November 12, 2005
FSR (re)call for Booker commentary
As detailed more fully in this post from last month, the Federal Sentencing Reporter is soliciting commentaries addressing the question "How should Congress and the U.S. Sentencing Commission respond to Booker?". Here is the essence of the project:
After the Supreme Court's Booker decision in January, many commentators urged Congress to allow the advisory guideline system created by Booker to remain in place for a year "to give it a chance to work" and to allow sufficient time to evaluate its efficacy. This suggested observation period is coming to a close, and the Federal Sentencing Reporter is soliciting short commentaries (under 2000 words) addressing what Congress and the U.S. Sentencing Commission should do now.
FSR is eager to hear from many persons representing a wide variety of perspectives. Thoughtful commentaries received before Thanksgiving can appear in FSR's December 2005 Issue; those received in January will be slated to appear in FSR's February 2006 Issue. For more information, contact me at this link and/or download this document which provides more "Booker fix" food-for-thought.
Booker oldies but goodies
One of many benefits I get from having chances to roam the country talking about Booker is that I often learn about great Booker rulings that I did not see when they were first decided. For example, one of my co-panelists yesterday was ND Illinois Judge Matthew Kennelly, and he mentioned his interesting and thoughtful fast-track decision in US v. Medrano-Duran, 386 F. Supp. 2d 943 (N.D. Ill. Aug 11, 2005). Here are the highlights:
[T]he Court determined that the disparity between Medrano-Duran and illegal re-entry defendants in districts with early disposition programs was an unwarranted disparity among similarly situated defendants within the meaning of § 3553(a)(6). In imposing sentence, the Court reduced Medrano-Duran's advisory Guideline range by three offense levels, which appeared to be the average of the departures given in districts whose early disposition programs are departure-based as provided in the PROTECT Act and § 5K3.1. That reduced Medrano-Duran's range to forty-one to fifty-one months, a range that the Court found to be sufficient, but not greater than necessary, to meet the purposes of § 3553(a)(2). In imposing the particular sentence, the Court considered Medrano-Duran's personal characteristics, including his youth, the fact that he had no prior illegal re-entry offenses, and the fact that he committed no other crimes following his return to this country in 2004.
Similarly, last week when participating in Arizona State's punishment symposium, one speaker spotlighted the interesting and thoughtful decision by Judge Curtis Collier in US v. Phelps, 366 F. Supp. 2d 580 (E.D. Tenn. Apr. 01, 2005), discussing post-Booker sentencing methodolofy the weight that should be given to the guidelines. Here are the highlights:
[T]he Court [believes] the advisory Guidelines should be treated as a major and persuasive factor among the universe of considerations contemplated by § 3553(a). This is not to say the advisory Guidelines range is per se reasonable or that sentences should fall within that range absent some exceptional or extraordinary circumstance. To "consult" the Guidelines in this manner would result in a de facto mandatory Guidelines regime not readily distinguishable from that which the Supreme Court found violative of the Sixth Amendment in Booker. Rather, the Court believes the Guidelines should be understood as the result of a democratic and deliberative process designed to give tangible expression to the nation's collective penal philosophy, taking into account the assorted broad principles and ideals underlying criminal sentencing. It is not for this Court to second-guess those determinations or apply its own ideological gloss thereto; rather, the Court is charged with giving effect to those abstract policy, moral, and philosophical judgments and it best does so by faithfully and completely applying the Guidelines. However, Congress, the Sentencing Commission, and the Guidelines are inherently limited in their ability to account for all of the relevant § 3553(a) factors in all cases. Accordingly, the Court will treat the advisory Guidelines as controlling with respect to that of which they are capable of being and purport to be representative (i.e., society's collective opinion as to the sort of sentence merited by a faceless defendant who has committed a particular offense under certain abstract circumstances), but will endeavor to render its own judgment as to the presence and weight of the various sentencing objectives in a particular case.
November 11, 2005
American cultures of life and cultures of death
I am in Chicago today to talk about Booker at an event co-sponsored by the Illinois Association of Criminal Defense Lawyers. But with a little pre-event down time, I was inspired to get on-line after reading on the plane an amazing article by David Garland, entitled "Capital Punishment and American Culture," that appears in the October 2005 issue of Punishment & Society. Garland's essay is a terrific account of culture, politics and the death penalty which explores and disputes important recent work by Franklin Zimring and James Whitman on this topic. (The Punishment & Society issue in which Garland's essay appears also includes intriguing replies by Zimring and Wilson.)
Garland's read is especially timely at this moment because there is reason to believe, based on amazing developments just this week, that the American culture of the death penalty is in the midst of significant transformation. As I have suggested here, the election of Tim Kaine as Governor of Virginia, despite his open personal opposition to the death penalty, perhaps marks a significant change in death penalty politics. And the stunning editorial series this week from the Birmingham News, entitled "Choosing Life in a Death Penalty State," fittingly closes with this commentary extolling our criminal justice system to embrace a culture of life rather than a culture of death.
Interestingly, as this news article details, one new hot spot for the death penalty debate is Massachusetts: the state legislature there is about to debate Governor Mitt Romney's proposal for developing a "foolproof" system of capital punishment (recent details in this prior post). Throughout American history, of course, events in Massachusetts have had important cultural reverberations. Time will tell if this may prove true in the area of the death penalty.
Fascinating dispatches from Missouri
The newspapers in the Show Me state this morning have a lot to show folks who are interested in sentencing issues:
- This article provides a thoughtful exploration of the new advisory guideline system in operation in Missouri. Prior coverage of Missouri's interesting new guideline system can be found here and here.
- This article has an interesting report on Missouri Professor Frank Bowman's work with Judge Alito on the Constitution Project's Sentencing Initiative. More coverage of this important aspect of Alito's background can be found in this post and this follow-up.
- This article discusses a recent report showing that Missouri's public defender system is "in crisis" as the state "ranks 47th in public defense funding, and caseloads are soaring 80 percent above standard."
More intriguing white-collar anecdotes
In this recent post, I continued my speculation that white-collar offenders may be the biggest beneficiaries of the new sentencing discretion Booker gives to federal judges. In this vein, I noticed a number of interesting news stories this morning:
- This AP story from Indianapolis reports on a former CEO getting 29 months knocked off his sentence during what appears to be a Booker resentencing (although, it should be noted, the new sentence is still more than 12 years for an offender in his 60s).
- This story from San Diego reports on a remarkable decision by a federal district judge to overturn a jury's decision and acquit a former city councilman of seven counts of fraud and extortion Thursday. The story also notes what appear to be below-guideline sentences for the councilman's co-defendants, who had their convictions upheld.
- This story from Boston reports on a below-guideline sentence imposed on an internet swindler.
November 10, 2005
Is SCOTUS soon to take up Booker retroactivity?
Over at SCOTUSblog, Lyle Denniston has this extended post which raises the possibility that the Supreme Court may be seriously contemplating granting cert on a case which raises the issue of Booker's retroactivity. Lyle's post effectively walks through the basic legal issues, and here is his reason for thnking the Justices may be interested in this matter:
A case directly raising the retroactivity issue, Clark v. U.S. (docket 05-5491), is scheduled to be considered by the Court at its Conference on Nov. 23, according to the Court's public docket. The Court has asked for, and received, a response from the Solicitor General. At least ten other pending cases on the issue have been ready for Court action, but have not been acted upon, apparently awaiting the outcome of the Clark case. Those ten, too, are scheduled for the Nov. 23 Conference, according to the docket.... [T]he fact that other pending cases are being treated as if they were dependent on the outcome shows a heightened level of interest in the issue presented.
I will be (quite) pleasantly surprised if the Court decides to take up this issue, even though I am (quite) certain that all the issues relating to Apprendi, Blakely and Booker retroactivity need to be conclusively resolved ASAP.
Notably, as discussed in a series of recent posts (here and here and here), the Court did recently grant cert in Washington v. Recuenco (docket 05-83) in order to explore whether Blakely errors can be subject to harmless-error analysis. Perhaps four Justices have decided that this Term is the time to sort out all the "backward-looking" questions about how to handle cases sentenced before Blakely and Booker in violation of the constitutional rules established in those cases.
For a lot more discussion of these issues, check out this category archive which collects my recent posts on Blakely and Booker retroactivity. In addition, for more thoughtful scholarly coverage of many retroactivity stories and angles, be sure to check out my terrific research assistant's forthcoming Ohio State Law Journal note entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions."
The echoes of alternative sentences
Recently we have seen some interesting circuit rulings on how to deal with alternative sentences announced during the Blakely-Booker interregnum: the DC Circuit's ruling in Ayers (discussed here) and the Fifth Circuit's ruling in Adair (discussed here) both spotlight the interesting legal and practical questions that surround the alternative sentencing approach adopted by some district courts between Blakely and Booker.
Following up my recent discussion of these issues, during which I wondered whether anyone has collected data on the number and nature of alternative sentences announced during the Blakely-Booker interregnum, I received via e-mail a fascinating report about alternative sentences. Here are some highlights of that report:
The Bureau of Prisons did track alternative sentences anecdotally, but not statistically. The Sentencing Commission was doing some statistical tracking, but [apparently] that effort, which started in late 2004, went by the wayside when Booker was decided in mid-January.... And, FYI, the alternative sentences that BOP reviewed during the interregnum were literally all over the board. In some cases, the alternative sentence was much harsher than the Guidelines sentence, in other cases it was much more lenient, and in some cases it was the same.
Hints about how a Justice Alito might view post-Booker players
Because the Third Circuit has decided to send virtually all sentencing appeals back for resentencing after Booker (details here), Judge Alito has not had an opportunity to address post-Booker legal issues in his role as a judge. (But, of course, as discussed in this post and this follow-up, Judge Alito's work with the Constitution Project's Sentencing Initiative entails that he has been considering post-Booker policy issues.)
However, thanks to this terrific University of Michigan Law Library site, which has all of Alito's academic writings here, we can unearth what might be hints as to how a Justice Alito might view key participants in the post-Booker world from two commentaries appearing in the Federal Sentencing Reporter not long after the guidelines were enacted. (I have previously discussed in this post how one of these article provides an intriguing glimpse into Alito's view of sentencing under the federal guidelines.)
Writing in 1989 when still serving as the US Attorney for New Jersey for an FSR Forum asking "What Role Should Individual Sentencing Judges Play in the Guideline Development Process" (available here), Sam Alito made these interesting comments, which are still quite relevant for the post-Booker world:
Probably the most important contribution that can be made by sentencing judges during the first few years of guidelines sentencing is to write sentencing opinions in cases in which application of the guidelines presented significant problems. During most of 1988, few of my office's cases involved guidelines sentencing. As the number of guidelines cases has grown rapidly in recent months, however, it has become increasingly apparent that there are quite a few offenses for which the guidelines do not fit very well. I suspect that the Commission, after a few years of experience, will want and need to make significant revisions to eliminate many of these "bugs," and I think that judicial sentencing opinions may be the best way to memorialize the problems requiring revisions.
And, in 1992, at the end of an FSR article entitled "Reviewing the Sentencing Commission's 1991 Annual Report" (discussed here), Judge Alito made this insightful observation about the role of the USSC:
[T]he Commission, through the amendment process, is now performing with respect to the interpretation of the guidelines essentially the same role that the Supreme Court plays with respect to the interpretation of the guidelines essentially the same role that the Supreme Court plays with respect to the interpretation of other federal laws: resolving circuit conflicts and generally keeping the courts of appeals in line. In Braxton v. United States, 111 S.Ct. 1854 (1991), the Supreme Court stated that Congress contemplated that the Commission would play this role, and the Commission is doing so. As far as I am aware, no other federal agency — in any branch — has ever performed a role anything like it. Anything that the Commission chooses to say in the future about how it exercises this power — in general or in particular cases — would be extremely interesting.
I am inclined to read these passages as suggesting that Alito may well believe that judges and the Sentencing Commission — and not Congress — should have leading roles in defining the contours of the post-Booker universe.
Alito and Feingold discuss the death penalty
According to this news report, Senator Russ Feingold yesterday discussed the death penalty in his meet-and-greet session with Judge Alito. Here are some highlights from the interesting article:
A death penalty opponent, Feingold said: "I found a person who actually thought about it deeply, who was troubled by innocent people being sentenced to death, and who gave particular concern to how those cases were handled as a Court of Appeals judge."...
Feingold said he was pleased with Alito's comments about capital punishment. The senator said Alito expressed more concern and outrage about mistakes made in application of the death penalty than Roberts did in his exchanges with Feingold. Alito described death penalty cases as "the most difficult to handle," said Feingold, and told the senator he treats them differently within his office from other cases, getting numerous clerks involved in the research but delegating less of the analysis.
Some of Alito's former law clerks echoed that Wednesday during a news conference they held in support of the nomination. "He really did seem to think that he shouldn't have his clerks deeply involved in the death penalty cases. . . . He really felt he had to take front-line responsibility for reviewing the briefs," said one former clerk, Rick Beckner. "I don't know what his views are on the death penalty." Other clerks said that few death penalty cases reached the 3rd Circuit Court of Appeals while they were there but that Alito made it clear they didn't have to work on them if they were personally uncomfortable doing so.
Feingold said after his meeting that "I got the feeling he had some anxiety about the death penalty."
Related recent posts:
November 9, 2005
Important and interesting doings in the House
While most legal eagles have been watching the Senate Judiciary Committee with an eagle eye during all the SCOTUS nominee developments, lately there has been a lot of important and interesting sentencing-related developments over in the House. Specifically, as detailed at this official website, the House's Subcommittee on Crime, Terrorism, and Homeland Security has been busy with habeas reform, prisoner re-entry issues, and methamphetamine legislation.
Helpfully, the Sentencing Project has an this informative report on the subcommittee's work on methamphetamine legislation and prisoner re-entry issues. I find quite encouraging the prisoner re-entry news, which centers around consideration of a sensible bill known as The Second Chances Act (details here). Also quite encouraging is the latest news on the meth front from this FAMM report: "By a vote of 31-0, the House Judiciary Committee on November 9, 2005 approved an amended version of H.R. 3889, the Methamphetamine Epidemic Elimination Act, that, among other things, removed the worst mandatory minimum provisions from the bill."
Developments on the habeas front seem to be less encouraging, as the House Thursday will have a another hearing on the Streamlined Procedures Act, which could significantly limit habeas appeals in federal courts. As previously discussed here and here, the Campaign for Criminal Justice Reform has created this detailed webpage about the legislation.
Fictious children in the world of guideline sentencing
The Tenth Circuit in US vs. Sims, No. 03-2151 (10th Cir. Nov. 9, 2005) (available here), explores an interesting world of fictions. Though the legal issues raised in Sims are intricate, the facts are simple:
Sims began a sexually explicit conversation with "sweetthingforyou16" — a screenname Sims believed belonged to a 16-year-old girl named Sue and a 12-year-old named Kate. In fact, "sweetthingforyou16" was a middle-aged man in Springfield, Missouri, who had assumed the Internet profile of a teenage dancer named Sue as a gag and who represented himself as both Sue and Kate to Sims.
The subsequent investigation, conviction and sentencing of Sims on various sex offenses produces a range of interesting legal questions in Sims. A number of sentencing issues are addressed in Sims: there is an extended discussion of departures on the basis of diminished capacity and aberrant behavior, as well as an interesting determination by the court that "fictitious children, used as part of an undercover sting operation, may be treated as separate victims" for guideline sentencing purposes.
A window into charge bargaining dynamics
In this long-ago post, I lamented the disparity that can result from prosecutorial discretion to charge bargain. And the Third Circuit's decision today in US vs. Floyd, No. 05-1641 (3d Cir. Nov. 9, 2005) (available here) provides another window into the impact charge bargaining can have on the operation of the federal sentencing system.
Floyd is an interesting case in which the Third Circuit ultimately finds that prosecutors breached their promise to consider recommending a downward departure based on substantial assistance. The reason given for the government's actions: after allowing the defendant to plead guilty to an offense with a five-year statutory maximum, it realized the defendant's overall offense conduct supported a guideline range of 292 to 365 months. That is, the government's charge bargain reduced the defendant's sentencing exposure from 30+ years to no more than 5, and the government did not want to urge a further reduction for substantial assistance upon realizing the impact of its charge bargain. But this reason was not sufficient under the term of the plea agreement, and so the Floyd court remanded for further consideration of whether te defendant was entitled to a substantial assistance motion.
White-collar Booker breaks
This news report on an insurance analyst receiving a below-guideline sentence for his role in an insider-trading scheme has me again wondering, as I did in this long ago post, whether white-collar offenders may be the biggest beneficiaries of the new sentencing discretion Booker gives to federal judges. Of course, even if this is true, it might suggest, as discussed before, that the guideline ranges in white-collar cases are too harsh, not that federal judges are exercising their new sentencing discretion inappropriately.
Notably, the post-Booker sentencing data from the US Sentencing Commission (available at this link from the USSC's Booker webpage) would seem to support my conjecture. The USSC's data indicate that theft and fraud offenses (along with firearm offenses) have the highest rate of judges imposing sentences "otherwise below" the applicable guideline range. That data point should be examined in context, however, since it appears that theft and fraud offenses have the lowest rate of prosecutor-initiated departures. Judges are perhaps somewhat more lenient in theft and fraud cases perhaps because prosecutors (especially post-Enron) may be particularly harsh in these cases. (Moreover, statistics for theft and fraud offenses, which include bank robberies, serve as an imperfect proxy for true white-collar offenses.)
Some related prior posts:
- A pattern of white-collar leniency?
- Are the federal guidelines too tough on white-collar offenders?
- Tough sentences for white-collar offenders
Another interesting alternative sentence opinion
Tuesday was a big day for interesting circuit rulings on how to deal with alternative sentences announced during the Blakely-Booker interregnum. In addition to the DC Circuit's notable ruling in Ayers (discussed here), yesterday also brought US vs. Adair, No. 04-30859 (5th Cir. Nov. 8, 2005) (available here). In Adair, the district judge imposed a sentence of 240 months under the guidelines, but also announced an alternative sentence of 51 months if Blakely rendered the guidelines unconstitutional. In a thorough and thoughtful opinion, the Fifth Circuit in Adair explains why it should remand for resentencing, rather than just impose the alternative sentence.
All this recent alternative sentencing action has me wondering again whether the US Sentencing Commission or anyone else has comprehensive data on the number and nature of alternative sentences announced during the Blakely-Booker interregnum. Such data ought to be rich with lessons not only about judicial perceptions of the federal sentencing guidelines, but also about how lower court judges respond to and cope with significant legal uncertainty.
Death penalty headlines
In addition to considering the death penalty angle on the Virginia election results, consider these other notable capital punishment news items this morning:
- This article in USA Today reports: "America's Roman Catholic bishops and their flock of 65 million are in new accord on a hot-button social issue: opposition to the death penalty. The U.S Conference of Catholic Bishops will roll out a banner statement for the national "Catholic Campaign to End the Use of the Death Penalty" at the semi-annual gathering of nearly 300 bishops beginning Monday in Washington, D.C."
- This article in the Los Angeles Times reports: "Attorneys for four-time convicted murderer Stanley "Tookie" Williams asked Gov. Arnold Schwarzenegger on Tuesday to grant clemency to the co-founder of the Crips, who became an anti-gang activist years after he went to death row in 1981. Williams, 51, is scheduled to be executed by lethal injection at San Quentin State Prison on Dec. 13, unless Schwarzenegger commutes his death sentence to a term of life in prison without the possibility of parole."
And, not to be overlooked, the Birmingham News is continuing to produce incredible death penalty copy as part of its series of its week-long editorial series entitled "Choosing Life in a Death Penalty State." (The paper's remarkable death penalty conversion was first discussed here.)
November 8, 2005
New insights on Alito and the post-Booker world
In what serves as a terrific companion to Marcia Coyle's great National Law Journal article on Alito and criminal law (basics here, commentary here), Lawrence Hurley in the Los Angeles Daily Journal has a fascinating piece entitled "Court Nominee Is Well-Versed On Guidelines: Alito Could Shape the Way Justices Approach Sentencing Reform." This piece discusses at length Judge Alito's recent involvement in the Constitution Project's bipartisan Sentencing Initiative (discussed previously here); it also astutely highlights that if Alito "is confirmed as the next Supreme Court justice, he could play a major role in shaping the court's approach to federal sentencing reform."
Unfortunately, this Daily Journal does not appear to be available on-line. But I am able to provide below a portion of the article which reports on very interesting comments that Judge Alito made back in March in the course of his work with the Constitution Project:
An insight into Alito's views on the post-Booker world comes from the transcript of a panel discussion he took part in with the Constitution Project on March 9. His comments indicate concern about what could happen if judges depart too far from the guidelines, although he also concedes that the appeals courts could resolve discrepancies to some extent.
Alito began his comments during the discussion by praising the way lower-court judges had approached the issue, saying that the sentencing models that had emerged were "all reasonable," ranging from those judges who stuck closely to the sentencing guidelines to others who merely used them in conjunction with other factors. "I think it's conceivable that ... the whole system could go off in either of those directions," Alito said.
He then added that he doubted there would be any unanimity from the circuit courts, meaning that judges "will have to get guidance from the Supreme Court about exactly what they mean by reasonableness." Alito did not appear at all dismissive of a case-by-case approach to assessing reasonableness, although he indicated that there could be a lack of consistency both between judges and circuits.
One area where Alito suggested there could be a problem is if the Supreme Court were to adopt a standard that merely requires judges to pay lip service to the 1984 Sentencing Reform Act, the precursor to the guidelines. He said most judges would be eminently capable of justifying how they reached their decisions and the end result would be large sentencing disparities. "I am skeptical that enough sentencing disparity can be wrung out of the system simply by requiring judges to justify what they did by reference to the goals of sentencing," he said.
Related prior posts:
- Will Alito continue with the Constitution Project's Sentencing Initiative?
- An intriguing view of Judge Alito's view of guideline sentencing
- Why some defendants hope Alito is like Scalia
- A terrific examination of Alito and criminal law
- Curious SCOTUS vote counting (and remembering that death and habeas are different)
A referendum on current views of the death penalty?
As previously noted in this post, the death penalty played a large role in the closely contested race for Governor in Virginia. Democratic nominee Tim Kaine expressed a moral objection to the death penalty, though he insisted he would still carry out executions as governor. And Republican nominee Jerry Kilgore ran television ads featuring relatives of murder victims criticizing Kaine for representing a death row inmate and for once supporting a moratorium on executions in the state.
Though surely many other issues were on voters' minds as they went to the polls in Virginia today, I do think we might view the Virginia election results as an (imperfect) gauge of the modern political status of the death penalty. Though the race for Governor in Virginia certainly is not, as my post title hints, a referendum on current views of the death penalty, I do suspect that politicians around the nation can and should draw some lessons from the ultimate results. If Kaine prevails, one might reasonably conclude that speaking out against the death penalty (at least at a personal level) does not doom a candidate even in a Red state. But if Kilgore prevails, one might see the results as more evidence of the potential political hazards of saying anything that can be portrayed as soft on crime.
UPDATE: Tim Kaine is being declared the winner in the Virginia race for Governor. Though the media focus will be on what this might mean for President Bush and for the Republican party in future elections, I am intrigued by what this might means for the death penalty in Virginia and for the politics of crime in future elections.
Interesting Colorado opinion applying Blakely
The Colorado Supreme Court — which recently granted cert on six different cases raising various advanced Blakely issues — yesterday issued an interesting opinion in DeHerrera v. People, No. 04SC446 (Colo. Nov. 7, 2005) (available here). Recall that, back in May, the Colorado Supreme Court in Lopez issued long and thoughtful opinion applying Blakely to Colorado's presumptive sentencing scheme (basics here, commentary here). The DeHerrera opinion follows up, and here is the court's official summary of its work:
The Supreme Court holds that sentencing court's reliance on one Blakely-exempt or Blakely-compliant aggravating sentencing factor is sufficient to support an enhanced sentence as stated in Lopez v. People, 113 P.3d 713 (Colo. 2005). Affirming the judgment of the court of appeals, the Supreme Court holds that the sentencing court permissibly aggravated defendant's sentence based on his prior felony convictions, which are Blakely-exempt factors.
Important DC Circuit Booker opinion on alternative sentences
The DC Circuit remains the quietest post-Booker circuit, but today that court issued an interesting and important opinion concerning the review of alternative sentences in US v. Ayers, No. 04-3143 (DC Cir. Nov. 8, 2005) (available here). Here are a few highlights from Ayers:
Although the announcement of an identical alternative sentence might establish harmless error on a different record, in this case we are not certain beyond a reasonable doubt that the district court, when announcing its alternative sentence, understood its obligation to consider the factors in § 3553(a). The district court did not explain why its alternative sentence matched its guidelines sentence; rather, the judge said only "I see no reason to change [from the sentence under the Guidelines]." This by itself might not give rise to a reasonable doubt, but there is more. In his sentencing memorandum, Ayers requested [that the district court] order the probation office to prepare a new presentence report aimed at an indeterminate sentence and continue the scheduled sentencing hearing so that [Ayers would] have a full opportunity to present appropriate mitigating evidence, consistent with the dictates of 18 U.S.C. § 3661....
Mitigating evidence would have been relevant, of course, to the court's analysis under § 3553(a). That the district court denied this request informs our interpretation of the alternative sentence it imposed and leaves us in doubt as to whether the court considered the other sentencing factors in § 3553(a) together with the Guidelines in formulating its non-guidelines sentence.
Curious SCOTUS vote counting (and remembering that death and habeas are different)
Noting Marcia Coyle's great National Law Journal article on Alito (discussed here), Jeralyn over at TalkLeft here spotlights (and concurs with) an unnamed defense attorney's assertion that, if Alito is confirmed, there will be "a very strong voting block of four in criminal cases to be extremely receptive to most arguments made by the government." Even assuming that Alito is to become the cornerstone of such a pro-government block in criminal cases, I find myself struggling to figure out who would be the other three members of this (mythical?) "very strong voting block." Let's consider some of the leading candidates.
I suppose one could assume that CJ Roberts will, in criminal justice cases, end up in the mold of his predecessor and old boss CJ Rehnquist, who was consistently pro-government in criminal cases (as Ward Farnsworth has recently documented). But, the record to date seems far too sketchy to make such assumptions (especially since the very first opinion of the Roberts Court was a win for a criminal defendant in a habeas case).
Perhaps Justice Kennedy is counted in the pro-government voting block. But his recent work in cases like Roper and Seibert (not to mention his vote in a case like Crawford) lead me to hesitate before declaring Justice Kennedy a certain vote in criminal justice cases. (That said, with CJ Rehnquist gone, Justice Kennedy could perhaps emerge as the most solid pro-government vote in many criminal cases.)
So what of Justices Scalia and Thomas? Their pro-government votes in most capital and habeas cases surely account for their anti-defendant reputation. But, in the wake of Justice Scalia's recent work in Crawford and Blakely (not to mention Kyllo), it is ridiculous to view Justice Scalia as a pro-government toady in criminal cases. The same goes for Justice Thomas, especially if we recall that Justice Thomas is now the Court's the leading voice for eliminating both the prior conviction exception and the mandatory minimum exception to the Apprendi-Blakely rule.
As I reflect upon these realities and upon the Supreme Court's decisions last term, I suspect that assessments are often skewed by votes and results in capital cases and habeas cases (which, to my chagrin, occupy so much of the Court's criminal docket). Moreover, it seems reasonable to believe that concerns about federalism and finality, and not an inherent pro-government bias, largely account for consistent pro-government votes from Justice Scalia and Thomas in most capital and habeas cases.
Indeed, in light of a number of recent decisions, I am coming to think we might identify, in the votes of Justices Scalia and Thomas, a distinctive commitment to safeguarding key structural values in the criminal justice system. (And, as Crawford and Blakely highlight, Justices Scalia and Thomas are clearly willing to upset the government's apple cart when a prior precedent or developed practices seem to imperil these structural values.) Consequently, as I have suggested before, at least some criminal defendants should hope that Chief Justice Roberts and a Justice Alito in fact end up in the Scalia and Thomas mold.
Will Libby get a pardon, sooner or later?
Thanks to this post at TalkLeft, I see that Arianna Huffington has some interesting comments here about the possibility of President Bush pardoning Lewis Libby in the CIA leak case. Of course, Jack Balkin flagged this issue weeks ago in this this great pre-indictment post at Balkinization discussing "Bush's Ace in the Hole -- The Pardon Power."
Related prior posts:
- 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
- Has Patrick Fitzgerald done guideline calculations?
November 7, 2005
Michigan Blakely case to be argued on Tuesday
As detailed in this news account, the Michigan Supreme Court on Tuesday will hear arguments in People v Drohan to conclusively decide whether Blakely applies to Michigan's "topless" guideline sentence scheme. As previously explained in this April post when review was granted in Drohan, the Michigan Supreme Court in People v Claypool, 470 Mich. 715 (2004) (discussed here) dropped a footnote asserting that Michigan's guideline scheme operates in a manner that avoids Blakely problems. But, because that assertion came without full briefing, the Michigan Supreme Court ultimately decided to take up this important issue directly with full consideration on the merits.
Wonderfully, this page at the website of the Michigan Supreme Court provides additional background on Drohan, as well as links to all four briefs filed in this case. I will be surprised if the Michigan Supreme Court goes back on its Claypool conclusion, but predictions are always shaky post-Blakely.
Notably, because many have suggested a "topless" guidelines approach for the federal system as a response to Booker, folks interested in federal sentencing ought to keep an eye on this case in the months ahead. In addition, if the Michigan Supreme Court in Drohan does rule, because of the Harris mandatory minimum exception, that Michigan's topless guideline system avoids Blakely issues, the Drohan case could even possibly become an interesting vehicle for the Supreme Court to reconsider Harris.
Fourth Circuit addresses Booker retroactivity
I just got word from a helpful reader that the Fourth Circuit today just released an opinion in US v. Morris, No. 04-7889 (4th Cir. Nov. 7, 2005) (now available here), addressing the retroactivity of Booker. As I dash off to class, I barely have time to reproduce the opinion's first paragraph and promise commentary later:
Debra Lynn Morris appeals the district court's order denying her 28 U.S.C. § 2255 motion for relief from her conviction and sentence. Morris argues that her sentence is unconstitutional under United States v. Booker, 125 S. Ct. 738 (2005), because the district court increased her base offense level using facts that she did not admit and that were not found beyond a reasonable doubt by a jury. We granted a certificate of appealability to consider whether Morris may raise a Booker claim for the first time in her § 2255 motion when her judgment of conviction became final before the Supreme Court decided Booker. Nine circuit courts of appeals have considered this issue and have held that Booker does not apply retroactively to cases on collateral review. We agree with these courts, and we therefore affirm the district court's order.
UPDATE: Having now read Morris, I can comment that the decision presents a thorough review of all the standard steps for declaring that Booker is not to apply retroactively. And, in so doing, the Fourth Circuit makes this statement about Booker that many federal defendants likely find (too) accurate: "the practical net result of Booker is minimal."
A bit of death in the afternoon
Two interesting items relating to capital punishment have me in Hemmingway mood as I consider the "art" of our modern death penalty. (As an aside, I find reading the first chapter of "Death in the Afternoon" while thinking about the death penalty, rather than bullfighting, to be an interesting and enlightening experience.) Consider these competing developments on two noteworthy capital canvases:
- The Eighth Circuit today, in US v. Purkey, No. 04-1337 (8th Cir. Nov. 7, 2005) (available here), upheld a death sentence imposed under the Federal Death Penalty Act against an array of broad and narrow constitutional and statutory challenges.
- The Birmingham News, as explained here, has had a "death penalty conversion" (hat tip: TalkLeft). Here are the essential details of the conversion:
After decades of supporting the death penalty, the editorial board no longer can do so. Today and over the next five days, we will explain our change of mind and heart.... Why? Because we have come to believe Alabama's capital punishment system is broken. And because, first and foremost, this newspaper's editorial board is committed to a culture of life.
Put simply, supporting the death penalty is inconsistent with our convictions about the value of life, convictions that are evident in our editorial positions opposing abortion, embryonic stem-cell research and euthanasia. We believe all life is sacred. And in embracing a culture of life, we cannot make distinctions between those we deem "innocents" and those flawed humans who populate Death Row.
A terrific examination of Alito and criminal law
In The National Law Journal, Marcia Coyle has this terrific and thorough article, entitled "Cutting his own path: 'Justice' Alito could alter criminal law," which explores the possible impact of Justice O'Connor's likely replacement on various criminal justice issues. (Disclaimer: My view of this article is heavily biased because I am quoted at length in the article and because the article begins with a reference to the latest issue of the Ohio State Journal of Criminal Law.)
The lengthy Coyne article is today's must-read for folks interested in Alito and criminal justice issues. Here is the enticing lead to whet your appetite:
The last person with substantial hands-on prosecutorial experience to ascend to the Supreme Court was Earl Warren, whose 18 years in those trenches influenced the Warren Court's revolution in criminal procedure. But don't expect former federal prosecutor and now Judge Samuel A. Alito, if confirmed, to steer a similar course.
The article notes that Professor Yale Kamisar has an article in the latest issue of the Ohio State Journal of Criminal Law exploring the impact of Warren's criminal justice background. That article, "How Earl Warren's Twenty-Two Years in Law Enforcement Affected His Work as Chief Justice," is a fascinating read and can be accessed here.
For anyone interested in thinking dynamically about how the new Roberts Court might approach criminal justice issues, I encourage checking out all the articles appearing in the OSJCL's symposium entitled "The Warren Court Criminal Justice Revolution: Reflections a Generation Later." In addition to the Kamisar article, there are terrific articles from Professors Morgan Cloud, Richard Frase, Tracey Meares, Donald Dripps and George Thomas III. Professor George Thomas merits considerable credit for organizing this symposium as a Guest Editor for the OSJCL, and his informative introductory article, "Through a Glass Darkly: Seeing the Real Warren Court Criminal Justice Legacy," can be accessed here.
Another major SCOTUS morning
Though not quite yet another manic Monday, the Supreme Court has gotten the week off to an interesting start with some notable cert grants this morning. This post at SCOTUSblog provides the highlights. The biggest news is a cert grant in Hamden to consider the constitutionality of the special military tribunals to try war crimes charges against terrorist suspects, but also quite noteworthy is a pair of grants to explore whether state courts may refuse to hear claims by foreign nationals of violations of the Vienna Convention on consular rights. How Appealing already has some of the early news coverage here.
For sentencing fans, the order list includes one Booker GVR, as well as a whole bunch of cert. denieds. Interestingly, among the cert. denieds, I do not see the Gomez case from Tennessee, which I believe was discussed at the Justices' private conference last Friday. Lots of background on Gomez can be found in this post, and the lack of any action on the case today adds to the intrigue surrounding whether, when and how the Supreme Court may take up one of the state supreme court rulings that have avoided the application of Blakely.
November 6, 2005
Fantastic review of '04 SCOTUS term from criminal defense perspective
From the great Ninth Circuit Blog, I just saw a terrific resource examining the October 2004 Supreme Court term from a criminal defense perspective. This resource, which is available here, is titled "Reviewing The Supreme Court 2004-05 Term From A Defense Perspective" and is summarized in this post over at the Ninth Circuit Blog. Here is the insightful introduction to the document's review of the SCOTUS term just completed:
This Term has had an unusual array of cases that will affect the practice of federal criminal defense. In going through the opinions to look for hidden gems, three major themes emerge. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions.
What a sentencing week!
The past week started with an amazing manic Monday, and the sentencing action did not slow down very much the rest of the week. Here are some of the highlights from the week that was:
EXPLORING IF ALITO IS NEATO
- Alito it is ... this should get interesting
- Will Alito continue with the Constitution Project's Sentencing Initiative?
- A bit more Alito aliture
- Alito and the death penalty
- An intriguing view of Judge Alito's view of guideline sentencing
- Why some defendants hope Alito is like Scalia
BOOKER DEVELOPMENTS AND COMMENTARY
- Jamie Olis sentence overturned by the 5th Circuit!
- A reasonableness-free ruling from the 11th Circuit
- Thorough discussion of reasonableness in Seventh Circuit
- Second Circuit applies all the big Blakely exceptions
- First Circuit speaks to fact bargaining and a lot more
- Interesting HIV sentencing decision from the Fifth Circuit
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- SLR issue on federal sentencing now on-line
- About the size of the population of Virginia
- More state disparity on juvenile offenses and prior conviction exception
- Will having a "tough" sentencing judge impact Lewis Libby's plea considerations?
An intriguing view of Judge Alito's view of guideline sentencing
The blogosphere (here and here) is hard at work deconstructing student Sam Alito's 1974 Yale Law Journal note, which was authored more than three decades ago and deals with cases that are more than a half-century old. Unsurprisingly, I think blog time would be better spent deconstructing Judge Sam Alito 1992 Federal Sentencing Reporter article, which provides an intriguing glimpse of Alito's view of sentencing under the federal guidelines.
Judge Alito's FSR article, entitled "Reviewing the Sentencing Commission's 1991 Annual Report," can be accessed here. The article lives up to its title by providing a thoughtful exploration and analysis of the USSC's work during the early days of the federal guidelines. Though there are few "a-ha" moments in the article, Judge Alito's commentary consistently reveals that he has a refined understanding of the ins and outs of guideline sentencing. In addition, many passages in this article show that Judge Alito has a particularly acute appreciation for how prosecutorial choices and restraints may impact guideline sentencing outcomes.