November 4, 2005
Should we (and could we) require prosecutors to explain plea deals?
As detailed in this story, in Utah some controversy has emerged as a result of questionable plea deals in a few high-profile cases. In response, the Provo Daily Herald has made an interesting and thoughtful argument here that prosecutors should have to provide a public account of their plea choices:
Prosecutors should go ahead and make their deals as they see fit. But they should be required to explain why -- especially in cases where a plea deal gives the impression that a suspect is getting off too easily. To the public, a deal may seem to give preferential treatment or suggest that prosecutors are not aggressively doing their jobs....
[W]hile prosecutors may have good reasons for offering or accepting a plea deal, it doesn't bolster their credibility if the public is not told why. The courts are already shrouded in too much secrecy, and odd-looking deals don't help. A little public communication would do wonders for public understanding of the justice system and enhance the credibility of prosecutors.
Utah already requires judges to explain when they deviate from state sentencing guidelines in drunken driving cases. The explanations are a good way to ensure that justice is being satisfied.
The same should be true for prosecutors when the make plea deals. Prosecutors are not private attorneys who represent only one party. They represent the people of the community, and they should explain their reasoning to this important client.
Especially after participating in this great conference at Arizona State University, I continue to believe that, even after Booker, the exercise of prosecutorial discretion in the federal system remains the Achilles heel in all reform efforts. Would a requirement of explanation for any and all prosecutorial "sentencing choices" improve the exercise of prosecutorial discretion and improve the federal sentencing world?
Will having a "tough" sentencing judge impact Lewis Libby's plea considerations?
As I have spotlighted in a number of prior posts linked below, the sentencing and plea dynamics surrounding Lewis Libby in the CIA leak case are very intriguing. Adding to the intrigue is news (from TalkLeft noting this NY Times article) that the judge assigned to Libby's case, District Judge Reggie B. Walton, is "known for handing down tough sentences."
Having a tough judge could cut two ways as Libby and his defense team consider the possibility of a plea. Libby might be more inclined to plead guilty because he may now have to fear an especially long sentence if he is convicted after a trial. Or, Libby might be less inclined to plead guilty because he may now have to fear significant prison time even if he takes a plea.
On a related front, Dan Markel over at PrawfBlawg has this interesting post exploring whether Libby's past public service ought to play a role at any eventual sentencing.
- Has Patrick Fitzgerald done guideline calculations?
- Sentencing dynamics in CIA leak investigation
- More on Lewis Libby's possible plea and sentencing dynamics
- Still more on Libby's plea and sentencing dynamics
UPDATE: I have just seen this ABA Journal e-Report article effectively discussing the basic plea and sentencing issues raised in the Libby case.
Potent commentary on Olis case
Today's Houston Chronicle has this potent commentary about the Jamie Olis case in the wake of the Fifith Circuit's reversal earlier this week of his 24-year federal sentence (prior coverage here and here). Here are some snippets:
We can all take comfort in Jamie Olis' reprieve. It doesn't make us soft on white-collar crime. It makes us tough on fairness. The Olis case has been an example of justice gone awry, of collective anger that seemed to well up and envelop one individual who played a small role in the den of deception that was Houston energy trading in the Enron era. It was as if Olis were ordered to pay for many sins that were not his own....
A jury found Olis guilty, and for that he should pay a price. He has. Olis, who was ordered to report to prison in May 2004, has already served 18 months. Lake hasn't scheduled a hearing on a new sentence, and by the time the process is done, Olis will be closing in on two years. Lake should consider time served and set Olis free.
More state disparity on juvenile offenses and prior conviction exception
Divergent recent rulings from Oregon and from Ohio have revealed the considerable state court dickering over whether juvenile adjudications come within the "prior conviction" exception of the Apprendi-Blakely rule. And, thanks to this post at INCourts about an Indiana lower court decision in Pinkston v. State, No. 49A02-0412-CR-1003 (Ind. Ct. App. Oct. 31, 2005) (available here), I see that disparate approaches to this issue can emerge within one state as well as across states.
Notably, the Indiana Supreme Court should soon address the status of juvenile adjudications in Indiana through Ryle (discussed here and here). But the Pinkston court could not await the Indiana Supreme Court's guidance. And, notably, the Pinkston court, in contrast to the work done by the lower court in Ryle, holds that "juvenile adjudications are not prior convictions under Blakely/Apprendi."
Prior coverage of this issue and other issues surrounding the prior conviction exception can be found at this link.
November 4, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
November 3, 2005
Alito around the criminal justice blogosphere
If recent poss here and here did not sate your Alito appetite, still more discussion of Judge Alito work on criminal justice mattes can be found in interesting recent posts at TalkLeft and Crime & Federalism. Relatedly, it appears that the Alito confirmation hearings won't take place until January, and thus we will all have at leas two more months to fine-tooth-comb Judge Alito's background and record.
Interesting HIV sentencing decision from the Fifth Circuit
Having safely arrived in Sun Devil land for this conference at Arizona State University on Friday, a great hotel connection has allowed me to find an interesting sentencing decision from the Fifth Circuit today. Here is the opening paragraph of US v. Castillo, No. 03-20955 (5th Cir. Nov. 3, 2005) (available here):
The United States, Plaintiff-Appellee and Cross-Appellant in this matter, appeals the district court's decision to depart downwardly from the sentencing range established by the UNITED STATES SENTENCING GUIDELINES on the grounds that: (1) the defendant's HIV-positive status constituted an extraordinary medical condition warranting a downward departure under U.S.S.G. § 5H1.4; and (2) comments made by the prosecutor at sentencing about the defendant's HIV-positive status were malicious and endangered the defendant's safety, thereby justifying a departure under § 5K2.0. For the following reasons, we find that the district court abused its discretion when it departed downwardly on these bases, VACATE the district court's sentence, and REMAND this case for resentencing.
Castillo is a very interesting ruling on both the facts and the law. Here are some additional passages from the opinion:
[F]ollowing the logic of [our prior precedents], and our sister circuits, we conclude that a defendant's HIV-positive status alone does not constitute an extraordinary medical condition warranting a downward departure under § 5H1.4, and we find that the district court's departure on this basis, which did not advance the goals of § 3553(a)(2), constituted an abuse of discretion....
[B]ased on our review of the record, the district court's finding that the prosecutor acted deliberately and maliciously [when mentioning the defendant's HIV status] leaves us with a firm conviction that a mistake has been committed and is, therefore, clearly erroneous. Because the factual findings supporting the district court's downward departure under § 5K2.0 are clearly erroneous, the district court abused its discretion by downwardly departing under § 5K2.0.
On the road again...
My traveling ways continue with a trip out west again to participate in this conference at Arizona State University on Friday. Though I hope to get on-line while away, I expect blogging will likely be light through the weekend. Fortunately, with a manic Monday, the great Stanford Law Review issue now on-line, and lots of other action on so many sentencing fronts this week, there is plenty to read without more of my blog blather. (And, for any sentencing gluttons, I have made available for download below my (printer-friendly) Word back-up of SL&P's posts through September and October.)
Still more on Judge Alito's criminal justice record
As I noted here, Judge Alito's work on criminal justice matters is already the subject of considerable scrutiny. In addition to matters discussed in prior posts linked below, consider this article from the Criminal Justice Legal Foundation which defends Judge Alito's work upholding a death sentencing in the Rompilla case and assails the Supreme Court's reversal of Judge Alito's decision.
Relatedly, this New York Times article reviews Judge Alito's dissenting opinions on the Third Circuit and concludes that he "generally deferred to what he called the good faith judgments of other participants in the justice system, including police officers, prosecutors, prison wardens, trial judges and juries. He appeared particularly reluctant to order new trials over what he called harmless errors in the presentation of evidence or in jury instructions."
- Alito and the death penalty
- More on Alito the prosecutor and Alito on the death penalty
- A bit more Alito aliture
- Will Alito continue with the Constitution Project's Sentencing Initiative?
The government's argument against crack cracking the guidelines
As detailed in this recent National Law Journal article, a number of district courts have used their Booker discretion to adjust downward the 100-to-1 sentencing disparity between crack and powder cocaine under the federal guidelines. (Many of these ruling are linked at the end of this post.) As of yet, no circuit has ruled on whether the resulting sentences that deviate from the guidelines are reasonable, but I have heard that this issue is being appealed by the government nationwide.
Filling in the story, I recently receive a copy of a government brief recent filed on this issue in the First Circuit case of US v. Pho, No. 05-2455. The government's opposition to the sentence adjustment based on the crack disparity is quite interesting, and I provide the brief for download below. Here are a key passages from the brief's introduction:
The issue on appeal is not whether it was reasonable for the district court to deviate from the advisory Guidelines range under the particular circumstances of the defendants' cases, but whether, in all crack cocaine cases, it is reasonable for courts to adopt their own across-the-board rules regarding the appropriate crack/powder sentencing ratio.... The identical issue is now pending before the Second, Fourth, Sixth, Eighth, and Eleventh Circuits....
The district court's categorical rule is unreasonable as a matter of law because it: (1) rejects Congress's express judgment concerning the appropriate level and relative severity of penalties for crack offenses; (2) would lead to significant and unwarranted sentencing disparities; and (3) conflicts with (a) the Supreme Court's admonition to take the Guidelines into account in all cases, (b) the case-specific focus of the sentencing statutes, and (c) traditional principles of discretionary decision-making.
For coverage of some of the decisions on this issue from the blog, see:
November 2, 2005
About the size of the population of Virginia
Thanks to TalkLeft's post here, I see that DOJ's Bureau of Justice Statistics has released "Probation and Parole in the United States, 2004," which reports on "the number of persons on probation and parole, by State, at yearend 2004 and compares the totals with yearend 1995 and 2000." The full report, which has lots and lots of interesting numbers, can be accessed here.
This news account of this new BJS report spotlights some interesting racial dynamics:
Whites made up 56 percent of the probation population and only 34 percent of the prison population, according to Wednesday's report and another Justice Department report released last month. "White people for whatever reason — seem to have more access to community supervision than African Americans and Hispanics," said Jason Ziedenberg, executive director of the Justice Policy Institute, which promotes alternatives to incarceration.... Blacks, he noted, comprised 30 percent of probationers and 41 percent of prisoners at the end of 2004. Hispanics made up 12 percent of the probation population and 19 percent of the prison population
As this official press release indicates, the BJS report calculates that the "number of adults in prison, jail, or on probation or parole reached almost 7 million during 2004." To put that number in some perspective, that's more persons on probation and parole than live in 38 of the 50 states, and is about the number of persons that live in Virginia (which is the 12th most populous state).
First Circuit speaks to fact bargaining and a lot more
Gosh, when it rains it pours. After relatively quiet Booker times in the circuits lately (save for the recent Olis decision), today we there have been major sentencing rulings from the Seventh Circuit and the Second Circuit and now the First Circuit in US v. Yeje-Cabrera, No. 03-1329 (1st Cir. Nov. 2, 2005) (available here). Appellate Law & Practice in this post at provides some of the basics of Yeje-Cabrera, and here are parts of the First Circuit's own introduction to the main sentencing issues in the case:
In order to sanction the government for what it considered to be impermissible "fact bargaining," the district court declined to follow the Sentencing Guidelines. This was error. The fact bargaining was the government's willingness during earlier unsuccessful plea negotiations to recommend a lower sentence when the facts known to it at the time, or so the court found, justified a higher sentence. The court declined to give a warranted firearms enhancement and did give an unwarranted minimal-role reduction. The court also concluded, mistakenly, that its role as a fact finder with respect to drug quantity for sentencing purposes had been written out of the Sentencing Guidelines by the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Second Circuit applies all the big Blakely exceptions
Thanks to Howard, I see that the Second Circuit today in US v. Estrada (Herredia), No. 02-1544 (2d Cir. Nov. 2, 2005) (available here), has upheld a mandatory minimum sentence of life imprisonment by relying upon both the mandatory minimum exception (Harris) and the prior conviction exception (Almendarez-Torres) to the Apprendi-Blakely rule about judicial factfinding. Here is the court's own summary of its holding: "We hold that prior felony drug convictions triggering a mandatory minimum sentence of lifetime imprisonment under § 841(b)(1)(A) need not be charged in the indictment or proved to a jury beyond a reasonable doubt." And here is the heart of the court's work:
We recognize that sentencing factors typically "channel judicial discretion" within the range authorized by the jury's verdict, increasing the minimum sentence and therefore narrowing the range within which a judge may exercise sentencing discretion. [Harris, 536 U.S.] at 567. In cases such as this one, where the mandatory minimum is equivalent to the statutory maximum, the trial judge is left with no discretion in determining an appropriate sentence once he or she finds that the mandatory minimum applies. While this circumstance deprives the judge of sentencing discretion, the finding nonetheless restrains the judge's power within the outer limits set by the applicable statutory maximum, and the finding thus does not increase the penalty "beyond the prescribed statutory maximum." Apprendi, 530 U.S. at 490 (emphasis added). We thus conclude that the increasing mandatory minimum sentences for prior felony drug convictions in this case fit within the Harris paradigm.
Moreover, as we held in United States v. Santiago, 268 F.3d 151 (2d Cir. 2001), the Supreme Court's ruling in Almendarez-Torres v. United States, 523 U.S. 224 (1998), that recidivism is a sentencing factor rather than an element of the crime, remains good law, and it is not within the purview of the Courts of Appeals "to anticipate whether the Supreme Court may one day overrule its existing precedent."... While we acknowledge a tension between the spirit of Booker — that all facts that fix mandatorily a defendant's sentence should be found by a jury or admitted by the defendant — and the Supreme Court's decision in Almendarez-Torres, the "prior conviction" exception nonetheless remains the law.
Howard comments, "It will be interesting to see whether the U.S. Supreme Court ever agrees to take up one of these cases." To this astute comment, which I endorse, I would add that it is interesting to speculate what Chief Justice Roberts or a Justice Alito might think of these doctrines.
Thorough discussion of reasonableness in Seventh Circuit
The Seventh Circuit, which had expounded upon the concept of Booker reasonableness more than any other circuit, today continued to unpack this nebulous standard in upholding a 27-year sentencing in a child pornography case. In US v. Newsom, No. 03-3366 (7th Cir. Nov. 2, 2005) (accessible here), the court, after a prior limited remand, thoroughly explores the defendant's arguments that his long sentence was unreasonable. The Newsom court concludes with this explanation:
We note finally that under both the applicable statutes and the advisory Guidelines, Newsom could have received an even longer sentence. As we noted earlier, his Guidelines range was 292 to 365 months; his sentence fell in the middle of that range. Although it might have been useful if the court had said a little more about the apparently exceptional severity of Newsom's sentence, our examination of this question has satisfied us that it was not great enough to require a finding of unreasonableness for a sentence that falls within a properly calculated Guidelines range. See Mykytiuk, 415 F.3d at 608. We therefore find that Newsom's sentence was not the result of plain error. The district court's conclusion that this was a reasonable sentence under all the circumstances is AFFIRMED.
Though aspects of the Seventh Circuit's analysis of reasonableness might be contested, the court merits praise for such a careful and thorough consideration of this question. In sharp contrast, the Eighth Circuit today in US v. Zuleta, No. 05-1348 (8th Cir. Nov. 2, 2005) (available here), a case involving a seemingly small time drug courier, disposed of a Booker reasonableness claim with this one simple phrase: we "further find the 110-month sentence is not unreasonable when considered in light of the 18 U.S.C. § 3553(a) factors."
More on Alito the prosecutor and Alito on the death penalty
As I predicted here last week when the Alito buzz started, Judge Alito's criminal law background ensures that pre-hearing debate and the confirmation hearings will focus on criminal justice issues a lot more than we saw with Harriet Miers and with John Roberts. Consider this proof:
- This NY Times article discusses at length Sam Alito's career as a prosecutor.
- This article from the Philadelphia Inquirer discusses Judge Alito's work in death penalty cases while on the Third Circuit.
Lots more coverage of Olis sentence reversal
The Fifth Circuit's recent reversal of the 24-year federal sentence of former Dynegy executive Jamie Olis continues to capture media attention through new articles in USA Today and the Houston Chronicle and the Wall Street Journal. All three articles spotlight in various ways the potential impact of the Olis ruling on other white-collar prosecutions and sentencing.
Notably, the WSJ article closes with this intriguing quote from the prosecutors in the case: "We will advocate strongly for a sentence that fairly reflects his fraudulent conduct." This quote confirms my instinct, previously discussed here and here, that the Olis resentencing dynamics (especially in light of Booker) should be very interesting to watch.
November 1, 2005
Why some defendants hope Alito is like Scalia
In this piece at Slate, Robert Gordon explains what readers of this blog (and students of Blakely) already know: from the perspective of a criminal defendant, a Supreme Court filled with justices like Antonin Scalia would not always be so bad. As Gordon's piece highlights, Justice Scalia's constitutional vision sometimes leads him to liberal results: consider Justice Scalia's work in Blakely, where he boldly asserts that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," and Justice Scalia's work in Sullivan, where he argues that judges in some cases should not be permitted to affirm convictions by declaring certain constitutional violations harmless.
Of course, as to the application of the Eighth Amendment, defendants almost never get a sympathetic ear from Justice Scalia. But the same was true not only for Chief Justice Rehnquist, but also for Justice O'Connor (except in the occassional death penalty case). Moreover, as detailed in this fascinating paper by Ward Farnsworth, Justice Scalia's principles have led him to apply the rule of lenity more often than any of his current colleagues.
For these reasons, I have previously explained why criminal defendants should hope that Chief Justice Roberts is in the mold of Scalia rather than in the mold of Rehnquist. These same defendants should have the same hopes for a Justice Alito (although I fear that both Alito and Roberts could end up quite Rehnquistian on criminal justice matters). Indeed, given the current SCOTUS sentencing head-count on Apprendi-Blakely-Booker issues, if Justices Alito and Roberts were to embrace Justice Scalia's perspectives on jury trial rights, Blakely's reach and impact might ultimately be even broader than anyone has predicted.
SLR issue on federal sentencing now on-line
In recent posts here and here, I have lavished praise on the October symposium issue of the Stanford Law Review, which brings together leading sentencing scholars in a project entitled "A More Perfect System: Twenty-Five Years of Guidelines Sentencing Reform." (Of course, I'm a bit biased because my offense/offender article appears in the issue.)
During my recent Monterey trip, I had the chance to read the issue's substantive introduction authored by Professors Robert Weisberg and Marc Miller. That introduction is a masterpiece; it effectively sets up the articles that follow and is full of astute insights about modern federal sentencing dynamics. And, joyfully, this page now reveals that the Stanford Law Review has made fully available on-line all 18 article from its sentencing issue.
As I suggested in this post about brewing Booker fixes, I wish every members of Congress could be required to read this entire SLR issue (as well as the Federal Sentencing Reporter's latest issue asking "Is a Booker Fix Needed?") before moving forward with any sentencing legislation. And everyone else, while taking in all this great sentencing scholarship, should take up the opportunity, discussed more fully in this post, to author a short commentary for FSR addressing the question "How should Congress and the U.S. Sentencing Commission respond to Booker?".
A reasonableness-free ruling from the 11th Circuit
In a detailed ruling that covers a number of issues, the Eleventh Circuit today in US v. Moriarity, No. 04-13683 (11th Cir. Nov. 1, 2005) (available here), affirms in substance (but remands for some clarifications) a sentence of 20 years imprisonment and a lifetime of supervised release. The interesting aspects of Moriarity include (a) the court's conclusion that the government met its burden of proving preserved Booker error to be harmless beyond a reasonable doubt, and (b) the court's rejection of the claim that "the district court's imposition of a lifelong term of supervised release constitutes cruel and unusual punishment in violation of the Eighth Amendment."
An interesting dog not barking in Moriarity is reasonableness, which is of course the purposed standard of review for sentences after Booker. Given the limited reach of the Eighth Amendment in non-capital cases under current SCOTUS doctrine, I was not at all surprised with the 11th Circuit's rejection of the claim that the imposition of a lifelong term of supervised release constitutes cruel and unusual punishment. But I was surprised that the opinion in Moriarity does not discuss or even mention whether the appealed sentence was reasonable under Booker.
Media coverage of reversal of Olis sentence
The media has picked up on Fifth Circuit's decision late yesterday to reverse the 24-year federal sentence of former Dynegy executive Jamie Olis (which I discussed here late last night). The Houston Chronicle has this basic account, and this Bloomberg news story provides a lot more background about the case. Also, the blogosphere continues to cover the Fifth Circuit's decision very well: in addition to Tom Kirkendall's comments here (which have engedered interesting reader comments), you can now get thoughtful takes from Larry Ribstein here and from Ellen Podgor here.
In the Bloomberg story, I am reminded that two other "former Dynegy employees, Gene Foster and Helen Sharkey, pleaded guilty to reduced charges in exchange for five-year sentences." I suspect that these sentences will serve as notable benchmarks in what should be a very interesting Booker resentencing. I can imagine the government will argue that Olis should not get a sentence less than these other defendants who pleaded guilty, and it seems likely the district judge will be mindful of such comparative sentencing realities when conducting Booker analysis.
Around the blogosphere
Interesting times bring lots of interesting sentencing items around the blogosphere:
- Jonathan Soglin has a number of interesting new posts at Criminal Appeal, and this post updating the state of state Blakely cases in the Supreme Court is a must-read.
- TalkLeft has a pair of interesting posts here and here exploring what a Justice Alito might mean for SCOTUS criminal cases.
- Tom Kirkendall at Houston's Clear Thinkers has additional comments here on the Fifth Circuit's reversal of Jamie Olis' sentence (which I discussed here late last night).
- The Second Circuit blog here laments the Second Circuit's recent decision to "uphold as 'reasonable' the BOP's odd & stingy interpretation of the good-conduct time statute."
- Votelaw and TalkLeft both note a recent Iowa court decision which upheld Iowa Governor Tom Vilsack's executive order restoring voting rights to all felons who have served their state sentences.