October 29, 2005
Notable fast-track decision in the 1st Circuit
Thanks to Appellate Law & Practice, I see that while I was in transit to Monterey the First Circuit had a big sentencing day on Friday. AL&P has short accounts here and here of two smaller decisions, and this lengthy account of the noteworthy ruling in US v. Martinez-Flores, No. 04-2681 (1st Cir. Oct. 28, 2005) (available here).
Martinez-Flores is an interesting constitutional challenge to the new fast-track sentencing provisions created by one part of the Feeney Amendment (aka the PROTECT Act). The opening paragraph of Martinez-Flores provides the highlights:
This appeal, from a criminal sentence imposed on an alien who illegally reentered the United States, requires that we address a question of first impression: does the congressional endorsement of downward sentencing departures in conjunction with "fast-track" case processing violate the nondelegation doctrine? We answer the question in the negative; separately, we reject the defendant's request for a Booker remand on grounds of disparity in sentencing between defendants in fast-track jurisdictions and others.
The nondelegation discussion in Martinez-Flores will likely be of greatest interest to constitutional law buffs, but the Booker discussion will likely be of greatest interest to sentencing fans. Importantly, the decision in Martinez-Flores ultimately rests its decision to affirm the defendant's sentence on plain error grounds and it does not definitively speak to the issue of a Booker variance on fast-track disparity grounds. But the decision closes with this important (and telling?) footnote:
It is arguable that even post-Booker, it would never be reasonable to depart downward based on disparities between fast-track and non-fast-track jurisdictions given Congress' clear (if implied) statement in the PROTECT Act provision that such disparities are acceptable. See United States v. Perez-Chavez, No. 2:05-CR-00003PGC, 2005 U.S. Dist. LEXIS 9252, at *18-*23 (C.D. Utah May 16, 2005) (holding, in light of the PROTECT Act provision, that "Congress has concluded that the advantages stemming from fast-track programs outweigh their disadvantages, and that any disparity that results from fast-track programs is not 'unwarranted'"). Because we resolve the question in this case on Booker plain-error grounds, we need not reach that or any other issue of reasonableness.
More on Lewis Libby's possible plea and sentencing dynamics
Over at TalkLeft, experienced defense attorney TChris here speculates about whether I. Lewis "Scooter" Libby will exercise his right to trial or instead enter a plea in the CIA leak case. TChris is focused on the political calculations surrounding the plea decision, but I am already thinking about the sentencing calculations surrounding the plea decision.
Helpfully, in these detailed comments to a prior post, experienced former US probation officer Fran Bowman calculates that Libby could face a guidelines range as low as 10-16 months if he pleads guilty and as high as 51-63 months if convicted after a trial. Fran's calculations seem sound, though many developing facts could likely impact any final guideline outcomes. And, of course, because the guidelines are now advisory after Booker, the sentencing judge would be permitted to go higher or lower than any guideline range. (Indeed, the mind reels as I think about Libby and the factors to be considered under 3553(a) as Booker instructs.) Also, the number and counts of conviction from a plea or a trial could place a cap on how high the sentence could go.
In reading some press coverage, I was intrigued by how sentencing dynamics were portrayed after statements of the maximum available sentence: this article says, "federal sentencing guidelines would limit jail time to as little as 10 years if he is convicted. Mr. Libby could agree to a plea deal, which could result in an even lighter sentence."; this article says, "advisory federal sentencing guidelines would call for about two to four years"; this article says, "Attorney Andrew Bowman, a former federal prosecutor ... said the federal sentencing guidelines might call for a 24- to 36-month sentence for a conviction on the perjury charge."
UPDATE: I just saw this CNN article detailing that Libby's lawyer is starting to hint at a defense strategy. And that article reminded me of this great pre-indictment post at Balkinization discussing "Bush's Ace in the Hole -- The Pardon Power."
More proof a SCOTUS justice needs criminal law insights
Regular readers know I have lamented the lack of criminal justice discussion in the scrutiny of SCOTUS nominees Miers and Roberts. And now further proof of the significance of criminal justice issues on the High Court's docket comes from this detailed post by Tom Goldstein at SCOTUSblog discussing possible action on re-listed cases this coming week. Tellingly, all five of the cases discussed by Tom have criminal law dimensions.
And, lest we forget, as I noted in this post, already the first two opinions of the Roberts Court have involved intricate criminal matters. Is all this SCOTUS criminal justice action another argument in favor of a Justice Alito and his extensive criminal justice background?
October 28, 2005
Off to Monterey
As noted here at How Appealing, I have the pleasure of sharing a podium tomorrow with Howard Bashman to discuss law blogs at the annual conference of the US District Court for the Eastern District of California in Monterey. I am about to head for the airport, and thus will be off-line the rest of the day. Here are some links which highlight that we live in interesting times:
RECENT SCOTUS NOMINEE DEVELOPMENTS
CIA LEAK INVESTIGATION DEVELOPMENTS
WEEKEND SENTENCING READING
- Mark your Booker fix calenders
- Two potent new death penalty reports
- A state perspective on harmless error
- More on SLR and "More Perfect" sentencing
- Fascinating new paper for SCOTUS fans
- Seeking retroactive Blakely "Justice for All"
Sentencing dynamics in CIA leak investigation
The five-count, 22-page indictment of I. Lewis "Scooter" Libby in the CIA leak investigation can be accessed here, and a nine-page DOJ press release is available here. That official press release in the penultimate paragraph says this about the possible sentencing of Lewis Libby on these charges:
If convicted, the crimes charged in the indictment carry the following maximum penalties on each count: obstruction of justice – 10 years in prison, and making false statements and perjury – 5 years in prison, and each count carries a maximum fine of $250,000, making the maximum penalty for conviction on all counts 30 years in prison and a $1.25 million fine. Note, however, that the Court would determine the appropriate sentence to be imposed.
In addition to continuing to wonder whether special prosecutor Patrick Fitzgerald has done guideline calculations, I am also now wondering about what might qualify as "relevant conduct" at sentencing if Libby is convicted and, of course, whether and how a plea deal with Libby might emerge.
UPDATE: During his press conference, Fitzgerald responded to a question about the maximum possible sentence that Lewis Libby could receive by stressing that federal judge are to consider at sentencing guidelines that are now "nonbinding" and that take into account "all sort of factors."
Serious Justice Alito buzz
Tom Goldstein, who was the first to shine a spotlight on John Roberts as a possible Chief Justice, now has this post at SCOTUSblog talking up Sam Alito as the new nominee. Likewise, posts here and here at confirmthem are suggesting an Alito nomination is nearly a done deal.
A Justice Alito intrigues me at many levels. Of course, looking at this official bio, the first thing I notice (besides the fact he is a fellow Princetonian) is that Judge Alito's entire pre-judicial career was working in the criminal law arena with six years in the US Attorney's Office in New Jersey and six years in the Justice Department. Notably, this July 2005 US News profile of Judge Alito suggests his background as a prosecutor shapes his jurisprudence:
Alito's conservative stripes are equally evident in criminal law. Lawrence Lustberg, a New Jersey criminal defense lawyer who has known Alito since 1981 and tried cases before him on the Third Circuit, describes him as "an activist conservatist judge" who is tough on crime and narrowly construes prisoners' and criminals' rights. "He's very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait," Lustberg says.
Critically, as I have explained in posts here and here and here, the difference between being in the mold of Chief Justice Rehnquist and Justice Scalia for the Apprendi-Blakely-Booker line of cases is quite pronounced and consequential. The great recent article by Ward Farnsworth about the voting patterns of SCOTUS Justices in criminal cases reinforces this difference.
Because of Alito's criminal law background, the pre-hearing conversation and the hearing themselves would likely focus a lot on criminal justice issues (unlike what we have seen with Miers and with Roberts). Regardless of one's view on criminal justice issues, I think it is important and valuable for these issues to be a larger part of the public conversation about the work of the High Court and potential Justices.
UPDATE: Over at Volokh, Paul Rosenzweig here astutely notes that Judge Alito is part of the Constitution Project's bipartisan group, chaired by Ed Meese and Phil Heyman, looking at the post-Booker world. Interesting...
ANOTHER UPDATE: Amy Howe at SCOTUSblog reports here that we are not getting a nominee today.
Mark your Booker fix calenders
A few weeks ago I noted growing "Booker fix" buzz, and now I have heard from various folks that in January both the House and the Senate may jump into Booker action come the one-year anniversary of the Booker decision. Thus, the numerous academic conferences discussing federal sentencing this Fall will be a fitting prelude to possible legislative Booker action this Winter.
In this recent post, I suggested the US Sentencing Commission ought to get out in front by conducting a major public hearing about the post-Booker sentencing world before Congress gets into the act. However, I surmise that the USSC may just continue its (limited) data releases until it is ready to produce a full Booker report in the Spring. Let's hope the USSC's Booker report will not end up being a day late and a dollar short.
Notably, scholarly publications are getting a head start on serious Booker fix talk. As discussed here and here, the Stanford Law Review is sending to all members of Congress its special symposium issue, which presents "a variety of perspectives on the issues that Congress will likely have to consider in order to reshape the Federal Sentencing Guidelines."
In addition, now available is the Federal Sentencing Reporter's latest issue asking "Is a Booker Fix Needed?". Also, as detailed more fully in this post, FSR is now soliciting commentaries, for publication in its December issue, that address the question "How should Congress and the U.S. Sentencing Commission respond to Booker?".
If only we could somehow make members of Congress read all the Blakely and Booker academic commentary before moving forward with any legislative proposals...
October 27, 2005
Two potent new death penalty reports
Thanks to the website of the Death Penalty Information Center, I see two potent new reports on the administration of the death penalty:
- From the ACLU, at this link you can access a new report entitled "Broken Justice: The Death Penalty in Alabama." The report's overview asserts that Alabama's "criminal justice system and the power given to its trial and appellate judges compromise and limit the ability of capital defendants to get a fair trial and appropriate sentencing."
- From the DPIC, at this link you can read the executive summary of its new report entitled "Blind Justice: Juries Deciding Life and Death With Only Half the Truth." According to this DPIC press release, the report "examines death penalty problems from the perspective of jurors and reveals that they often find themselves at the center of a highly charged courtroom battle where they are treated as pawns, manipulated, and kept in the dark."
The SCOTUS name game
With Miers' withdrawal, it is time again to playing the SCOTUS nominee name game. The AP here has the latest list of the usual suspects, and this Washington Post article suggests the "field is wide open." Because I know readers of this blog have a different perspective and different concerns than the usual pundits, I would be eager to warm up the comment section with some suggested nominees.
I'll start: Given that I am eager for a SCOTUS nominee with a criminal law background and that think SCOTUS needs a trial judge, I suggest the President keep up the Texas theme and name US Sentencing Commission Chair Ricardo Hinojosa. It is hard not to like his resume, and this old confirmthem post from July makes some interesting points and has some interesting comments. And, just this week, his beloved football team took over the top spot in the BCS. Is this a sign of Longhorn karma?
Eleventh Circuit affirms 135 year sentence
At the end of a lengthy per curiam opinion in US v. York, No. 04-12354 (11th Cir. Oct. 27, 2005) (available here), the 11th Circuit today rejected various challenges to the imposition of a sentence that totaled 1,620 months' imprisonment. The "district court sentenced York to the statutory maximum prison term on each count of conviction," and the facts supporting this sentence are more noteworthy than the legal issues in the case. Here are some of the factual highlights:
Dwight D. York is the leader of the United Nation of Nuwaubian Moors, a religious ministry/Native American tribe that has existed in some form since the 1960s. Over the years, the Nuwaubian organization’s official philosophy (as well as its name) has changed several times, alternatively finding its basis in Islamic, Hebrew, ancient Egyptian, Yamasee Indian, and various other cultures and religions....
At trial, there was substantial evidence that under York's leadership, the Nuwaubians' lifestyle was highly restricted. York had many "wives" who served his business and personal needs. York's followers were expected to abide by his rules or risk punishment or expulsion from the Nuwaubian organization.
When Atkins meets Blakely in Apprendi-land
Anyone who understands the title of this post may recall that, as detailed in this post, a New Jersey appellate court in August held in New Jersey v. Jimenez (NJ App. Aug. 17, 2005) (available here), that prosecutors seeking the death penalty must prove a defendant is not mentally retarded beyond a resonable doubt. Earlier this month, as detailed in this news story, the New Jersey Supreme Court decided to take up Jimenez. The case is moving on an expedited schedule, and this week the NJ Attorney General's Office filed an amicus letter brief in Jimenez.
An FOB ("friend of blog") was kind enough to provide me with the NJ AG's letter brief, and it is available for download below. The brief raise a number of interesting and nuanced issues, and concludes with this paragraph:
This Court must reverse the opinion below since there is broad latitude within which to craft a constitutionally sound process for adjudicating mental retardation claims in the wake of Atkins v. Virginia. What shape that framework should take must be left open for the Legislature. As an interim measure, this Court should exercise its supervisory authority and follow the will of the Legislature as expressed to date by placing the burden of proof on the defense to prove mental retardation by a preponderance of the evidence at a pre-trial hearing. Timing requirements should also be put into effect for the filing of notice of an intent to pursue such a claim, as well as for discovery and orders waiving confidentiality provisions concerning relevant records.
Miers is out, who's next?
Howard Bashman has all the headlines here and SCOTUSblog has the President's statement here on Miers' withdrawal of her nomination. So, without further ado, it is time to contemplate who's next. Here are some of my prior posts on SCOTUS prospects and related issues:
- Will the next SCOTUS nominee have any criminal law background?
- Does SCOTUS need a trial judge?
- Brave New Justice and sentencing issues
- How would a Justice Gonzales or a Justice Thompson handle sentencing issues?
- A criminal law perspective on Janice Rogers Brown
- Speculating about Judge Roberts' view on criminal law issues
- Assailing the lack of criminal justice questions at the Roberts hearing
- Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
UPDATE: SCOTUSblog and TalkLeft and the folks at Volokh and Balkinization and confirmthem and many others are buzzing about what might and should happen now. Though looking for particular names to speculate about will like this post at confirmthem which states that "[m]y favorites at this point (based on very limited knowledge) would be Batchelder, Corrigan, Owen, Luttig, Easterbrook, Jones, Williams, Pryor, and Garza, not necessarily in that order."
Grading Miers: late work requires a deduction
I have previously suggested what I thought might be the best argument for Harriet Miers, but this morning now brings news that presents me with a strong and tangible reason to be disappointed in Miers. According to this damning article in the New York Sun, Miers apparently did not submit her revised Senate Questionnaire in a timely fashion. I believe a late submission by Miers, apparently without a request for more time, sets a terrible example for lawyers and law students everywhere.
Though I tend to be a softie professor, I am always very strict when enforcing submission deadlines for written work. To simulate the realities of lawyering, I tell my students that there will be no informal extensions and that they must seek a formal extension by "filing" a written motion, with supporting papers, in my office mailbox. Not surprisingly, I am still waiting to receive my first extension motion, and my students come to understand the importance of timely submissions in the work of lawyers.
Over here at confirmthem, feddie reasonably speculates that the delayed responses may be a sign of an imminent Miers' withdrawal. Or perhaps Miers' excuse will be that she was exhausted from staying up on Tuesday night to watch Game 3 of the World Series, and then she was too depressed to finish her work on Wednesday. Whatever the reason, I find this latest "late" development to be a pretty significant strike against the nominee.
Related recent posts:
- Ugly headlines for Miers' fans
- My, oh my, oh Miers ... Is she done?
- The best(?) argument in support of Harriet Miers
UPDATE: Even though Harriet Miers has withdrawn and her blog has gone black, you can now access from SCOTUSblog here her second questionnaire answers. Extra points to anyone who reads this or who finds anything noteworthy in what now appears to be a lot of wasted effort.
A state perspective on harmless error
As discussed in a series of recent posts (here and here and here), the US Supreme Court has granted cert in Washington v. Recuenco (docket 05-83) in order to explore whether Blakely errors can be subject to harmless-error analysis. In an interesting article in the New Jersey Law Journal, Steven Sanders relies on the New Jersey Supreme Court's handling of Blakely issues to argue that, even if federal constitutional law is interpreted to permit Blakely errors to be subject to harmless-error analysis, state courts can still as a matter of state law hold that such errors require automatic reversals. Here is part of the article's introduction:
Relying on basic federalism principles, this article explains why state courts are not obligated to obey a federal law of remedies in adjudicating federal constitutional violations and why state courts have every right, as a matter of state law, to remedy a federal constitutional violation that a federal court would find harmless.
October 26, 2005
Around the blogosphere
- T Chris at TalkLeft is here discussing an effort by the Justice Department to push through a bill that would "permit repeated death trials in federal cases."
- Michael Ausbrook at INCourts here has an interesting post about a retroactivity ruling from Indiana which Michael reads as perhaps supporting Blakely's retroactivity.
- Folks at PrawsBlawg and Crescat are talking about orders imposed on sex offenders not to participate in Halloween festivities.
Has Patrick Fitzgerald done guideline calculations?
This morning I am off to Cincinnati to deliver a lecture on "Sentencing After Booker" at the Sixth Circuit Practice Institute. I will thus be off-line until late this afternoon. And, if the blogosphere and media buzz is to be believed, the biggest of sentencing questions upon my return may concern the possible guideline ranges that would apply if convictions follow a set of high-profile indictments expected from the special prosecutor in Washington DC as early as today.
Notably, last week, a group called Velvet Revolution (which sounds like the original back-up band for Prince) issued this press release asserting that it "has done an analysis of the Federal Sentencing Guidelines and its probable effect on the sentencing of any senior White House official convicted in the Valerie Plame affair." According to this analysis, which I would not take to the bank, "if convicted, [these officials] could receive a sentence up to life in federal prison under the United States Sentencing Guidelines."
More on SLR and "More Perfect" sentencing
As detailed in this recent post, the October issue of the Stanford Law Review is a symposium bringing together many leading sentencing scholars in a project entitled "A More Perfect System: Twenty-Five Years of Guidelines Sentencing Reform." More details on this amazing issue, which includes my recent offense/offender article, are now available here at the SLR website.
At the SLR website, you can find a press release and an informational letter and the issue's table of contents. In addition, you can also access the issue's substantive introduction authored by Professors Robert Weisberg and Marc Miller. This article is entitled "Sentencing Lessons," and here is a passage from this terrific piece's introduction:
Sentencing has become a complex and varied field, and the world of sentencing law — indeed much of legal world — looks very different in 2005 than it did thirty years ago before the first modern structured-sentencing system was created. The Stanford Law Review editors believed that leading sentencing scholars could articulate the key lessons from all modern sentencing reforms and offer their knowledge in the form of collective and structured scholarly testimony to Congress. While Congress and the federal system are the principal audience for this Issue, we believe the insights in these chapters have much to offer judges, scholars, policymakers, and lawyers at both the state and federal levels.
Produced in conjunction with the new Stanford Criminal Justice Center, this Issue reflects such an effort to restate the major lessons about sentencing reform from the past twenty-five years, and to do so in a manner that will assist further efforts at reform. Authors were invited to address specific topics so that the entire Issue would encompass the core philosophical, structural, policy, and practical lessons and challenges in designing a successful sentencing system. The chapters in this Issue address the various purposes of sentencing, the special role of federal criminal justice in our federal system, the institutions and actors at the rulemaking and adjudicative stages (including Congress, the Commission, trial and appellate judges, and advocates), and the basic substantive and structural elements of sentencing systems. In conceiving this Issue, our goal was to provide an overview of knowledge about all essential aspects of the federal system....
We offer this Issue in the hope that Congress will look seriously at revising the federal system in light of Blakely and Booker and that, in the spirit of the SRA, Congress will want to draw on contemporary expertise and the evolving "intellectual history" of sentencing knowledge in further reforming the federal sentencing system.
Ugly headlines for Miers' fans
Based on the headlines and stories emerging in all the major media outlets, I continue to believe Hariet Miers may not even make it to her confirmation hearings in two weeks. Nothing in the latest articles from the New York Times, USA Today, and Bloomberg will provide any encouragement for Miers' fans, and this story in the Washington Post, which declares "Nominee Defended Social Activism" in speeches from the 1990s, will surely provide additional fodder for Miers' many critics on the right.
I believe Wednesday is the day Miers is supposed to send in her revised Senate questionnaire (which I hope might include some discussion of her work with the prisoner re-entry group Exodus Ministries). Perhaps Miers' new responses will change the dynamics of her nomination. They may have to if she wants to preserve her chance of ultimately serving as a Justice of the Supreme Court.
October 25, 2005
Cert briefing in Recuenco on nature of Blakely error
As first noted in this post, last week the Supreme Court granted cert in Washington v. Recuenco (docket 05-83) in order to explore 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). As spotlighted in subsequent posts and comments here and here, there are many intriguing aspects of the High Court's decision to take up this issue and to use Recuenco as its vehicle.
To help fill out this story and enhance my own understanding of this fascinating little case, I have obtained copies of the cert briefing in Recuenco. Three briefs — the state's petition for cert, the defendant's brief in opposition and the state's reply — are available for download below. I hope to have some more comments about the dynamics and the stakes of Recuenco after I get a chance to review and contemplate these briefs.
A Tennessee view on the state Blakely mess
I recently documented in this post the dramatic divergence of opinions that has developed on the application of Blakely in those states with some form of presumptive sentencing. This divergence first started to emerge when, as detailed here, the Tennessee Supreme Court found Blakely inapplicable to Tennessee's sentencing scheme in State v. Gomez (a ruling which, as detailed here, seemed to rest on a Booker-influenced misunderstanding of Apprendi and Blakely). Now Nashville attorney David Raybin, who has been integrally involved in Tennessee Blakely developments, has authored an article urging the US Supreme Court to take up the Gomez case.
Raybin's article will appear in a forthcoming issue of the Federal Sentencing Reporter and is entitled "The Anticipated Resolution of the Blakley State Court Split of Authority: Will the United States Supreme Court Dance the Tennessee Waltz?". The article is available for downloading below, and here is its introduction:
Does United States v. Booker actually trump Blakely v. Washington? This question has been given a national forum because the practical effect of the Blakley decision was to require each state to assess whether its statutory scheme passed constitutional muster. It is an understatement to say that the results of the inquiry are certainly mixed.
This Article addresses the ensuing, significant national split of authority fostered by the state courts, in part, by fundamentally misunderstanding the subsequent Booker case. The Supreme Court has the opportunity to resolve this split by agreeing to dance with the Tennessee Supreme Court's opinion in State v. Gomez which represents the minority view suggesting that Booker does indeed trump Blakely.