November 15, 2005
Full Daily Journal article on Alito and the Constitution Project
Thanks to Howard Bashman, everyone can now access at this link the full article from the Daily Journal about Judge Alito's involvement in the in the Constitution Project's bipartisan Sentencing Initiative. Entitled "Court Nominee Is Well-Versed On Guidelines: Alito Could Shape the Way Justices Approach Sentencing Reform," the article is a great read (which was first discussed in this post last week).
November 14, 2005
Judge Posner's important and flawed work in Cunningham
The Seventh Circuit's ruling in US v. Cunningham, No. 05-1774 (7th Cir. Nov. 14, 2005) (accessible here), to vacate a post-Booker guideline sentence for "inadequate explanation" is perhaps the most consequential circuit Booker ruling in some time. This is because Cunningham could (and should?) be read to mean that district judges commit reversible error if (and whenever?) they give in to "the temptation ... to impose the guidelines sentence and be done with it, without wading into the vague and prolix statutory factors" of 3553(a).
But, in addition to being important, Judge Posner's work in Cunningham is, by my lights, flawed for a few reasons. Much of the prose is nuanced to the point of being incomprehensible. For example, I am still trying to figure out the meaning of this seemingly important sentence from the Cunningham opinion:
We cannot have much confidence in the judge's considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion, as it would have been if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument.
Complaints about the prose aside, there is a substantive flaw in the opinion: the opening paragraph suggests that the post-Booker standard for a district court at sentencing is reasonableness. See slip op. at 2 (explaining that a "defendant can try at the sentencing hearing" to show "that a guidelines sentence is unreasonable in the particular circumstances of the case"). But, critically, reasonableness is only an appellate review standard: it is the standard created by Booker that a circuit court is to use when reviewing a sentence that as been appealed.
At a defendant's initial sentencing, there is a higher authority that provides the controlling legal standard: in section 3553(a) of the Sentencing Reform Act, Congress has plainly instructed district judges to impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" set forth in 3553(a)(2). Thus, the task Congress has given expressly to district judges is to figure out, "in the particular circumstances of the case," what sentence is "sufficient, but not greater than necessary" to comply with the SRA's statement of sentencing purposes. Booker simply provided that circuit judges are to assess how district judges do their job by the standard of reasonableness.
Of course, as I explained in this post the night Booker was handed down, Justice Breyer's remedial opinion in Booker conspicuously fails to mention the "parsimony" mandate of 3553(a). Nevertheless, it appears that most sentencing judges understand that they must follow Congress's commands in 3553(a). Perhaps eventually appellate judges will fully get with the program.
Fifth Circuit on the calculation of good-time credit
The Fifth Circuit released today Moreland vs. Federal Bureau Prisons, 05-20347 (5th Cir. Nov. 10, 2005) (available here), an important decision about the calculation of good-time credits. Per Judge Owen, here is the opening paragraph:
In this habeas corpus proceeding, we must determine whether a federal statute governing credit for good conduct unambiguously directs how that credit is to be calculated and applied. Because we conclude the statute is unambiguous, we do not address whether the rule of lenity applies or whether the Federal Bureau of Prisons' interpretation of the statute must be accorded deference under Chevron, U.S.A. v. Natural Resources DefenseCouncil, Inc. and its progeny. The Bureau of Prisons correctly determined the good-conduct credits in this case. Therefore, we reverse the district court's grant of habeas relief and deny the petition for writ of habeas corpus.
Though federal inmates will surely care most about the outcome in Moreland, statutory construction and administrative law fans will likely be intrigued by the Fifth Circuit's chosen means. Highlighting this reality, consider these part of Judge Stewart's special concurrence:
Rather than hinge reversal of the district court's judgment upon whether this ambiguity is dissolved by the context of the words, I would uphold the BOP interpretation of the statute because it is one of at least two reasonable interpretations of § 3624(b).... I agree with our sister circuits that found ambiguous the § 3624(b) language and that found applicable Chevron's deference.
Seventh Circuit vacates guideline sentence for inadequate explanation
In an important ruling that could significantly impact a lot of post-Booker sentencings, the Seventh Circuit today, per Judge Posner (with Judge Easterbrook signed on), reversed a within-guideline sentence for "inadequate explanation." In US v. Cunningham, No. 05-1774 (7th Cir. Nov. 14, 2005) (accessible here), the Court reversed a 57-month sentence that was at the bottom of the applicable guideline range because the record below "left in serious doubt whether the [sentencing] judge connected the facts relating to the statutory factors to the sentence he imposed." Here is the concluding paragraph of a must-read opinion:
The judgment must be vacated and the case remanded for resentencing. We express no view on the proper sentence. Given the gravity with which Congress regards the sale of crack, and (depending on the reason) Cunningham's failure to cooperate in the prosecution of Means, the judge's "bottom line" — a guidelines sentence far less severe than that of the leading conspirator — may be reasonable. And he may decide to reimpose it after considering the factors urged by Cunningham's lawyer. All that remains for the future. The inadequate explanation for the sentence precludes our affirmance.
Criminal justice work in today's SCOTUS action
Prisoners are receiving significant cert attention from the Supreme Court this morning. Details come from Lyle Denniston in this post at SCOTUSblog:
The Court agreed to hear two cases on issues involving prison life. It agreed to clarify what steps prison inmates must take before they may file a federal court lawsuit challenging prison conditions. The issue involves the scope of the duty under the Prison Litigation Reform Act to use administrative remedies before suing (Woodford v. Ngo, 05-416). The Circuit Courts are in disagreement about the issue. And the Court granted review of whether prison officials have a duty to allow dangerous inmates access to newspapers, magazines and photos (Beard v. Banks, 04-1739).
Also of note, as Lyle further details, "the Court declined to rule on the validity of state laws that ban all convicted felons from voting, even after they have served their sentences. This marked the third time in the past year that the Court has passed up the issue of felons' voting rights, under the Voting Rights Act or the Fourteenth Amendment. The denied case was Johnson v. Bush (05-212)."
For hard-core sentencing fans, today's order list includes two Booker GVRs (will they ever end?!?), as well as a whole bunch of cert denieds. Interestingly, missing again from cert denieds is the Gomez case from Tennessee (background in this post), which adds further intrigue to the question of whether, when and how the Supreme Court may take up one of the state supreme court rulings that have avoided the application of Blakely.
UPDATE: Howard Bashman at How Appealing does his usual terrific job of collecting the early press coverage on these developments here.
Alito motivated by anti-Warren Court feelings
The Washington Times has this notable article discussing a 1985 document from the pen of Sam Alito when applying for a deputy assistant job under Attorney General Ed Meese. Ann Althouse has this great post quoting the highlights and noting the potential impact of Alito's many strong conservative sentiments in the document. Though Alito's 1985 comments about social issues like abortion and affirmative action will surely garner the most attention, his criminal justice statements draw are also notable.
In the document, Alito states that he believes "very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement." He also explains that "[i]n college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment."
Though many will likely debate whether and how Alito's views may have evolved since he wrote these words 20 years ago, it is also critical to keep in mind that the criminal justice system and the impact of the Warren Court's criminal procedure decisions have evolved over the past two decades. For more insight on these matters, be sure to check out the latest issue of the Ohio State Journal of Criminal Law and its symposium entitled "The Warren Court Criminal Justice Revolution: Reflections a Generation Later." In that symposium, there are terrific articles from Professors Yale Kamisar, Morgan Cloud, Richard Frase, Tracey Meares, Donald Dripps and George Thomas III.
Tenth Circuit argument in Angelos mandatory minimum case
As detailed in newspaper articles this morning from the Denver Post and Salt Lake Tribune, on Tuesday morning a Tenth Circuit panel (comprised of Judges Briscoe, Anderson and O'Brien) is scheduled to hear arguments in the appeal by Weldon Angelos, the first-time offender sentenced to 55 years' imprisonment for marijuana sales under federal mandatory sentencing statutes. The Angelos case has generated significantly attention, in part because District Judge Paul Cassell wrote an amazing opinion last year expressing his concerns about the sentence he felt forced to impose.
Angelos serves as a fascinating test case for whether the Eighth Amendment is to have any real bite in non-capital cases. I suspect we will ultimately get an interesting opinion from the Tenth Circuit panel; I also suspect that that, no matter what the panel rules, it will not be the last word in this high-profile case.
Some prior Angelos coverage:
- Angelos challenging severe mandatory sentence in the 10th Circuit
- Angelos amicus brief
- Judge Cassell laments, but imposes, harsh mandatory sentence
- Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos
- The future of mandatory minimums?
November 13, 2005
Latest BJS death penalty stats as we approach 1000th execution
Thanks to this post at TalkLeft, I see the Bureau of Justice Statistics has released "Capital Punishment, 2004," which details the state of capital punishment in the United States. The full report can be accessed at this link; a summary of highlights from the report can be found in this official press release or in this AP story. The full BJS report includes a lot of intriguing data, and it spotlights that capital punishment remains a regional story with the great majority of death sentences and executions taking place in the south.
Of course, the most up-to-date capital numbers are always available from the Death Penalty Information Center, where you can see from this page that we are quickly approaching the 1000th execution in the modern death penalty era. Notably, there are websites and blogs tracking the march to this noteworthy milestone in the modern administration of capital punishment.
Another interesting week in the sentencing world
BOOKER DEVELOPMENTS AND COMMENTARY
- Fourth Circuit addresses Booker retroactivity
- Is SCOTUS soon to take up Booker retroactivity?
- White-collar Booker breaks
- More intriguing white-collar anecdotes
- Important DC Circuit Booker opinion on alternative sentences
- Another interesting alternative sentence opinion
- Booker oldies but goodies
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- American cultures of life and cultures of death
- Reverberations from Birmingham News rejecting the death penalty
- A bit of death in the afternoon
- A referendum on current views of the death penalty?
- Death penalty headlines
STILL MORE ALITO ALITURE
- A terrific examination of Alito and criminal law
- Curious SCOTUS vote counting (and remembering that death and habeas are different)
- Alito and Feingold discuss the death penalty
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Another major SCOTUS morning
- Important and interesting doings in the House
- Michigan Blakely case to be argued on Tuesday
- Interesting Colorado opinion applying Blakely
- Will Libby get a pardon, sooner or later?
More coverage of Alito's criminal law rulings
This morning's Newark Star-Ledger brings us this article providing more coverage of Judge Alito's work in criminal cases through his 15 years on the Third Circuit. Here is the heart of the article's analysis:
If the decision is close, Alito tends to side with law enforcement and rarely treads new ground, according to interviews with legal scholars and a review of more than two dozen opinions he has written in the past 15 years.
Some recent related posts:
Reverberations from Birmingham News rejecting the death penalty
I suggested in this post that the recent editorial series from the Birmingham News, entitled "Choosing Life in a Death Penalty State," might mark a turning point in the modern cultural story of capital punishment. Interestingly, this AP story provides a detailed account of the series and the reaction it has generated. Of particular interest is this report:
[T]he newspaper hasn't received much negative response to its change of heart, according to editorial page editor Bob Blalock. "So far the reaction has been overwhelmingly positive," he said.
Meanwhile, in cannot be a matter of coincidence that today the Mobile Register runs this extended commentary which argues forcefully that "the Legislature should place a moratorium on executions in Alabama." Notably, this commentary focuses on the new ACLU report entitled "Broken Justice: The Death Penalty in Alabama" (noted before here), but it echoes many of the themes in the Birmingham News editorial series.
Back at the Birmingham News, today the paper has this heart-felt commentary from Alabama law professor Susan Pace Hamill, which emphasizes the links between religion and the death penalty. Here are some choice quotes from a piece entitled "A Spiritual Issue":
I strongly believe as a state where most of us claim to be Christian believers, we must spiritually confront the injustice within Alabama's death penalty system as resulting primarily from the sins of greed, indifference and vengeance....
Our state will not be able to provide justice for both victims of capital crimes and defendants accused of them unless our religious leaders courageously challenge all of us to confront the death penalty as a major spiritual issue that must find balance between ... conflicting ways of perceiving this raw and ugly world.