November 1, 2005
Alito and the death penalty
As detailed in this post, Justice O'Connor's "evolving skepticism about capital punishment" during her tenure on the Supreme Court seemed to shift her from a fairly consistent vote to uphold death sentences to an unpredictable vote in capital cases. And, as further discussed in this post, her successor could have a profound impact on the Supreme Court's capital sentencing jurisprudence.
As detailed in this interesting article from Kansas, Kansas Attorney General Phill Kline issued a statement in support of Alito's nomination which suggests he expects Alito to vote to uphold the constitutionality of Kansas' death penalty (which is before SCOTUS in Kansas v. Marsh discussed here and here and here):
"The confusion and uncertainty injected in Kansas criminal law by recent Kansas Supreme Court decisions can be remedied by a United States Supreme Court decision deriving from the December 7th argument in the Marsh case," Kline said. "I urge the Senate to affirm this clearly qualified jurist."
Rebecca Woodman, a Kansas defense attorney who will be arguing against Kline in the death penalty case, said she didn't know what to make of the attorney general's statement. "I guess he means if Alito is confirmed, he'll be on his side," said Woodman, who represents convicted killer Michael L. Marsh II.
As I first noted in this post, there is a basis to predict Alito may shift the Supreme Court's capital sentencing jurisprudence. Alito's most recent major opinion in this area involved the reversal of a grant of habeas due to ineffective assistance in Rompilla v. Horn (available here). That decision was ultimately reversed 5-4 by the Supreme Court in Rompilla v. Beard (available here), with Justice O'Connor serving as the key swing vote. More background on this case and Alito's ruling can be found in this recent newspaper article.
Manic Monday recap
I predicted a manic Monday, and the day did not disappoint. Of course, the nomination of Sam Alito was the biggest news of the day. But, hoping that other notable events won't get completely overshadowed, below I have placed links to other Monday happenings first:
SCOTUS DEVELOPMENTS AND COMMENTARY
BOOKER DEVELOPMENTS AND COMMENTARY
- Jamie Olis sentence overturned by the 5th Circuit!
- Of sentencing note from the Eighth Circuit
- Will Alito continue with the Constitution Project's Sentencing Initiative?
EXPLORING IF ALITO IS NEATO
Jamie Olis sentence overturned by the 5th Circuit!
More than eight months after oral argument, the Fifth Circuit late on Monday finally resolved the appeal of Jamie Olis, who received a severe 24-year sentence for his role in the Dynegy fraud and whose case has been watched closely by me (see here and here) and many others. In an opinion by (SCOTUS bridesmaid?) Judge Edith Jones, the Fifth Circuit in US v. Olis, No. 04-20322 (5th Cir. Oct. 31, 2005) (available here) affirmed Olis' conviction, but reversed his sentence.
The decision in Olis is quite interesting because Judge Jones first declares that Olis had preserved his constitutional claims and that the government could not show that Booker errors were harmless. At this point, the Olis court could have simply remanded for resentencing under Booker. However, the court instead chose to "review the specific sentencing issues that have arisen in this case and provide an analytical framework to aid the district court in resentencing."
The Olis court then engages in a thorough discussion of loss calculations (which dictated Olis' long sentence in the district court) to reach the conclusion that "the district court, faced with a 'cook the books' fraud, overemphasized his discretion as factfinder at the expense of economic analysis." The Fifth Circuit thereafter suggests that "attributing to Olis the entire stock market decline suffered by one large or multiple small shareholders of Dynegy would greatly overstate his personal criminal culpability."
Though overturning the district court's loss calculation, the Olis court affirms other guideline determinations made at the initial (pre-Booker) sentencing, and it does not speak to how this case should now be examined in a post-Booker world. The decision concludes simply by stating Olis "must be resentenced in accordance with Booker's overall standard of reasonableness after the court 'considers' the guidelines including a recalculation of the amount of loss for which Olis should be held responsible."
In light of new Booker realities and the tough sentences we have seen in some white-collar cases, this will be a very interesting case to watch at resentencing. I will be intrigued to see what kind of sentence the government and defense counsel recommend, and what sentence the district judge ultimately imposes.
Of sentencing note from the Eighth Circuit
Contributing to the manic Monday, the ever-active Eighth Circuit, which had been somewhat quite on the Booker front over the last week or so, jumped back into Booker action with a few notable sentencing rulings on Monday.
Two of the opinions — US v. Norman, No. 02-3196 (8th Cir. Oct. 31, 2005) (available here) and US v. Zavala, No. 05-1355 (8th Cir. Oct. 31, 2005) (available here) — do not break any new ground, but they spotlight the critical consequences between review for plain error and review for harmless error. The defendant in Norman arguable has a better case on the equities, but he does not prevail on appeal because of the Eighth Circuit's tough plain error standard; the defendant in Zavala does secure resentencing because the government could not show the Booker error was harmless.
A third opinion, US v. Meyer, No. 04-4166 (8th Cir. Oct. 31, 2005) (available here), seems to break some new ground by holding that "[j]ust as it is error to impose a prison term based on the mistaken view that the guidelines mandate it, it is also a Booker error to impose a fine on the same basis." However, the exact rationale and reach of this holding is debatable. Also debatable in Meyer is the court's decision to order a Booker remand to correct a fine determination while apparently not allowing the district court to revisit its associated Booker-violative imprisonment term.
October 31, 2005
Interesting death penalty flip-flop in Japan
This interesting news item from Japan concerning the administration of the death penalty caught my eye:
New Justice Minister Seiken Sugiura said Monday he would not sign any orders for executions, but later retracted his comments. Sugiura, a licensed lawyer who previously served as vice chairman of the Tokyo Dai-Ichi Bar Association, also said he believes the social trend is for the eventual abolition of capital punishment.
He said he will not sign such orders because of his personal "philosophy." He later issued a statement, however, in which he said his remarks do not refer to implementation of his function as justice minister, effectively withdrawing them.
A bit more Alito aliture
Both the media and the blogosphere are, of course, providing plenty of Alito nourishment. Here are some of the items I think sentencing fans might find most interesting:
- This AP article discusses in depth Alito's work as a prosecutor before becoming a judge.
- At White Collar Crim Prof Blog here, Peter Henning looks at Alito's work in the white-collar arena.
- Mike at Crime & Federalism here asks the interesting question "has there ever been a Supreme Court so filled with intellectual heavyweights?"
For broader background, the ACS blog has this bio with lots of links, and Is That Legal? and PrawfsBlawg have intriguing insights. Also, the NY Times here has lots and lots of blog links (including to this little ole' blog). To have it all in one place, below is my recent Alito commentary:
- Will Alito continue with the Constitution Project's Sentencing Initiative?
- Alito it is ... this should get interesting
- Jumping on the Alito bandwagon
- Serious Justice Alito buzz
Proof that Roberts would support instant replay?
With umpire metaphors all the vogue, I am inclined to read the interesting penultimate paragraph of the Supreme Court's decision today in Eberhart v. US, No. 04-1538 (S. Ct. Oct. 31, 2005) (available here), as an indication that Chief Judge Roberts and the Court he now leads might support the use of instant replay if judging a sporting event. Here's the paragraph in Eberhart that caught my eye:
We finally add a word about the approach taken by the Court of Appeals. Although we find its disposition to have been in error, we fully appreciate that it is an error shared among the circuits, and that it was caused in large part by imprecision in our prior cases. Our repetition of the phrase "mandatory and jurisdictional" has understandably led the lower courts to err on the side of caution by giving the limitations in Rules 33 and 45 the force of subject-matter jurisdiction. Convinced, therefore, that Robinson and Smith governed this case, the Seventh Circuit felt bound to apply them, even though it expressed grave doubts in light of Kontrick. This was a prudent course. It neither forced the issue by upsetting what the Court of Appeals took to be our settled precedents, nor buried the issue by proceeding in a summary fashion. By adhering to its understanding of precedent, yet plainly expressing its doubts, it facilitated our review.
This fascinating compliment for the work of the Seventh Circuit (even as it was reversing) suggests CJ Roberts is a big fan of judicial transparency that facilitates SCOTUS review. It also suggests that the circuit courts should be especially wary about "burying" issues through summary dispositions. Apparently the Roberts Court, as evidenced by all four of its dispositions so far this Term, is going to try to take a close second look at every case that comes its way.
Notable SCOTUS action today
Continuing a manic Monday, the Supreme Court issued a few notable orders and opinion this morning. This post at SCOTUSblog provides the highlights of the action reflected in this order list, and the new opinions already appear here on the Supreme Court's official website.
The big news from the order list in the criminal justice arena is the Court's decision to take up two cases with follow-up Crawford issues. For sentencing fans, the order list includes one Booker GVR, as well as a whole bunch of cert. denieds. Among the cert. denieds, I noticed the Smylie case from Indiana, which raised Blakely's applicability to judicial determinations in support of imposing consecutive sentences. (As detailed in posts here and here, Michael Ausbrook at INCourts has been following the Smylie case closely.)
The two per curiam opinions issued today continue the new Roberts Court's trend of deciding a number of (little?) criminal justice issues through per curiam summary dispositions. In Kane v. Espitia, No. 04-1538 (S. Ct. Oct. 31, 2005) (available here), the Court overtuerned Ninth Circuit's grant of habeas on AEDPA grounds by saying that the Supreme Court's own precedent did not "clearly establish" a prisoner's constitutional right of access to a law library.
In Eberhart v. US, No. 04-1538 (S. Ct. Oct. 31, 2005) (available here), will excite only proceduralist through it ultimately results in a loss for federal prosecutors. The most interesting facet of the case, in my view, are comments in the penultimate paragraph, which I will discuss in a separate post.
Will Alito continue with the Constitution Project's Sentencing Initiative?
As noted in this Friday post, Judge Alito is a member of the Constitution Project's bipartisan Sentencing Initiative group. That group, under the leadership of former Reagan AG Ed Meese and fromer Clinton Deputy AG Phil Heyman, has been looking at the the post-Blakely and post-Booker world for the last 16 months in an effort to develop "specific, consensus recommendations for revising sentencing laws to comport with the new constitutional rules." As this mission statement further explains, "[t]he committee's work is focused on improvements in federal sentencing laws, especially in light of state experiences." A complete list of the group's membership is here, and my prior posts on the work of this group can be found here and here and here.
Though I do not know about the specifics of Judge Alito's efforts with the Constitution Project's Sentencing Initiative, I can confidently state that his involvement in this project means that he has given more thought to Blakely, Booker and broader sentencing reform issues than anyone else on any of President Bush's short lists. It also has me wondering whether Judge Alito will continue his work on this project; I believe the group is about to release a large report as a follow-up to its recent announcement of "Principles for the Design and Reform of Sentencing Systems" this past summer (basics here, commentary here).
I hope Judge Alito continues to serve on the Constitution Project's Sentencing Initiative. His service to date suggests there is no ethical conflict with a sitting judge participating in a policy discussion of sentencing issues even when related legal issues could arise in his court. Consequently, I see no ethical reason why Judge Alito should not continue to play a role in the very important work being done by the Constitution Project's Sentencing Initiative. His involvement in this bipartisan project highlights the importance of putting the concerns of good government above partisan bickering.
UPDATE: Chris at Law Dork is thinking further about these matters, and he suggests (a) that Alito's promotion "could have a quite significant negative effect on the independence of the group or creativity of the project," and (b) that pending and future litigants would be troubled by Alito's work in this arena. Though I am not sure I fully understand Chris' points, I suppose they might also apply to Justice Kennedy's recent involvement in the ABA Commission on sentencing reform that bears his name.
In any event, Chris' comments spotlight that a lot of nuance can be brought to this matter. I fear that Judge Alito might, out of an abundance of caution, end his service with the Sentencing Initiative, but I continue to hope he won't. I also hope his work in this arena, and more generally his views about various aspects of federal sentencing, might be explored during his confirmation hearings.
Alito it is ... this should get interesting
All the news outlets are reporting that President Bush is nominate Sam Alito for the Supreme Court this morning, and battlelines are already being drawn (as Gordon Smith notes and Norm Pattis encourages). As I have predicted (here and here), even the early discussion before the official announcement has touched upon criminal justice issues because of Alito's background as a prosecutor.
One issue in the criminal justice debate that will surely get a lot of attention is the death penalty, especially because Alito's most recent major opinion in this area involved the reversal of a grant of habeas due to ineffective assistance in Rompilla v. Horn (available here). That decision was ultimately reversed 5-4 by the Supreme Court in Rompilla v. Beard (available here), with Justice O'Connor serving as the key swing vote.
Of course, I am likely to be most focused on what a Justice Alito will think about the Apprendi-Blakely-Booker line of cases. In this arena, as I have explained in posts here and here and here, defendants and defense attorneys will be hoping that Alito embraces the nickname "Scalito."
- Jumping on the Alito bandwagon
- Serious Justice Alito buzz
- Will the next SCOTUS nominee have any criminal law background?
- Brave New Justice and sentencing issues
- Assailing the lack of criminal justice questions at the Roberts hearing
- More great sentencing reading, especially for SCOTUS watchers
- Justice O'Connor retiring; what will her replacement think of Harris and Almendarez-Torres?
- Will O'Connor's replacement shift capital jurisprudence?
UPDATE: In an announcement ceremony that already suggests that the White House has a better handle on the latest SCOTUS political realities, President Bush's introduction of Sam Alito emphasized his experience and spotlighted that, as "the top prosecutor in one of the nation's largest federal districts," he "moved aggressively against white-collar and environmental crimes, and drug trafficking, and organized crime, and violation of civil rights." These official talking points also stress experience and credentials (aka he is the anti-Miers). And Judge Alito, in his remarks, followed the "humble script" in accepting the nomination.
My first cut reaction is to echo Orin Kerr's prediction that Alito will be confirmed without a filibuster. For all the headlines, of course, head to How Appealing. And Lyle Denniston has this helpful post over at SCOTUSblog, while Eric Muller are Is That Legal is raising gender concerns.
Gearing up for a manic Monday
I am back in Ohio after a wonderful experience at the terrific conference of the US District Court for the Eastern District of California. The joys of the trip included sharing three meals with uber-blogger Howard Bashman, whose encyclopedic legal knowledge is evident in person as well as on his blog.
Proving there is no rest for the weary, I am already gearing up for a manic Monday. By all reports, we are getting a SCOTUS nominee on Monday. And, based on Tom Goldstein's prognostication in this post, it appears that Monday's order list from SCOTUS could include some serious criminal law action.
Perhaps it is time to crank up the Bangles and page the songwriting geniuses at Begging the Question (especially because it's been far too long since they penned wonderful parodies like 'Twas the Night Before Booker and Desparado and Take a Walk on the Blakely Side). Here's my effort:
Six o'clock already I was just in the middle of a dreamI was nominating Alito by a crystal blue Italian streamBut I can't be late 'cause then I guess pundits won't get paidThese are the days when you wish the pick was already made.It's just another manic Monday (oh-woe)I wish it was Sunday (oh-woe)'Cause that's my Funday (oh-woe)My I don't have to runday (oh)It's just another manic Monday.Should I make another early pick, and have it out again by nine?That seemed so clever before, but it didn't quite work out last time'Cause it takes me so long just to figure out who I'm gonna nameBlame it on the bloggers as I try to beat them at their game.
Jumping on the Alito bandwagon
If you can believe the media and the blogosphere, President Bush on Monday will nominate Sam Alito for the Supreme Court. So suggests this American Spectator post and Erick and others at confirmthem. But because we have had surprises with the last two nominations, who knows what Monday will bring.
Notably, Larry Ribstein at Ideoblog and Dave Hoffman at Concurring Opinions are already giving Alito's business law opinions the once-over. In contrast to the Miers and even the Roberts dynamic, the nomination of Judge Alito (or other long-time judges like Luttig or Brown or Jones) will provide a huge corpus of opinions to examine. (Larry's post indicates his Westlaw search brought up 243 Alito majority opinions, by a Lexis search returned 705 cases when I ran "opinionby (alito)" in the Third Circuit database.)
What particularly excites me about Alito is that, as first discussed here, his nomination should put a spotlight on criminal law issues because his pre-judicial career was as a criminal lawyer — with six years in the US Attorney's Office in New Jersey and six years in the Justice Department. Notably, tonight Mike in this potent post at Crime & Federalism effectively spotlights "Why the Supreme Court Needs a Criminal Lawyer"; I have been harping on this topic (see here and here and here) for quite some time.
Further proof of Alito's criminal justice roots comes from his few academic writings. An on-line search reveals three pieces: Change in Continuity at the Office of Legal Counsel, 15 Cardozo L. Rev. 507 (1993), Reviewing the Sentencing Commission's 1991 Annual Report, 5 Fed. Sent'g Rep. 166 (1992), and Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. 27 (1986). Obviously, two of these pieces are focused directly on criminal law topics and one — be still my heart — is about sentencing and appears in my beloved Federal Sentencing Reporter.
I wonder what Judge Alito thinks about Blakely and Booker (and Harris and Almendarez-Torres and Neder and Sullivan and ...).
Still more on Libby's plea and sentencing dynamics
Assessments of what's next for Lewis Libby in the CIA leak case following his indictment Friday continue to spotlight the interplay of politics and pleas and sentencing. This New York Times story notes that in the White House "there is speculation about whether Mr. Libby, facing the possibility of significant prison time if convicted, may decide that even his loyalty to the Bush-Cheney team has its limits," and explains that the "speculation posits that Mr. Libby may seek a plea bargain that could win him leniency and perhaps limit or sidestep jail time."
Meanwhile, Ellen Podgor here at White Collar Crime Prof Blog astutely notes that "Libby, a lawyer, has more to lose with a plea if the plea implicates his law license." She also wonders, "will Prosecutor Fitzgerald offer a plea, and will it be a reasonable one? If he does offer a plea will it be dependent upon Libby testifying against others?"
Finally, this Newday column sets forth intriguing guideline ranges in the Libby case, stating that, under "the federal sentencing guidelines, ... [if Libby] goes to trial and loses, 97 to 121 months is a realistic figure, 21 to 27 months if he takes a guilty plea before trial in some kind of point-his-fingers-at-others deal." Notably, experienced former US probation officer Fran Bowman in these comments to a prior post, came up with much different numbers in her Libby calculations. So much for the guidelines creating sentencing certainty.
- More on Lewis Libby's possible plea and sentencing dynamics
- Sentencing dynamics in CIA leak investigation
- Has Patrick Fitzgerald done guideline calculations?
October 30, 2005
Is it Alito, Luttig or ... Brown?
Continuing the buzz that emerged on Friday, there is a lot of talk in the newspapers and the blogosphere about Sam Alito and Michael Luttig as the two front-runners for a SCOTUS nomination. The blogosphere buzz around these two folks is especially interesting over at confirmthem and this post at UTR; Lyle Denniston here at SCOTUSblog suggests we might be getting a nominee within the next 24 hours.
Article 3 Groupie speculates that all the Alito buzz may be a head fake on the way to a Luttig nomination. But I have a different theory: Could all the Alito and Luttig buzz be a misdirection on the way to the nomination of Janice Rogers Brown?
This article reports that President Bush "and First Lady Laura Bush were scheduled to participate in a wreath-laying ceremony this evening honoring late civil rights activist Rosa Parks." Wouldn't it be an incredible moment of political theater and strategy to announce the SCOTUS nomination of Brown at this event? The President could describe Brown as the judicial equivalent of Rosa Parks, and framing the nomination in such terms would, I think, greatly impact the political dynamics and debate surrounding this nomination.
A few related posts:
- Serious Justice Alito buzz
- The SCOTUS name game
- Miers is out, who's next?
- A criminal law perspective on Janice Rogers Brown
- Will the next SCOTUS nominee have any criminal law background?
- Does SCOTUS need a trial judge?
UPDATE: Much to the relief of Ann Althouse and A3G, no SCOTUS nominee announcement on Sunday night. And I am pleasantly surprised that Ann and A3G and many commentors view the honoring of the historic Rosa Parks as an event that should be above politics. Now only if we could get everyone to think that way about the naming of a Supreme Court Justice....
Considering juvenile relevant conduct
Steve Minor of SW Virginia law blog fame was kind enough to send me word of US v. Whittington, No. 5:04CR00025 (W.D. Va Oct. 26, 2005) (available here), a very interesting district court ruling by US District Judge Glen E. Conrad. In Whittington, the "defendant contests the inclusion in the presentence investigation report of conduct which predated his eighteenth birthday for consideration as relevant conduct at sentencing." Here are snippets of Judge Conrad's ruling in Whittington:
[A] defendant who may not be properly chargeable with certain conduct because of his youth at the time the conduct occurred, may nonetheless retain sentencing exposure for that conduct.... Although a court has no power to hold a defendant criminally liable for acts committed prior to his attaining majority, it may hold him accountable for those acts during the sentencing process.... In the case of a conspiracy such as the one at issue, the Sentencing Guidelines make it incumbent upon the court to consider all of the reasonably foreseeable conduct of others in furtherance of the conspiracy when sentencing the defendant.
October 30, 2005 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack