November 19, 2005
Did Texas execute an innocent man?
The title of this post is the title of this front-page article in Sunday's Houston Chronicle. The article details that a "dozen years after his execution, a Houston Chronicle investigation suggests that [Ruben] Cantu, a former special-ed student who grew up in a tough neighborhood on the south side of San Antonio, was likely telling the truth" when he claimed he was framed in a capital murder case.
More signs of the capital times
In recent posts here and here, I have spotlighted signs that the American culture of the death penalty may be in the midst of a significant transformation. Around the web and blogosphere, there are additional interesting signs of the capital times:
- How Appealing here has links to two newspaper articles discussing the challenges facing Governor Schwarzenegger as he considers whether to grant clemency to California death row inmate Stanley "Tokie" Williams.
- DPIC reports here on a speech in which "U.S. District Judge B. Lynn Winmill recently announced that he is rethinking capital punishment because it is expensive, can be politically motivated, and risks innocent lives."
- CrimProf Blog reports here on a speech by Virginia CrimProf Steven Smith about the state and potential fate of the death penalty.
- Lyle Denniston at SCOTUSBlog here discusses the latest developments in the capital trial of Zacarias Moussaoui.
November 18, 2005
Data, data, data, data, data....
I am back home after having participated Friday in the Houston Law Center's terrific event, "The Booker Project : The Future of Federal Sentencing." The event was as great as I expected, with the presenters and commentators all providing fantastic and thought-provoking insights.
There were too many Houston highlights to summarize (although Nancy King certainly had the best line when, after suggesting Booker reasonableness review might help control disparity, she urged Congress to "give reas. a chance"). One consistent theme throughout was that more data and more detailed data from the US Sentencing Commission is needed to fully assess Booker's impact and the state of the post-Booker world.
USSC Chair Judge Hinojosa and other USSC staff were at the Houston conference, and they clearly got the data message. Indeed, I know the USSC is working hard to disseminate (pre-Booker) sentencing data from FY 2004 before the end of this year. I am hopeful we might also soon thereafter start seeing at least some of the information highlighted on my Booker data wish list.
Since the USSC is listening to requests for data, perhaps readers might use the comments to specify particular data items that seem most important for assessing the post-Booker world.
November 17, 2005
Houston, we have a Booker project
For my fourth Booker trip in as many weeks, I now am off to the airport to fly to Houston. Tomorrow I have the pleasure of participating in the Houston Law Center's terrific event, noted recently at CrimProf Blog and further detailed here, entitled "The Booker Project : The Future of Federal Sentencing."
Blogging will likely be light over the next few days as I take my sentencing and SCOTUS obsessions to the Lone Star State. While I am off line, fellow obsessives should check out the many recent posts of sentencing interest over at Crime & Federalism and CrimProf Blog. And SCOTUS fans should remember not only that the Harvard Law Review's Supreme Court issue is now available, but also that the latest issue of the Ohio State Journal of Criminal Law has a great symposium on "The Warren Court Criminal Justice Revolution: Reflections a Generation Later."
For more on the OSJCL symposium, check out this press release. It notes that "articles in the OSJCL Fall 2005 issue provide important new perspectives on how a Justice Alito and the rest of the Roberts Court might re-examine the Supreme Court's always evolving criminal justice jurisprudence." Also, lots of my Alito posts are assembled in this archive.
Busy and important sentencing day in the Eighth Circuit
The Eighth Circuit today continues its busy post-Booker ways: this official opinion page has nearly a dozen dispositions that include sentencing issues. The two published dispositions that appear to be most noteworthy are US v. Coyle, No. 04-1944 (8th Cir. Nov. 17, 2005) (available here) and US v. Saenz, No. 04-2673 (8th Cir. Nov. 17, 2005) (available here), both of which reverse sentences imposed below the applicable guideline range because the "extent of reduction granted" as a result of the defendant's substantial assistance "was unreasonably large."
The discussion of substantial assistance issues in Saenz is the most thorough, especially because it explores at some length the significance of the government's recommended reduction based on substantial assistance. Here is how Saenz concludes:
Our decision in this case ... turns not on the degree to which the district court's decision varies from the government's recommended reduction, but rather on our independent conclusion that the degree of reduction is not reasonable in light of the evidence concerning the defendant's assistance, the factors set forth in § 5K1.1, and the overall structure and theory of the guidelines, including the statutory command to reduce unwarranted sentence disparities. The appropriate degree of sentencing reduction cannot be calculated with "mathematical precision," Haack, 403 F.3d at 1005, and there is a range of reasonableness available to the district court in any given case. On this record, however, we conclude that the district court's analysis was flawed by its conclusion that timely and truthful cooperation always warrants a reduction of more than 50 percent, and that the degree of reduction was excessive and unreasonable under the circumstances of this case.
New report on incarceration and crime
Via e-mail, I received notice of this interesting new report from The Sentencing Project, entitled Incarceration and Crime: A Complex Relationship. The e-mail states that the report "challenges the widely held misperception that the decline in crime rates since the 1990s resulted from an increasing reliance upon incarceration," and that the report "provides a comprehensive analysis of research conducted on the relationship between incarceration and crime, and concludes that assertions of prison's impact on criminal offending have been overstated."
The e-mail also states that main "findings of the report include":
- Key elements leading to the decline in crime include the economy, changes in drug market patterns, strategic policing initiatives, and community engagement in public safety efforts.
- Incarceration exhibits diminishing returns on crime rates as a larger proportion of prison space is occupied by persons convicted of non-violent and low-level offenses.
- There is no correlation between increasing rates of incarceration and reduced crime rates; during the 1990s Texas increased incarceration levels by 144% while New York's rate only grew by 24%, yet both experienced similar reductions in crime.
- Record incarceration rates have a corrosive impact on families and communities by destabilizing personal and professional bonds and increasing the risk of recidivism.
Judge Gertner applies Sixth Amendment to restitution
Hall of Famer Massachusetts US District Judge Nancy Gertner issued another major ruling on Booker issues earlier this week with another decision in US v. Mueffelman, No. 01-CR-10387-NG (D. Mass. Nov. 14, 2005) (available here). In this iteration of Mueffelman, Judge Gertner breaks new ground with respect to the application of Blakely and Booker to orders of restitution:
[T]his case raised an issue of first impression in this Circuit -- whether victims who were not specifically named in the indictment could receive restitution under the MVRA. That issue requires resolution of at least two others -- whether restitution under the MVRA is compensatory (to the victims) or punitive (to the defendant) or both, and if punitive to any degree, whether the order is subject to the protections of the Sixth Amendment. I have concluded that restitution is punitive, and subject to the Sixth Amendment's protections. Nevertheless, in applying that analysis to the case at bar, I have ordered restitution to victims who, while not named in the indictment, fit within the "scheme" that was alleged and proved.
I believe this Meuffleman ruling is the first to find Blakely and Booker applicable to orders of restitution under the MVRA; a number of circuits have expressly rejected such a claim, though the Third Circuit is considering the issue en banc. Given that Judge Gertner in her first ruling in this case right after Blakely last July essentially predicted the outcome in Booker, I would not quickly presume that her views on these restitution issues won't prevail.
November 16, 2005
More on a new death penalty culture
As detailed in this post last week, there are many signs that the American culture of the death penalty is in the midst of significant transformation. Along with this week's defeat of Massachusetts Governor Romney's "foolproof" death penalty bill adds to this story, consider this additional evidence:
- In this interesting op-ed in The Hill, a political consultant explains how the politics of the death penalty has changed of late. As he explains: "Both newspaper and proprietary public opinion polls in recent years have shown that voters do not consider capital punishment a reason to vote for or against a candidate. If anything, opposing capital punishment helps pick up votes among the most partisan."
- This news release from the U.S. Conference of Catholic Bishops highlights that the organization has reiterated its opposition to the death penalty and its call for all Catholics "to defend all human life and unite together to be 'people of life for life.'" The USCCB has this on-going Catholic Campaign to End the Use of the Death Penalty and has recently released this potent report entitled "A Culture of Life and the Penalty of Death."
A new argument for considering family circumstances at sentencing?
Thanks to this post at How Appealing, I see this news that the House of Representatives found time to pass this resolution expressing disagreement with a recent Ninth Circuit decision about parental rights. Catching my eye in the resolution was the bold statement that "the rights of parents ought to be strengthened whenever possible as they are the cornerstone of American society."
Given the overwhelming approval of this resolution by the House of Representatives, should federal district courts apply their new Booker discretion to give greater weight to defendants' claims for a departure or variance on the basis of parenting responsibilities? As noted in this post, the Eighth Circuit earlier today in Tobacco rejected a parental responsibilities claim. In that case, the defendant stressed that he was raising three children, that he stayed at home with his children, and that one child "has asthma; another has a blood disease requiring yearly hospitalization and making him sick when exposed to the cold."
Arguably, the House's declaration that "the rights of parents ought to be strengthened whenever possible as they are the cornerstone of American society," suggests that claims like the one made in Tobacco merit much greater consideration. At the very least, the resolution suggests that most members of the House should be pleased to hear about departures or variances that district judges grant because of parental concerns.
Another month of Booker stats from the USSC
Continuing what has become a monthly tradition, US Sentencing Commission's Booker webpage now has updated post-Booker sentencing data available at this link. The latest USSC post-Booker sentencing update includes all cases sentenced by close-of-business on November 1, 2005, and the cumulative data now cover almost 46,500 cases. From a quick review, the latest numbers continue the basic stories that emerged from the data released over the summer (details here and here, commentary here).
Though I am always pleased to get data from the USSC, I highlighted in this prior post why I believe the Commission needs ASAP to start adding more flesh to the bare data bones of its periodic reports. As I explained in this post, cumulative and even circuit-by-circuit within-guideline data provide only a superficial view of post-Booker realities. District-by-district data and data on the extent of, and justifications for, departures and variances are essential for a true understanding of federal sentencing after Booker. I am coming to fear that we may have to wait until at least next year to start seeing some of the information highlighted on my Booker data wish list.
Busy Booker day in the First Circuit
Thanks to the always helpful Appellate Law & Procedure, I see that the First Circuit had a busy Booker day. From a quick scan of AL&P's posts on the three Booker rulings, which are here and here and here, it does not appear that the First Circuit broke any significant new ground.
Of the bunch, US v. Morrisette, No. 04-2387 (1st Cir. Nov. 16, 2005) (available here), is perhaps the most notable because of its holding that Blakely and Booker are inapplicable to "safety-valve" eligibility findings because "Blakely, and by extension Booker, expressly relate only to the constitutionality of judicial factfinding which results in sentencing enhancements, not to sentencing reductions" (emphasis in original).
The joys of post-Booker review in the 8th Circuit
Along with the Seventh Circuit, the Eighth Circuit has been among the most active in exploring the dynamics of post-Booker appellate review. And today the Eighth Circuit has a bunch of sentencing rulings on this official opinion page that further fill out the review story. Two published dispositions of note are US v. Sanchez, No. 05-1345 (8th Cir. Nov. 16, 2005) (available here), which gives short shrift to a claim about the unreasonableness of a long (but below guideline) sentence, and US v. Tobacco, No. 05-2524 (8th Cir. Nov. 16, 2005) (available here), which has an interesting discussion of reasonableness and the consideration of family circumstances.
Tobacco has me fired up a bit because, to justify its decision to affirm, the Eighth Circuit highlights that the defendant "cites no case in which we have remanded for failure to adequately consider family responsibilities." But here the Tobocco court is blowing smoke: before Booker, a district court's failure to depart on the basis of family responsibilities was unreviewable and thus it would have been essentially impossible for such a case to exist. And once we weed out this argument, the Tobocco ruling has little else to chew on and really does not seem up to snuff.
In the capital headlines
This morning's papers bring a number of notable articles in the arena of the death penalty:
- Linda Greenhouse has this piece in the New York Times exploring Judge Alito's work in a Third Circuit capital habeas case in which cert is now pending. For more and broader coverage of Alito and the death penalty, check out prior posts here and here and here.
- Henry Weinstein has this piece in the Los Angeles Times exploring the debate over, and potential impact in capital cases of, the proposed habeas reforms in the Streamlined Procedures Act being considered in Congress. For more and broader coverage of the SPA, check out prior posts here and here and here.
- Pieces in the Boston Globe and Boston Herald provide more coverage of the defeat of Massachusetts Governor Romney's "foolproof" death penalty bill. For more and broader coverage of the bill, check out prior posts here and here and here.
November 15, 2005
Lots of sentencing in Harvard Law Review Supreme Court issue
Thanks to Orin Kerr at Volokh, I see that the Harvard Law Review's annual Supreme Court issue is now available here. Seventh Circuit Judge Richard Posner is the author on a intriguing Foreword, entitled A Political Court, which includes extended discussions of Booker and Roper. Also three professors have shorter articles using Roper as a jumping off point for discussing the role of foreign and international law in constitutional decisions.
The student case analysis of leading cases from the 2004 Term does not include much sentencing discussion, but there is this effective Booker piece. Indeed, Judge Posner's discussion of Booker in his Foreword is, by my lights, flawed on many counts. But the student Booker note delivers this astute final analysis:
Whatever the decision's internal inconsistencies, and however uncertain its implications for federal sentencing, Congress should view Booker not as an invitation to immediate legislative response, but as an opportunity to articulate a more principled basis for sentencing decisions and to institute sensible structural reforms.
Massachusetts house rejects "foolproof" death penalty proposal
In this recent post, I suggested the current death penalty culture might be gauged by Massachusetts state legislature's consideration of Governor Mitt Romney's proposal for developing a "foolproof" system of capital punishment (details in this prior post). Today the Massachusetts house debated Romney's bill, and, as detailed in this AP story, the house "defeated the bill on a 99-to-53 vote after more than four hours of impassioned debate." (Interestingly this Reuters account of the vote reports the bill was rejected 100 to 53.)
Report from the Angelos oral argument
As noted here yesterday, the Tenth Circuit this morning heard oral argument in the appeal by Weldon Angelos, the first-time offender sentenced to 55 years' imprisonment for marijuana sales under federal mandatory sentencing statutes. The Rocky Mountain News has this report on the arguments, which includes these highlights:
"It's important that the court system be a final check," said Jerome Mooney of Salt Lake City, one of Angelos' lawyers. "The court has to have the ability to say, 'Okay, this one went too far.'"
Utah federal prosecutor Robert Lund said only Congress has the power to decide whether mandatory minimum sentences and that judges must impose them without taking individual circumstances into account. "You're arguing that we are bound by the law ... without any reference to common sense, fairness or proportionality. We do not have the authority to overturn this sentence?" inquired 10th Circuit Judge Stephen Anderson of Utah. "Yes," replied Lund.
Notable 4th Circuit AEDPA parole ruling
The Fourth Circuit today in In re Cabey, No. 04-274 (4th Cir. Nov. 15, 2005) (available here) gave an interesting spin to AEDPA's restriction on successive habeas corpus application in the context of an effort to challenge North Carolina's application of its parole statutes. Here is the opening paragraph of majority opinion in the 2-1 ruling in Cabey:
Richard Cabey, a North Carolina inmate, moves for authorization, pursuant to 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub. L. No. 104-132, sec. 105, 110 Stat. 1214, 1221, to file a successive habeas corpus application challenging North Carolina’s application of its parole statutes to him. Because Cabey seeks to raise only issues related to his parole that he could not have raised at the time of his prior habeas applications, we hold that he is not required to obtain pre-filing authorization under § 2244(b) before filing the instant petition. Accordingly, we deny authorization to file a successive habeas application as unnecessary and transfer Cabey's application to the district court for further proceedings.
Judge Luttig's dissent in Cabey, which is longer than the majority's opinion, starts with this paragraph:
The majority holds today that a second or successive habeas petition is not a "second or successive" petition within the meaning of 28 U.S.C. § 2244 if it is based on "new issues that did not exist and therefore could not have been raised" in a previous section 2254 petition. Created out of whole cloth as it has been, this exception is irreconcilable with both the plain meaning of the phrase "second or successive" in AEDPA and even with the understanding of that phrase as it was used in habeas corpus jurisprudence prior to AEDPA's enactment. Needless to say, this wholesale exception for any "new issue" of law or fact that did not exist at the time of a previous petition overrides the carefully-crafted and narrow limitations that Congress imposed on the filing of second or successive petitions in section 2244.
Eleventh Circuit addresses Crawford and Shepard issues
The Eleventh Circuit today in US v. Cantellano, No. 05-11143 (11th Cir. Nov. 15, 2005) (available here), covered a lot of notable sentencing ground in a short space. Here is the decision's opening paragraph, which detail the scope of the ruling and its outcome:
This appeal raises four issues, the first three of which are issues of first impression in this Circuit: (1) whether, under Crawford v. Washington, 541 U.S. 36 (2004), a warrant of deportation is testimonial evidence subject to confrontation at trial; (2) whether, under Crawford, a defendant has a right to confrontation at sentencing; (3) whether, under Shepard v. United States, 125 S. Ct. 1254 (2005), a sentencing court may use documents other than court records to identify a defendant with a conviction; and (4) whether a sentencing court may use prior convictions to enhance a sentence, where the prior convictions were neither charged in the indictment nor proved to the jury. Jose Efrain Ibarra Cantellano was convicted of illegal reentry of a deported alien, and based on his prior conviction of an aggravated felony, he was sentenced to 100 months of imprisonment under section 1326(b)(2) of Title 8 of the U.S. Code. Cantellano challenges both his conviction and sentence. We affirm.
UPDATE: Mike at Crime & Federalism explores Cantellano here.
Long sentence for mom who was too "cool"
Since law geeks like me apparently now need to survive without A3G and Underneath Their Robes, perhaps we can turn to the headlines for entertainment. But, this sentencing story from Colorado is really more sad than salacious:
A woman who authorities said had sex with high school boys during alcohol- and drug-fueled parties has been sentenced to 30 years in prison, officials said. Silvia Johnson, 41, described herself to investigators as a "cool mom" who "was never popular with classmates in high school" and who was beginning to feel like one of the group.
Additional interesting details about this remarkable case comes from this extended account of Johnson's sentencing in the Rocky Mountain News.
More on Judge Posner's Booker work in Cunningham
I noted in this post some flaws in Judge Posner's important work for the Seventh Circuit in Cunningham (first discussed here), where a post-Booker guideline sentence was vacated for "inadequate explanation." My FSR colleague Professor Steve Chanenson has spotlighted another concern with the opinion in Cunningham: the mysterious decision not to cite 18 U.S.C. 3553(c).
Section 3553(c) provides, inter alia, that the court, "at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence." Steve in an e-mail made this astute observation about Cunningham: "It seems as though 3553(c) could have done much of the heavy lifting for the Cunningham court while actually grounding the opinion in the SRA and reducing the opaque prose." (Steve's valuable insights flow from his examination of appellate review in his recent Stanford Law Review article, Guidance from Above and Beyond.)