October 25, 2005
Should we blame the media or the politicians?
As detailed in this post, the latest FBI statistics suggest that all major categories of violent crime in the United States continue to decline. Nevertheless, as detailed here by CrimProf Blog, a new Gallup poll shows a sharp increase in the number of persons who believe there is more crime in the U.S. and more crime in their area than there was a year ago.
Given all the chatter from the media and the politicians lately about the meth epidemic and about the threats from sex offenders, I am not surprised to see a poll suggesting that the public has come to believe crime is on the rise. And, because perception is often more important than reality when people vote at the ballot box and "vote" with their remote controls, there is reason to fear that such perceived increases in crime may prompt even more chatter about crime from the media and the politicians. Such is the vicious cycle of the politics of crime where the rhetoric rarely matches the reality.
October 24, 2005
Blakely/Booker cases on-line about to top 10,000!
Today, which happens to be exactly 16 months since the Blakely decision was handed down, a search on Westlaw in the allcases file in the form of "da(aft 6/24/2004) & (blakely booker) & sentenc!" produced 9946 case hits. (Interestingly, 3603 of these hits are in the allstates database, while 6343 come from the allfeds database.) A similar search in Lexis, for either the last year or the last six months, gets interrupted "because it will return more than 3000 results."
Notably, it was just over four months ago, as detailed in this post, that the total number of on-line case hits for this search topped 5000; it appears we are now getting more than 1000 Blakely or Booker decisions coming on-line each month. Especially given that these numbers do not reflect the tens of thousands of sentencings that Blakely or Booker have impacted which do not result in an on-line opinion, I view this data as providing further support for my (hyperbolic?) claim in this Slate piece last year that "Blakely is the biggest criminal justice decision not just of [the 2003 SCOTUS] term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."
Why the blogosphere is addictive
The goings on throughout the blogosphere really seem amazing today. Of course, all the Miers talk has much of my attention: see my prior post here, as well as additional insights from Jack Balkin, TalkLeft and Rick Hasen. But if you suffer from Miers fatigue, consider:
- Both CrimLaw and Crime & Federalism have comments on the interesting article I noted earlier about the voting patterns of SCOTUS Justices in criminal cases.
- How Appealing has the news here of a high profile death warrant being issued in California.
- White Collar Crime Prof blog has the news here of a maximum 5-year sentence in a mail fraud case.
- And, to bring this post full circle, today brings lots of interesting talk over at Concurring Opinions here and here about the influence of bloggers.
My, oh my, oh Miers ... Is she done?
Reacting only to what is going on inside the blogosphere, I now think Harriet Miers won't make it to her confirmation hearings in two weeks. Over at Confirm Them there is this report that "very quietly, certain third parties have begun going back through the list of potential judicial nominees at the behest of the White House." Meanwhile, Ann Althouse in this post astutely reads between the lines of President Bush's comments at this morning's press conference to identify a developing Miers' exit strategy. Also there are now two major anti-Miers website up and running: Americans for Better Justice and WithdrawMiers.org. Throw in this potent piece by John Fund, coming on the heels of George Will's piece yesterday, and you can almost feel an anti-Miers perfect storm brewing.
Of course, my view may be jaundiced by being inside the blogosphere — which I often worry is a bit like being inside the beltway, with lots of thoughtful chatter from many informed sources that may only give the illusion of presenting broad perspectives. Nevertheless, I think the Miers' nomination has now crossed an uncertainty threshold so that my discussions of the SCOTUS future will now speak of "whomever replaces Justice O'Connor" rather than "a potential Justice Miers." And crossing this threshold prompts me to again note some prior posts about Miers and what Justice O'Connor's replacement might mean for sentencing jurisprudence:
- The best(?) argument in support of Harriet Miers
- Will the next SCOTUS nominee have any criminal law background?
- Does SCOTUS need a trial judge?
- Great insights on SCOTUS and criminal justice
- Roberts, the cert pool, and sentencing jurisprudence
- Brave New Justice and sentencing issues
- The impact of SCOTUS's heightened scrutiny in capital cases
Fascinating new paper for SCOTUS fans
Thanks to this post by Orin Kerr over at Volokh, I found this fascinating forthcoming paper by Ward Farnsworth about the voting patterns of Supreme Court Justices entitled "Signatures of Ideology: The Case of the Supreme Court's Criminal Docket." The first two sentences of the paper's conclusion provides a nice summary of the paper's scope:
At one level this article is an inquiry into criminal cases and how the Supreme Court decides them. But it also might be considered an inquiry into how courts decide cases of any kind; the mechanics by which judges' values and preferences get translated into votes and opinions might be similar everywhere.
I have not yet read the full text of this interesting piece, but the paper's charts plotting how often individual Justices have voted for the government in criminal cases makes this piece instantly worth the price of downloading. It also interestingly shows why criminal defendants may hope that Chief Justice Roberts is more in the mold of Justices Scalia and Thomas than in the mold of the late Chief Justice Rehnquist.
More on "Show Me" state sentencing
I noted in ths post interesting sentencing developments in Missouri, where new presentencing reports are designed to encourage more judges to follow voluntary sentencing recommendations. More information and insight on these developments can be found this morning in this Kansas City Star article, which focuses on the problems of geographic disparity and the overuse of scarce prison resources on non-violent offenders.
October 23, 2005
Does Blakely draw a bright line? What is that line?
Back in August 2004, right after Blakely was decided, super-SCOTUS-litigator Jeff Fisher wrote this article highlighting the "virtues of bright-line rules" such as the one articulated in Apprendi and applied in Blakely. However, the recent New Mexico Supreme Court Blakely ruling (basics here) asserts that the Apprendi-Blakely-Booker line of cases "ought not be viewed as drawing a bright line," and the California Supreme Court's summer ruling on Blakely (basics here, commentary here and here) likewise asserts that the "high court's precedents do not draw a bright line."
As the state Blakely mess reveals, Booker has certainly obscured whatever bright line Blakely may have aspired to create. Moreover, as I detail in my recent Reconceptualizing Sentencing article, the Supreme Court's sentencing jurisprudence was conceptually muddled even before Blakely and Booker came along. Writing in a similar vein in his recent Columbia Law Review article, Kevin Reitz describes the Supreme Court's Sixth Amendment jurisprudence as "constitutional Swiss cheese."
Further, depending upon how narrowly or broadly one might want to define jury trial rights, the "bright line" to be found in Blakely et al. could be quite narrow or quite broad. The narrowest reading of Blakely suggests that judges may make all sorts of findings and judgments at sentencing except juries must make findings of historical fact relating to offense conduct when those factual findings formally increase the upper limit of legally available sentences. The broadest reading of Blakely suggests that juries must make any and every finding or judgment that can have a legal impact on the defendant's sentence. (This broadest reading rejects the prior conviction exception of Almendarez-Torres and the mandatory minimum exception of Harris.)
Problematically, in the many decisions in the Blakely line of cases, one can find support for the narrowest reading of Blakely and for the broadest reading of Blakely and for many readings in between. Only time, future cases, and the work of all the Justices of the Roberts' Court will ultimately inform us as to whether Blakely in fact does draw a bright line and ast what the exact parameters of that line might be.
State Blakely mess: the split over Blakely's application to presumptive sentencing
I have now had a chance to read closely the New Mexico Supreme Court's recent ruling in Lopez, which concludes that Blakely does not impact the state's presumptive sentencing system (basics here). As I will discuss in a future post, Lopez is quite interesting and perhaps defensible even though it seems contrary to Blakely. But first I wanted to assemble in one place the dramatic divergence of opinions that has developed on the application of Blakely in those states with a form of presumptive sentencing.
RULINGS FINDING BLAKELY DOESN'T IMPACT PRESUMPTIVE SENTENCING SCHEME:
New Mexico: New Mexico Supreme Court deepens state split over Blakely, reporting on New Mexico v. Lopez (N.M. Oct. 14, 2005).
Tennessee: Tennessee dodges Blakely, so says divided state supreme court, reporting on Tennessee v. Gomez (Tenn. Apr. 15, 2005).
RULINGS FINDING BLAKELY IMPACTS PRESUMPTIVE SENTENCING SCHEME:
This list leaves out state rulings from Minnesota and Oregon which address Blakely's applicability to a full system of sentencing guidelines and also leaves out other state rulings addressing more limited Blakely issues. (A slightly dated, more complete list of state high court Blakely rulings can be found in this post and many other state Blakely rulings can be found at this index.)
Notably, the Ohio Supreme Court should soon hand down decisions in Ohio's big Blakely cases. If the Ohio Supreme Court follows the lead of most Ohio lower courts, we could have an even 5-5 split here.
Missouri's interesting sentencing developments
Thanks to this AP article, I see that Missouri is about to roll out a risk-oriented, information-driven, computer-aided program for providing state judges with sentencing recommendations. Here is a passage from this press release from the Missouri Sentencing Advisory Commission about this notable development:
Missouri will launch a new pre-sentence investigation format November 1 that will provide judges with information for making effective sentencing decisions.... These new reports contain details about offenders and their offenses with various background data including criminal histories, victim impact statements, and offenders' personal characteristics. To assess offenders' likelihood of re-offending, risk factors are identified and scored. About half the scored factors deal with prior criminal history, while the other factors score particular characteristics that statisticians find are related to the chance for success or failure on probation or parole, such as substance abuse, education level, and employment history.
As explained on this page at the Missouri Sentencing Advisory Commission's website, concerns about the over-use of incarceration for non-violent offenders and about sentencing disparity are among the driving forces for Missouri's sentencing reform efforts. These efforts, and the new recommended sentencing system, are discussed more fully in this lengthy report from the Commission. That report includes this telling footnote:
The commission decided to abandon the use of the phrase "sentencing guidelines" because the same phrase is used in the federal courts to describe a system that is entirely different from the sentencing system in Missouri courts. The commission labels its work as Sentencing Recommendations because that is what they are. They are not compulsory. The Missouri Sentencing Advisory Commission does not support a federal style guidelines system. In fact, the federal system has been rendered voluntary by the US Supreme Court decisions in Blakely (6/24/04) and Booker (1/12/05).