November 8, 2005
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.