty trial.
Interesting new report on 3-strikes in California
A new report on California's three-strikes law, entitled "A Primer: Three Strikes — The Impact After More Than a Decade," was released today by the state's nonpartisan Legislative Analyst's Office. The report, which can be accessed at this link, appears to be a thorough and thoughtful (and very accessible) discussion of a number of important sentencing issues relating to California's very tough recidivism laws. The introduction to the report explains its coverage: "we summarize key provisions of Three Strikes and You're Out; discuss the evolution of the law in the courts; estimate the impact of the law on state and local criminal justice systems; and evaluate to what extent the law achieved its original goals."
The report is discussed in this recent Los Angeles Times article, which highlights that the report finds that the three-strikes sentencing law "passed by California voters in 1994 costs the state $500 million annually in prison expenses — far less than originally predicted — but there remains no consensus on whether it has made the streets safer." As revealed by the chart you can click on above, perhaps the biggest impact of the three-strikes law (despite its name) is felt by criminals found guilty of a second strike.
The best(?) argument in support of Harriet Miers
The morning blogosphere buzz around Harriet Miers, as a result of this Wall Street Journal commentary by Ronald Cass and Kenneth Starr, concerns her experience with business law issues. Cass and Starr say they "value [Miers'] significant experience in business law." But Gordon Smith over at the Conglomerate in this post thoroughly and effectively argues that "her nomination hardly merits praise for bolstering the Court's business law expertise. If that were the primary goal, I suspect that President Bush could have found hundreds of more qualified candidates."
Meanwhile, Ann Althouse and her commentors are here exploring reasons given to support the Miers' nomination. Ann's post and the comments are an interesting read, but no one there — or anywhere else, including in the White House — has hit upon what I view as the best argument in support of Miers' nomination: Harriet Miers, as a result of her work on improving legal services for the poor and aiding prisoner re-entry, has had distinct experience and likely has a distinctive perspective on important modern criminal justice issues.
I am personally torn over the Miers' nominations. Her qualifications and talents seem so uninspiring; and yet I believe — or at least want to believe — that her distinctive (though limited) experiences in the criminal justice arena could make her a valuable addition to a Supreme Court that is necessarily far removed from the day-to-day realities and systemic problems of the modern criminal justice system.
Of course, in these law-and-order times, it comes as no surprise that this White House is not promoting Miers' work on behalf of the ultimate "little guy" — poor persons accused and convicted of criminal wrong-doing. Nevertheless, since nearly half of the Supreme Court's docket involves criminal cases or related issues, I continue to believe Miers' work in the criminal justice arena should be a significant part of the public dialogue over her nomination. I thus remain quite disappointed that neither the mainstream media or blogosphere has given serious attention to these issues.
I will, of course, continue to tilt at these windmills, hopeful that the quest for new angles on Miers will eventually lead others to start exploring criminal justice issues. As I have suggested before, broader public examination of the criminal justice system in the context of the Miers' nomination could be very interesting: in part because of all the buzz about Miers' religion and how this background might bespeak a new right on sentencing issues, such an examination holds some hope of avoiding the usual knee-jerk right/left discussion of being tough or soft on crime.
Some related prior posts:
Another set of (limited) post-Booker data from the USSC
I just discovered that another new batch of post-Booker sentencing data is now available at this link over at the US Sentencing Commission's Booker webpage. This latest USSC post-Booker sentencing update includes all cases sentenced by close-of-business on September 30, 2005, and the cumulative data now cover over 41,500 cases. From a quick review, the latest numbers continue the basic stories that emerged from the data released over the summer (details here and here, commentary here).
Though I am pleased to see the USSC continuing to update the basic Booker numbers, I think it is time for the Commission to start adding more flesh to the bare data bones of its periodic reports. As I explained in this recent post, cumulative and even circuit-by-circuit within-guideline data provide only a superficial view of post-Booker realities. District-by-district data and data on the extent of departures and variances are essential for a true understanding of federal sentencing after Booker. I was disappointed (though not really surprised) that the USSC's latest numbers do not provide any of the items detailed on my Booker data wish list.
Moreover, because even the basic post-Booker data are easily mis-understood and because there is a growing Booker fix buzz, I think it is essential for the USSC to start providing some accompanying commentary along with its data reports. An enduring and important mystery in the data is why average and median sentence lengths are actually rising (especially in drug cases) post-Booker even though there are more below-guideline sentences now than pre-Booker. (My guess is that a change in the case mix accounts for this surprising development, but only the USSC has the raw data to explain what is really going on.)
The latest on bill to restrict habeas
Marcia Coyle writing for The National Law Journal has this terrific article discussing the latest developments surrounding the proposed Streamlined Procedures Act, which could significantly limit habeas appeals in federal courts. As the article details, in the Senate, a "substitute measure — offered by judiciary Chairman Arlen Specter, R-Pa. — [is now] on the table, and Democratic committee members have pressed successfully for a public hearing on it on Oct. 26."
As previously noted here, the Campaign for Criminal Justice Reform has created this very helpful webpage about the legislation. The latest newsletter from this group also discusses the dynamic status of efforts to curtail habeas through the Streamlined Procedures Act.
Here are some prior posts covering these important issues:
- Hands off habeas
- Growing opposition to bill seeking further habeas restrictions
- Terrific habeas debate over at Debate Club this week
- An engaging (but incomplete) habeas debate
- Senate hearings on new habeas restrictions
- House hearing on death penalty and habeas bills
October 19, 2005
FSR call for Booker commentary
Completed around the six-month anniversary of the Booker decision, the latest issue of the Federal Sentencing Reporter asks "Is a Booker Fix Needed?". As a follow up to this important question, and with the one-year anniversary of Booker on the horizon, the Federal Sentencing Reporter is now soliciting commentaries addressing the question "How should Congress and the U.S. Sentencing Commission respond to Booker?". Available for download below is a short document with some background on this topic and project, and here is the essence:
After the Supreme Court's Booker decision in January, many commentators urged Congress to allow the advisory guideline system created by Booker to remain in place for a year "to give it a chance to work" and to allow sufficient time to evaluate its efficacy. This suggested observation period is coming to a close, and the Federal Sentencing Reporter is soliciting short commentaries (under 2000 words) addressing what Congress and the U.S. Sentencing Commission should do now.
FSR is eager to hear from many persons representing a wide variety of perspectives, and commentaries might address, for example, how Congress and the USSC should assess the efficacy and justice of federal sentencing after Booker or what should be the focal points of the USSC planned Booker report. Thoughtful and well-written commentaries received by November 15 will be slated for publication in FSR's December 2005 Issue; those received by January 9 will be slated to appear in FSR's February 2006 Issue.
For more information, contact me at this link and download this document: Download fsr_call_for_booker_commentary.rtf. Also, related "Booker fix" food-for-thought can found throughout the blog and especially in posts linked below:
- A bit of Booker fix buzz
- Is the Booker remedy here to stay?
- FSR Issue asks: Is a Booker Fix Needed?
- Background on AG Gonzales' proposed Booker fix
Parsing the latest crime stats
Earlier this week, as detailed in this CNN report, the FBI released its major crime report, Crime in the United States 2004. The good news, as CNN explains, is that the "U.S. violent crime rate declined 2.2 percent last year, continuing a decade-long downward trend in serious offenses," and "all major categories of violent crime in the United States declined in 2004, bringing the rates of the most serious offenses, including murders, rapes, robberies and assaults, to a level 32 percent lower than those reported in 1995." The FBI's website makes readily accessible many interesting features of the report, including this crime map and this crime clock.
I am hoping that many social scientists will parse this latest data for new insights about the relationship between crime and sentencing. As I mentioned late last year in this post, 2004 ought to be a uniquely rich and interesting time period for examining the relationship between sentencing policies and crime rates:
- On the death penalty front, as noted here, 2004 has given us the first execution-free month in a decade and in the last few years we have seen nationwide declines the total number of death sentences and in the total number of executions. And yet it appears that murder rates continue to decline even though we apparently are making less frequent use of capital punishment.
- In the non-capital sentencing arena, Blakely's impact on sentencing law and policy should, under rational deterrence theory, impact crime rates in the second half of 2004: rational criminals doing cost-benefit analysis should have realized that Blakely made it harder for some jurisdictions with constitutionally problematic guideline systems to impose long sentences. (Of course, especially for the most serious crimes, I do not think there are really any "rational criminals doing cost-benefit analysis.")
Because I do not have any economics or social science training, I can do no more than spotlight these issues and hope that other folks much smarter than me start giving these matters serious attention. Perhaps this latest data will capture the attention of the Freakonomics folks, who have previously brought distinctive perspectives to bear on questions of crime and punishment (including important insight in this recent post on the Bill Bennett brouhaha and this recent article on crack violence).
BALCO defendants sentenced
With a hat tip to the White Collar Crime Prof Blog, here is the SI/AP account of the sentencing Tuesday of various defendants in the BALCO steroids case, including BALCO head Victor Conte. The sentences were all light as a result of plea deals; Conte received the longest sentence of four months in prison and four months' home confinement.
Were I the sentencing judge, I would have also ordered Conte to write notes of apology to every baseball fan like me who is disappointed that steroids ruined the specialness of hitting 50 home runs in one season.
UPDATE: This USA Today article asks "Was BALCO probe worth all the time, money and trouble?" and has a lot of interesting quotes and comments about the plea deals and sentences.
October 18, 2005
Briefing on Blakely's applicability to restitution and forfeiture
As detailed in this post, last month the Third Circuit sua sponte voted to rehear en banc three appeals in which the issue is whether Blakely and Booker applies to orders of restitution and forfeiture. A helpful reader has alerted me that the Third Circuit oral argument in these cases is slated for the morning of Tuesday, November 1, at 9:30am, and he has also kindly forwarded to me all the briefs filed as part of the en banc proceeding. These briefs make for interesting reading, and I have provided them for downloading below.
- Download govt_en_banc.pdf
- Download en_banc_amicus.pdf
- Download FPD-EnBancSuppBrief.pdf
- Download another_en_banc_supp_brief.pdf
Interesting themes in Miers' first answers to Judiciary Committee
Thanks to How Appealing and the National Review Online, everyone can read for themselves Harriet Miers' response to the Senate Judiciary Committee's written questionnaire at this link. Though there are notable nuggets of information throughout the document, her answer to the very last question on judicial activism (starting on p. 55) provides nearly all the money quotes. Consider, for example, these statements from Miers about stability, stare decisis and judicial independence:
As I entered private practice, I grew to appreciate even more the importance of predictability and stability in the law, and came to believe that those values are best served by a rigorous and focused approach to the law....
"Judicial activism" can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent. Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling....
The example of Judge Estes helped to instill in me an appreciation for the importance of judicial independence that has only grown stronger over time. Criticism of courts that overstep their role is justified. We must zealously guard, however, the independence of the courts. While legitimate criticism of judicial activism is healthy, even essential, we must be wary of unduly criticizing judges merely because we disagree with the result in a particular case. Judges are given life tenure and independence to shield them from the potential tyranny of the majority. While life tenure and independence should not be a license to usurp the rule of law in favor of a rule of man, they provide an essential structural protection to ensure that judges are able to make decisions based only on the fundamental vision of the Founders — the rule of law.
Of course, while everyone else is going to parse these comments through the lens of Roe, I like thinking about what they might mean for Almendarez-Torres and Harris and Blakely and Booker and death penalty jurisprudence.
Some recent related posts:
Justice Scalia on Sixth Amendment errors as structural
The Court's fascinating and important decision to grant cert in Recuenco to consider whether Blakely error can be harmless (basics here, commentary here) has led me to go back and re-read Neder v. US, 527 U.S. 1 (1999) (available here) and Sullivan v. Louisiana, 508 U.S. 275 (1993) (available here), which are two critical precedents for the ultimate resolution of Recuenco. Both cases are fascinating reads, in part because of the sparring between Chief Justice Rehnquist and Justice Scalia and because of Justice Scalia's obvious distain for harmless-error review in the context of Sixth Amendment jury trial violations.
Recuenco is especially fascinating because, with the loss of CJ Rehnquist's competing voice, Justice Scalia is the only current Justice who has written opinions on these issues. And, for that reason and others, I cannot resist quoting some especially choice passages from Justice Scalia's dissent in Neder:
When this Court deals with the content of [the jury trial] guarantee — the only one to appear in both the body of the Constitution and the Bill of Rights — it is operating upon the spinal column of American democracy....
Even if we allowed (as we do not) other structural errors in criminal trials to be pronounced "harmless" by judges ... it is obvious that we could not allow judges to validate this one. The constitutionally required step that was omitted here is distinctive, in that the basis for it is precisely that, absent voluntary waiver of the jury right, the Constitution does not trust judges to make determinations of criminal guilt. Perhaps the Court is so enamoured of judges in general, and federal judges in particular, that it forgets that they (we) are officers of the Government, and hence proper objects of that healthy suspicion of the power of government which possessed the Framers and is embodied in the Constitution. Who knows? — 20 years of appointments of federal judges by oppressive administrations might produce judges willing to enforce oppressive criminal laws, and to interpret criminal laws oppressively — at least in the view of the citizens in some vicinages where criminal prosecutions must be brought. And so the people reserved the function of determining criminal guilt to themselves, sitting as jurors. It is not within the power of us Justices to cancel that reservation — neither by permitting trial judges to determine the guilt of a defendant who has not waived the jury right, nor (when a trial judge has done so anyway) by reviewing the facts ourselves and pronouncing the defendant without-a-doubt guilty. The Court's decision today is the only instance I know of (or could conceive of) in which the remedy for a constitutional violation by a trial judge (making the determination of criminal guilt reserved to the jury) is a repetition of the same constitutional violation by the appellate court (making the determination of criminal guilt reserved to the jury).
Of course, five Justices rejected these sentiments in Neder. But, two of those five (Rehnquist and O'Connor) will not be involved in resolving Recuenco. And another Justice in the Neder majority, Justice Thomas, seems to be a much bigger fan of jury trial rights now than he was in 1999.
Major Tennessee ruling upholds lethal injection protocol
With thanks to Howard for this head's up, I see this news that the Tennessee Supreme Court on Monday "upheld the state's use of lethal injection in executions, rejecting a challenge by death row inmate Abu-Ali Abdur'Rahman." Here is the official summary from the decision in Abdur'Rahman v. Bredesen, No. M2003-01767-SC-R11-CV (Tenn. Oct. 17, 2005) (available here):
We granted review to address several issues regarding the Tennessee Department of Correction's protocol for executing inmates who have been sentenced to death by lethal injection. After our review of the record and applicable authority, we conclude that the lethal injection protocol in Tennessee, which includes intravenous injections of sodium Pentothal, pancuronium bromide, and potassium chloride, (1) does not violate the Eighth Amendment to the United States Constitution or article I, section 16 of the Tennessee Constitution, (2) does not violate due process provisions under the United States or Tennessee Constitutions, (3) does not deny access to the courts in violation of the United States or Tennessee Constitutions, (4) does not violate the Uniform Administrative Procedures Act, (5) does not violate the Nonlivestock Animal Humane Death Act, (6) does not violate provisions governing the practice of medicine and provision of healthcare services, and (7) does not violate the Drug Control Act or Pharmacy Practice Act.
Related prior posts:
- Notable ruling on constitutionality of lethal injection
- The legal attack on lethal injection
- More on constitutional challenges to lethal injection
- Are four Justices ready to grant cert. on the constitutionality of lethal injection protocols?
Further reflections on Schriro v. Smith
The enduring story from Monday's SCOTUS action is the Court's fascinating and important decision to grant cert in Recuenco to consider whether Blakely error can be harmless (basics here, commentary here). But, before I continue my obsession with that case, I must give a little more attention to the Court's little opinion in Schriro v. Smith (discussed here) concerning the procedures for adjudicating Atkins claims by capital defendants.
First, I think it is critical to understand Schriro v. Smith as a decision about habeas authority and not as a direct or even implied ruling about the required procedures for adjudicating a capital defendant's claim of mental retardation. The leads in this Washington Post story and this AP story on Schriro v. Smith could be mis-read to suggest it includes some sort of ruling on the merits. But exactly what are required Atkins procedures remains unresolved until SCOTUS formally takes up the issue (which, to venture a prediction, will probably not happen until OT 2006).
Second, whenever SCOTUS takes up this issue on the merits, the case will serve as an interesting test of the Court's commitment to jury trial rights. Sean Sirrine in this post reads Ring and Apprendi to require a jury trial on the issue of mental retardation. But I think the Court could (and should?) rely on a distinction raise by Justice Stevens in Apprendi to call mental retardation a mitigating fact that can be left to judges. A distinct but related matter concerns the allocation and burden of proof concerning mental retardation; I can envision a number of opinions on this consequential issue.
Third, the fact the first two opinions of the Roberts Court have involved intricate criminal matters emboldens me to continue kvetching about the lack of attention being given to criminal justice issues in the hearings and media buzz around new Justices.
October 17, 2005
O Recuenco, Recuenco, wherefore art thou granted Recuenco?
The Supreme Court's cert. grant in Washington v. Recuenco has me in a Shakespearian mood as I try to figure out exactly why the Court decided its next foray into Apprendi-land should involve the intricate issue of whether Blakely errors can be subject to harmless-error analysis under Neder v. US, 527 U.S. 1 (1999) (available here) or instead qualify as structural errors under Sullivan v. Louisiana, 508 U.S. 275 (1993) (available here). The easy answer to why Recuenco, I suppose, is that the lower courts have split on this question, with most courts applying harmless-error analysis, but a few state supreme courts concluding that Blakely errors are structural. And, since Washington has taken the structural error approach (along with North Carolina and maybe New Jersey), one might also speculate that at least four Justices think the Washington Supreme Court is wrong on the merits and this issue needs to be cleaned up.
But the decision to grant cert in Recuenco is not that simple and the case has intricacies that may entail another complicated and opaque chapter in the Apprendi-Blakely saga. First, as commentor DEJ notes here, this Blakely harmless/structural error issue could have a profound impact on the Booker plain error story (and some may even claim that Booker itself indirectly resolved this issue). Second, Washington's statutory law and the exact posture of this case on appeal suggests that Recuenco is not the ideal vehicle for sorting through these harmless/structural error issues. Third, given the current SCOTUS sentencing head-count on Apprendi-Blakely issues, as well as Justice Scalia's vocal advocacy against Sixth Amendment harmless-error analysis and the presence of new Justices, all bets are off concerning the ultimate outcome in Recuenco.
To close with more of the Bard, I am now worried that the disposition of Recuenco might come to resemble a SCOTUS tale along the lines of A Midsummer Night's Dream or Twelfth Night.
Notable 2d Circuit ruling on harmless error
While still trying to wrap my mind around the Supreme Court's cert. grant today on Blakely harmless error in Washington v. Recuenco, I noticed that the Second Circuit in US v. Fuller, No. 04-4595 (2d Cir. Oct. 17, 2005) (available here) issued an interesting opinion on Booker harmless error. Marking out a path that distinguishes the Second Circuit from, I believe, every other circuit, the Second Circuit in Fuller concluded that the announcement of an identical alternative sentence during the Blakely-Booker interregnum does not render Booker error harmless. Here the Fuller opinion's introductory summary:
We consider here whether a sentence imposed by the United States District Court for the Southern District of New York (Colleen McMahon, Judge) that was styled "in the alternative" — i.e., as the sentence of the Court regardless of whether or not the U.S. Sentencing Guidelines were binding — during the period after the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), but before its decision in United States v. Booker, 125 S. Ct. 738 (2005), was error in light of the subsequent teachings of the Supreme Court and our related jurisprudence, and if so whether such error is harmless. Because, with the benefit of hindsight, we conclude that the sentence amounted to error that we cannot deem harmless, we remand the cause to the District Court with instructions to vacate defendant's sentence and resentence him in conformity with our opinion in United States v. Fagans, 406 F.3d 138 (2d Cir. 2005).
More on a big SCOTUS sentencing day
I will have a lot more to say in subsequent posts about the Supreme Court's fascinating and important decision to grant cert today in Washington v. Recuenco, No. 05-83, to consider whether Blakely error can be harmless. But first I wanted to wrap up the news from a big SCOTUS sentencing day.
As first reported in this post, today we received the second opinion from the Roberts Court. Schriro v. Smith involved, like the first opinion from the Roberts' court, a habeas case with the High Court stepping in to remedy what it considered to be over-reaching by a circuit court. At issue in Smith is the process for adjudicating claims by a capital defendant that he is mentally retarded and thus exempt from execution after Atkins. This issue has significantly divided lower courts (see, e.g., posts here and here and here on this topic), and the brief unsigned ruling in Smith will not resolve any of these divisions. This issue will surely return to the High Court for an adjudication on the merits eventually.
In addition, today's order list is the first major set of orders without any Booker GVR's. This notable reality suggests that, a full nine months after the Booker ruling, the pre-Booker appellate pipeline has significantly (though probably not entirely) been cleared out. This order list also has more than 100 cert. denieds, some of which I would guess involve Booker claims.
Finally, though not technically a sentencing case, it is telling and interesting that, as reported here by Lyle Denniston, the first abortion case addressed by the Roberts Court resulted from a Missouri inmate's efforts to obtain an abortion over the objection of state officials. This news certainly reinforces my observations here earlier this year about the frequent intersection at SCOTUS of criminal justice, constitutional law, federalism and hot-button issues.
More on Miers from her Texas Bar days
As noted in this post, the new White House strategy for pitching Miers is to focus on her qualifications. Thanks to a helpful reader, I see that the State Bar of Texas aids this cause by making available, at this website, materials from Miers' tenure as President of that Bar. The materials now available there include a Q&A with Miers from the June 1992 Texas Bar Journal, and on this page the "President's Opinions" that Miers wrote for the Texas Bar Journal during her 1992-1993 term as president.
A very quick scan of these 11 brief "Opinions" do not greatly enhance what we already know about Harriet Miers, nor do they provide many clues as to how she might reach and write other opinions in the future. Most of these columns discuss the importance of lawyers acting ethically and committing time to pro bono work, although the themes of ensuring legal representation for the poor and diversifying the legal profession come through in many of these TBJ columns.
Especially given all the talk about where Miers went to law school and the intensity of the blogosphere buzz about her nomination, I found Miers' March 1993 TBJ column the most interesting of the bunch. This column starts by commenting upon an article discussing a controversy then raging at Harvard Law School, which Miers calls "shocking ... for two principal reasons:"
It describes some of the best and brightest among our nation's people as deeply divided along political and philosophical lines with an inability to engage in civil dialogue. Secondly, the story depicts the conduct of some of these best and brightest in our legal community as suggestive of a disturbing lack of respect for anyone with a different view. The article particularly spotlights divisions based on race and gender issues.
Later in the column, Miers has this to say about the role and responsibilities of lawyers:
Lawyers are about seeking the truth, preserving a system to achieve fairness and justice, and protecting the freedom of individuals against the tyranny of the majority view. Lawyers have superior education, training, and communication skills. We should be role models for our nation and its people and we should be leaders. If lawyers fail to achieve respect for one another and cultivate civility among members of the profession, then it is predictable that society as a whole will fail.
SCOTUS speaks to Atkins capital procedures
My SCOTUS sentencing cup runneth over. In addition to the big news that the Supreme Court has granted cert. on Blakely harmless error, SCOTUSblog also notes that the Court today, in a two-page unsigned opinion, has spoken to the procedures to be used to consider claims by capital defendants that they are mentally retarded and thus exempt from execution after Atkins. Here is Lyle Denniston's report on the decision:
In a two-page, unsigned opinion, the Court ruled that states must be given a chance to develop their own ways of deciding whether a convicted murderer is mentally retarded, and thus cannot be executed. It overturned a Ninth Circuit decision that ordered the state of Arizona to let a jury decide the retardation issue. "Arizona had not even had a chanced to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition," the Court said. There were no recorded dissents in Schriro v. Smith (04-1475).
UPDATE: The Supreme Court's opinion in Schriro v. Smith, No. 04-1475 (S. Ct. Oct. 17, 2005) is available at this link. Here is the heart of the Court's holding and analysis:
The Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith's mental retardation claim. Atkins stated in clear terms that "we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." 536 U. S., at 317 (quoting Ford v. Wainwright, 477 U. S. 399, 416-17 (1986); modifications in original). States, including Arizona, have responded to that challenge by adopting their own measures for adjudicating claims of mental retardation. While those measures might, in their application, be subject to constitutional challenge, Arizona had not even had a chance to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition.
Because the Court of Appeals exceeded its limited authority on habeas review, the judgment below is vacated, and the case is remanded for further proceedings consistent with this opinion.
ANOTHER UPDATE: Here is the AP story on Schriro v. Smith.
SCOTUS taking up Blakely harmless error issue!
Though I won't credit all my whining about the need for the Supreme Court to start addressing all the important issues left unresolved by Blakely and Booker (see, e.g., here and here), I will celebrate the big news coming from Lyle Denniston at SCOTUSblog that the Court today granted cert in "a significant sequel to its series of rulings on the roles of judges and juries in criminal sentencing" by accepting for review "the issue of whether a violation of the jury's role in sentencing can ever be excused as 'harmless error.'"
The case taken up by SCOTUS is Washington v. Recuenco (docket 05-83). The decision by the Washington Supreme Court was rendered in April and is available here. I reported on the decision in this post.
October 16, 2005
Will the MSM ever look at Miers and criminal justice issues?
I am pleased to see that some folks over at The Volokh Conspiracy are exploring the Miers' nomination through the lens of criminal justice issues: Orin Kerr speculates here on how Miers might handle death penalty cases, and Juan Non-Volokh notes here how much of the High Court's constitutional work is in the arena of criminal procedure. Now I am wondering when the mainstream media will get with the program.
Notably, in two weeks since Miers' nomination, we have seen articles about her 1968 law review note and about her girls' nights out, and now we know from this NY Times article that she is a "very good bowler" who "gets a lot of action out of the pins." But, to my chagrin, we still have not seen a single article exploring Miers' notable work with the prisoner re-entry group Exodus Ministries, and there has been precious little coverage of her vocal advocacy for adequate funding of indigent defense.
Especially since nearly half of the Supreme Court's docket involves criminal cases or related issues, I have been hopeful we could see a robust public exploration of Miers' work in the criminal justice arena. Moreover, because of all the buzz about Miers' religion and how this background might bespeak a new right on sentencing issues, broader public examination of the criminal justice system in the context of the Miers' nomination holds some hope of avoiding the usual knee-jerk right/left discussion of being tough or soft on crime.
Perhaps criminal justice issues will become grist for the MSM mill now that there is a new White House strategy to focus on Miers' qualifications. I hope so, though I am not expecting too much.
Mark your Booker calenders
In addition to lots of exciting football, this fall brings a number of exciting Booker events to campuses. In the coming weeks, I have the honor of participating in Booker programs at Arizona State College of Law and the at the University of Houston Law Center. As detailed at this link, the ASU event is entitled "Blakely and Booker: End or New Beginning of Sentencing Guidelines? " and takes place on November 4. The Houston event, which has a brochure available here, is entitled "The Booker Project : The Future of Federal Sentencing" and takes place on November 18.
In addition, I see from this link that the Cornell Journal of Law and Public Policy has a Booker panel as part of its November 5 symposium entitled "The Latest Developments in the War on Drugs." (This document details that panel's top-flight participants.) Anyone who cannot wait until November for Booker gatherings should recall that, as detailed in this post, the Roger Williams University Law School has a great looking event later this month entitled "Symposium on Sentencing Rhetoric: Competing Narratives in the Post-Booker Era."
Virginia governor campaign spotlights death penalty and religion
As discussed in some prior posts linked below, there has long been a fascinating set of connections between the death penalty and religion. As detailed in this article, these connections are becoming headline news in Virginia's race for governor:
When explosive television ads called new attention to Democrat Tim Kaine's position on the death penalty last week, Kaine's response once again brought religion to the doorstep of the heated Virginia governor's race.
Republican nominee Jerry Kilgore sparked a firestorm with television ads that feature relatives of murder victims criticizing Kaine for representing a death row inmate and for once supporting a moratorium on executions in the state. Kaine responded by insisting he would carry out executions as governor, despite his moral objection to the death penalty....
Kaine, a Roman Catholic, said he has a faith-based objection to the death penalty but would carry out executions unless an inmate can demonstrate his innocence. Kaine has sometimes responded to Kilgore's attacks by accusing the Republican of criticizing his religious beliefs.
And, as if the combination of politics, religion, and the death penalty wasn't exciting enough, this article spotlights that one of Kilgore's attacks on Kaine's death penalty record even invoked Adolph Hitler.
Related posts on religion and the death penalty: