November 26, 2005
Long weekend reading
Though the long weekend is (sadly) winding down, here are a few papers of note on sentencing-related topics from SSRN that can keep sentencing fans engaged through the rest of the weekend:
- Proportionality as a Principle of Limited Government by Alice Ristroph
- Roper v. Simmons and Our Constitution in International Equipoise by Roger Paul Alford
- Why are Federal Judges so Acquittal Prone? by Andrew D. Leipold
Still more buzz about executing Tookie
Thanks to this informative post at TalkLeft, I see important articles in the San Francisco Chronicle and The Washington Post about the scheduled execution of California death row inmate Stanley "Tookie" Williams and the competing arguments being made to Governor Arnold Schwarzenegger as he considers whether to grant clemency to Williams.
The Chronicle article details that Schwarzenegger will meet with Williams' lawyers days before his scheduled execution, and the Post article notes that Williams' "death date has prompted one of the most high-profile debates on capital punishment in years." Also, this AP article thoughtfully discusses the "star support" that Williams is garnering.
Related posts (which include links to clemency papers):
Major Minnesota Blakely ruling
The Minnesota Supreme Court on Wednesday issued a major Blakely opinion in State v. Allen, No. A04-127 (Minn. Nov. 23, 2005) (available here). Here is the official syllabus for the nuanced Allen ruling:
1. The imposition of an upward dispositional departure under the Minnesota Sentencing Guidelines, based on the district court's finding that appellant was unamenable to probation, violated appellant's Sixth Amendment right to a jury trial.
2. The district court did not violate the Sixth Amendment by assigning appellant a custody-status point in determining his presumptive sentence under the Sentencing Guidelines.
Notably, the Allen court rejects an offense/offender distinction advanced by the state to try to keep Blakely's from reaching upward dispositional departures (a distinction I develop in my article "Conceptualizing Blakely," 17 Fed. Sent. Rep. 89 (2004) (available here) and in other recent writings). However, the Allen court does give Blakely's "prior conviction" exception a somewhat broadened scope in order to conclude that Blakely did not impact judicial factfinding concerning "custody-status points."
November 25, 2005
Talking more Tookie
In this post, I noted the buzz surrounding the scheduled execution of California death row inmate Stanley "Tookie" Williams and the competing arguments being made to Governor Arnold Schwarzenegger as he considers whether to grant clemency to Williams. I also noted that, though the "Petition for Executive Clemency on behalf of Stanley Tookie Williams" was available at this webpage of the law firm of Curtis, Mallet-Prevost, Colt & Mosle LLP, I could not find on-line any of the filings opposing clemency.
Helpfully, an FOB (friend of blog) sent me a copy of the "Los Angeles County District Attorney's Response to Stanley Williams' Petition for Executive Clemency." This 57-page response arguing against clemency for Williams is available for download below.
Some sentencing leftovers from the circuits
Today is the day for shopping and leftovers. Both leave me too sleepy to discuss at length the various sentencing cases that were decided by the circuit courts on Wednesday before the holiday started. But I can at least note and link these (tasty?) rulings:
From the First Circuit, US v. Rondeau, No. 05-1054 (1st Cir. Nov. 23, 2005) (available here) concerns the presentation of hearsay evidence at a revocation hearing.
From the Second Circuit, US v. Bliss, No. 04-1163 (2d Cir. Nov. 23, 2005) (available here) concerns the application of the obstruction of justice enhancement under the federal sentencing guidelines.
From the Fourth Circuit, US v. Shamblin, No. 04-4571 (4th Cir. Nov. 23, 2005) (available here) remands for resentencing in one of the major cases from the Blakely-Booker interregnum.
From the Sixth Circuit, US v. Smith, No. 04-5669 (6th Cir. Nov. 23, 2005) (available here) concerns the application of the acceptance of responsibility provision under the federal sentencing guidelines.
From the Seventh Circuit, US v. Cross, No. 05-2222 (7th Cir. Nov. 23, 2005) (accessible here) rejects a number of challenges to the determination of a drug sentence.
From the Eleventh Circuit, US v. Munoz, No. 05-2222 (11th Cir. Nov. 23, 2005) (available here) rejects a number of challenges to the determination of a fraud sentence.
Also, anyone eager for a "fresh" sentencing decision can look to the hard working Eighth Circuit, which today rendered an interesting decision addressing revelvant conduct issues as well as Booker issues in US v. Schafer, No. 04-3101 (8th Cir. Nov. 25, 2005) (available here).
Readers are robustly encouraged to use the comments to spotlight if there are any especially significant and consequential aspects to any of these rulings.
Marking a "grand" capital punishment milestone
This AP story details that the United States will "likely see its 1,000th execution in the coming days" since the modern death penalty system was restarted after the resolution of basic constitutional challenges. The piece effectively explores concerns about race and innocence as the capital punishment system approaches this "grand" milestone. (At this category archive, there is a lot more coverage of recent buzzing about a broad range of death penalty issues.)
UPDATE: The Death Penalty Information Center now has a lot of materials on the run up to the 1000th execution on its main webpage. The DPIC also has this interesting report about those supporting a grant of clemency for Robin Lovitt in Virginia, who is now scheduled to be the 1000th person executed.
More on Alito and the criminal docket
The Boston Globe has this article which discusses the impact a Justice Alito could have in criminal cases and explores how "Alito's strict view on law-and-order cases may be decisive on a Supreme Court that has been narrowly divided on cases involving civil liberties, the death penalty, and the rights of defendants." The article mostly focuses on Judge Alito's Third Circuit dissent in the "strip search" case (Doe v. Grody) and the dueling interpretations of the case put forth by Alito supporters and detractors.
Of late, I have been thinking about how another new Justice, and especially one with a criminal justice background, might impact the High Court's criminal docket as well as its criminal decisions. That is, I wonder whether a Justice Alito might be more (or less) inclined to vote to grant cert in certain types of criminal cases. (Of course, I focus on this issue because there are so many post-Blakely and post-Booker questions that I think merit the Supreme Court's attention and because I hope not to have to keep kvetching again and again about the Court's grants of cert in so many death penalty cases.)
- Roberts, the cert pool, and sentencing jurisprudence
- Pondering a (cert.) pool with much splashing about
- Cert. pool filling up with Blakely cases
- The waiting is the hardest part...
November 24, 2005
A sentencing turkey for Thanksgiving
I had planned to celebrate one of my favorite holidays by doing a reprise of my Giving Thanks post from last year. However, news I received via e-mail suggests I should devote my one post today to relay news that House Judiciary Chair James Sensenbrenner is working on a real sentencing turkey. Here are the highlight — really lowlights — of the report I received about new crime legislation in the works:
Rep. Sensenbrenner is planning an omnibus crime bill package that would pass the House on the suspension calendar (so it could not be amended) and be sent to the Senate in hopes that it, or some more palatable version of it, could pass by unanimous consent there before the end of the year. It could include H.R. 1279 (gang bill); HR 3132 (sex offenses, including obnoxious habeas provision); and HR 1751 (court security bill).
The House sponsor appears to be willing to pare some unpopular parts of the bill to lure the Senate, maybe including the mandatory minimums (like the one for failure to register as a sex offender), maybe other stuff. They are banking on the fact that the Senate wants a court security bill and maybe others. The language for this omnibus should be ready by the time the members return from recess.
This is a story to watch closely after the holiday weekend.
November 23, 2005
The car and family are packed as we head out for the holiday. Blogging will likely be light through the weekend, although I suspect I will not be able to resist doing a reprise of my Giving Thanks post from last year. Also, I hope to find some time during the long weekend to complete the next installment of my "Dead Booker walking?" series.
In the meantime, here are some highlights since my last week-in-review post:
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- Did Texas execute an innocent man?
- More evidence an innocent man was executed?
- More buzzing about possible wrongful execution(s)
- New report on the costs of capital punishment
- More on a new death penalty culture
- Latest BJS death penalty stats as we approach 1000th execution
STILL MORE ALITO ANALYSIS
- Alito motivated by anti-Warren Court feelings
- Still more on Alito and the death penalty
- Full Daily Journal article on Alito and the Constitution Project
BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY
- Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes
- Seventh Circuit vacates guideline sentence for inadequate explanation
- Judge Posner's important and flawed work in Cunningham
- Long sentence for software pirate affirmed by 8th Circuit
OTHER BOOKER DEVELOPMENTS AND COMMENTARY
- Ground zero for post-Booker crack/powder debate
- Great Booker resources from federal defenders
- Judge Gertner applies Sixth Amendment to restitution
- Another month of Booker stats from the USSC
- Data, data, data, data, data....
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Tenth Circuit argument in Angelos mandatory minimum case
- New report on incarceration and crime
- Significant Minnesota Blakely opinion
- A new argument for considering family circumstances at sentencing?
- Lots of sentencing in Harvard Law Review Supreme Court issue
November 22, 2005
More buzzing about possible wrongful execution(s)
The MSM and the blogosphere continue to discuss the evidence developed by the Houston Chronicle that Texas executed Ruben Cantu in 1993 for a murder he did not commit. Following up its work discussed here and here, the Chronicle has this addition piece on the Cantu case, and today Reuters produced this article about the Chronicle's analysis of the case.
Meanwhile, the Cantu case has the blogosphere buzzing with posts today from Instapundit and Clayton Cramer and TalkLeft and Abolish the Death Penalty. And, interestingly, this press release from Amnesty International highlights that, as we approach the 1000th death sentence carried out since capital punishment was reinstated in 1976, there is also "strong evidence" than another innocent man, Larry Griffin, was executed in Missouri in 1995. (This AP story from July provides background on the Griffin case).
So, while we might have the 1000th execution in the modern death penalty era next week, it may take a few more weeks before we have the 1000th execution of a guilty person in the modern death penalty era.
UPDATE: A helpful reader reminded me of this Chicago Tribune special report from December 2004, which suggests that Cameron Todd Willingham, who was executed by the state of Texas in February 2004, may not have been guilty of the crime for which he was executed.
Great Booker resources from federal defenders
In addition to the great memo tracking SCOTUS criminal cases noted here, the federal defenders' Blakely/Booker page has available two updated resources for those trying to make sense (and make use) of the post-Booker federal sentencing universe.
Courtesy of Amy Baron-Evans, Sentencing Resource Counsel, you can read 56 pages about the state of Sentencing Post-Booker in this memo. And courtesy of Michael R. Levine, you can read all about 108 Easy Mitigating Factors (Formerly “88 Easy Departures”): Cases Granting, Affirming, Or Suggesting Mitigating Factors in this document.
Seventh Circuit on processing appeal waivers
Thanks to this post by Marcia Oddi at The Indiana Law Blog, I see that the Seventh Circuit today in the habeas case of Wayne v. US, No. 05-3092 (7th Cir. Nov. 22, 2005) (accessible here), had occassion to talk about appeal waivers. Here is the money quote:
We can accomplish the goal of enforcing waivers appropriately only if the government clearly alerts the court to the existence of the waiver and furnishes the necessary information about its exact terms.
Long sentence for software pirate affirmed by 8th Circuit
As revealed on this official opinion page, the Eighth Circuit today is back in action with more than a half-dozen criminal case dispositions that include sentencing issues. The one published decision that caught my eye is US v. Susel, No. 05-1227 (8th Cir. Nov. 22, 2005) (available here), which affirms a prison sentence of 51 months for an employee of a software manufacturer who "stole copyrighted software from his workplace, sold the software on eBay, and delivered the software to purchasers through the United States mails."
The opinion in Susel is focused on various technical guideline calculations issues, though I am intrigued by the broader story of this particular defendant getting such a long sentence for software piracy. Notably, in this Senate testimony last year, Assistant AG Chris Wray bragged about major software pirates having "received prison sentences of between 33 to 50 months, the longest sentences ever imposed for Internet copyright piracy at the time." Similarly, this post at White Collar Crime Prof Blog notes a press release from earlier this year which brags that a major software pirate received a sentence of three years' probation.
Because the defendant in Susel does not seem like a major software pirate, I cannot help but ponder whether his sentence of 51 months' imprisonment complies with the statutory mandate in 3553(a) that the district judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in" the Sentencing Reform Act. Also, what of the statutory obligation, detailed in 3553(a)(6), to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct"? I had hoped these sorts of issues would become the focal point of post-Booker sentencing decisions, but Susel suggests that the guidelines' diktats will continue to dominate sentencing decision-making even in a post-Booker world.
UPDATE: Ellen Podgor over at the White Collar Crime Prof Blog here provides more commentary on this case and notes a 37-month sentence in another (more serious?) software piracy case out of New York.
New report on the costs of capital punishment
I have long thought that one strong argument against the modern death penalty centers on the extraordinary economic costs of administering a system of capital punishment. And thanks to this Newsday article, I see that a new report concludes that New Jersey has spent over a quarter of a billion dollars(!) on its death penlaty system without having actually executed anyone.
This new report comes from the New Jersey Policy Perspective, which claims to be a "nonpartisan" research group. The report, which is available here, is entitled "Money For Nothing? The Financial Cost of New Jersey's Death Penalty." The report's analysis culminates in this conclusion:
Having the death penalty on the books has cost the State of New Jersey more than $250 million since capital punishment was reinstated in 1982. That is, at best, a very conservative estimate. Given the difficulty in obtaining precise information from the various state and county entities that play a role in capital cases — and what appear to be decisions by those entities not to keep track — there is considerable reason to believe the figure is higher....
From a strictly financial perspective, it is hard to reach a conclusion other than this: New Jersey taxpayers over the past 23 years have paid more than a quarter of a billion dollars on a capital punishment system that has executed no one.
Great account of SCOTUS criminal docket
A little late-night web wandering led me to this terrific memo by Fran Pratt which tracks criminal cases in the Supreme Court during the current Term. The memo confirms my initial impression that we are getting a lot of death and habeas from the Court this Term.
Though there is still more than three weeks until his scheduled execution, everyone is already talking about California death row inmate Stanley "Tookie" Williams. This USA Today article details that "celebrities and law enforcement officials are competing to sway California Gov. Arnold Schwarzenegger as he decides whether to spare the co-founder of the international Crips street gang from execution." That article notes that "Ronald Reagan was the last California governor to commute a death sentence, in 1967."
In addition to growing media coverage, this high-profile capital case has the attention of the blogosphere, as evidenced by notable posts at the ACSBlog and at TalkLeft and at The Volokh Conspiracy. All signs suggest that this case will present the most scrutinized clemency decision since then-Governor George W. Bush decided not to grant clemency to Karla Faye Tucker despite appeals from the likes of Pope John Paul II and Pat Robertson (background here from wikipedia).
You can access the "Petition for Executive Clemency on behalf of Stanley Tookie Williams" at this webpage of the law firm of Curtis, Mallet-Prevost, Colt & Mosle LLP. I know that petitions have been filed opposing clemency, but I cannot seem to find these documents on-line.
November 21, 2005
Ground zero for post-Booker crack/powder debate
This extended and thoughtful article, which ran on the front page in Sunday's Providence Journal, highlights that Rhode Island is perhaps ground zero in the on-going post-Booker debate over the sentencing disparity between crack and powder cocaine. The article provides an extended account of Rhode Island District Judge William Smith's decision in US v. Perry (discussed here), in which Judge Smith found "that the crack/powder disparity cannot stand up to the scrutiny of analysis under 18 U.S.C. § 3553." The article also discusses the First Circuit appeal from Rhode Island Chief Judge Torres's similar decision in US v. Pho (discussed here), in which the government lays out its opposition to any across-the-board sentence adjustment based on the crack/powder disparity.
Still more on Alito and the death penalty
Thanks to Howard Bashman, you can access at this link the full text of an article by Brent Kendall in Friday's Daily Journal of California entitled "Alito Could Swing Death Decisions to the Right." Also courtesy of Howard, this article from the Lawrence Journal-World provides a great primer on a capital case from Kansas (Kansas v. Marsh) that a Justice Alito could ultimately "swing," although the case is initially to be argued before Alito's confirmation hearings. The hair-raising comments to the Kansas article (scroll down) also highlight why, despite my posts suggesting otherwise, the American culture of the death may never change.
Related posts on Alito:
- Alito and the death penalty
- Alito and Feingold discuss the death penalty
- More on Alito the prosecutor and Alito on the death penalty
Related posts on Kansas v. Marsh:
- The death penalty is not in Kansas anymore
- A sign of the capital times
- A capital waste of time?
- Deeper thoughts on Marsh and sentencing burdens of proof
Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes
The Seventh Circuit today in US v. Welch, No. 03-3638 (7th Cir. Nov. 21, 2005) (accessible here) demonstrates yet again that the principles of Blakely have been undermined by the Booker remedy. In Welch, the district court nearly doubled the defendant's sentence based on its "finding, by a preponderance of the evidence, that the defendant had committed four other bank robberies" that apparently were never formally charged. The Seventh Circuit in Welch walks through all the post-Booker rules to conclude that there is no problem with a judge's decision to greatly enhance a defendant's sentence based on that judge's conclusion, by the preponderance of the evidence, that the defendant committed other offenses that apparently were never the subject of indictment or subject to true adversarial testing.
Interestingly, the Seventh Circuit in Welch quotes from the district court's "conviction" of the defendant on four crimes that it seems were never indicted or subject to adversarial testing:
After reviewing all of the evidence, this Court finds that the Government has put forth sufficient "reliable" evidence to show by a preponderance of the evidence that Welch committed the three bank robberies at Tech Federal on February 7, March 25[,] and May 20, 1997, and the robbery of the Bank of Homewood on July 8, 1997. While no one piece of evidence clearly implicates Welch, the totality of the evidence meets the preponderance of the evidence standard. Of particular importance to this Court is the black jacket found at his residence, the yellow hard hat, the statement to Austin, and the bank surveillance photos. Moreover, even discrediting the identification by Judith Welch and the teller, this Court finds that their identification of Welch is sound. After closely observing Welch at the trial and the sentencing hearing and closely comparing him to the bank surveillance tapes, this Court firmly believes that Welch is the robber in those photographs.
I have to think that the Founders who had a role in ensuring that trial by jury was guaranteed in both Section 2 of Article III and in the Sixth Amendment are right now rolling over in their graves. (Of course, these Founders likely rolled over a couple times after the Supreme Court in Watts held that acquitted conduct could be the basis for a mandatory sentence enhancement. But if the spirits of these Founders had some new hope after Apprendi and Blakely came along, Booker and Welch surely having them spinning in their graves again.)
More evidence an innocent man was executed?
Following up its Sunday front-page story suggesting Ruben Cantu was executed in 1993 for a murder he did not commit (noted here), the Houston Chronicle today continues in this article to call the Cantu case one about "death and doubt." Notably, the AP has picked up this story (as shown in this cnn.com coverage), as has Dan Markel at PrawfsBlawg.
I think that the story of an innocent man being executed, if it gains additional traction in the mainstream media, could have a major impact on an already dynamic national death penalty debate. As detailed in recent posts linked below, there are many signs that the American death penalty culture is in the midst of a significant transformation. Clear evidence that Texas has executed an innocent man could further speed up that transformation.
- American cultures of life and cultures of death
- Reverberations from Birmingham News rejecting the death penalty
- More on a new death penalty culture
- More signs of the capital times
November 20, 2005
Dead Booker walking?: an introduction
Comments at recent Booker events in Chicago and Houston once again gave me the cold feeling that congressional action in response to Booker is all but inevitable. As previously detailed in posts here and here, the beltway buzz is that both the House and the Senate may jump into Booker action come the one-year anniversary of the Booker decision. (I sort of imagine a giant cake being rolled onto the House floor on January 12, out of which will jump AG Alberto Gonzales holding the Booker fix minimum guidelines bill that the Justice Department wants enacted.)
In anticipation of the brewing Booker fix debate, I am starting a series of posts under the title "Dead Booker walking?". The goal of this series is to explore, one by one, the arguments which might be made in support of new sentencing legislation in response to Booker. In this introduction, I have assembled below the concerns expressed by AG Alberto Gonzales when calling for a legislative "Booker fix" in a speech this past summer (basics here, commentary here and here and here).
Chief arguments/reasons for a Booker fix
- Concerns about "increasing disparity in sentences"
- Concerns about "a drift toward lesser sentences"
- Concerns about "key witnesses [being] increasingly less inclined to cooperate with prosecutors"
- Concerns about defendants "receiving sentences dramatically lower than the guidelines range without any explanation, or on the basis of factors that could not be considered under the guidelines"
- The need to "secure a system of tougher, fairer, and greater justice for all"
In subsequent "Dead Booker walking?" posts in the coming weeks, I hope to explore each of these issues one-by-one. In the meantime, I encourage readers to use the comments to suggest other arguments or reasons for a Booker fix beyond those which have been articulated in AG Gonzales' speeches.
Significant Minnesota Blakely opinion
Last week, the recent Minnesota Supreme Court issued an interesting and important ruling in State v. Barker, No. A04-1453 (Minn. Nov. 17, 2005) (available here). Previously discussed here following a March ruling by the state Court of Appeals, Barker raised the issue of whether the US Supreme Court's Harris decision, which allows for judicial fact-finding in support of mandatory minimums, might permit such fact-finding when the mandatory minimum sentence is greater than the presumptive guideline sentence.
The Minnesota Supreme Court decision in Barker reaffirms that imposition of a higher "mandatory minimum sentence" sentence still violates Blakely when based on facts not found by a jury. (In other words, Blakely trumps Harris when they are in tension.) The Barker case also covers some important ground concerning the meaning of what it calls "the Blakely admission exception."
Late week interesting rulings from the Circuits
From the Ninth Circuit, US v. Schneider, No. 03-30527 (9th Cir. Nov. 18, 2005) (available here) would have been a simple Ameline remand, except that Judge Ferguson decided to write a separate concurrence to explain why, in his view, "the District Court's refusal to depart under § 5K2.13 [for diminished capacity] rested on two significant errors." Notably, the majority in Schneider (comprised of Judges Trott and Kleinfeld) drops a footnote to explain that they "respectfully disagree with our able colleague's analysis of the district court's refusal to depart under § 5K2.13 of the Sentencing Guidelines," even though they feel that they did not need to "formally respond to our colleague's analysis given that we all agree that an Ameline remand is necessary."
From the Tenth Circuit, US v. Visinaiz, No. 04-4277 (10th Cir. Nov. 16, 2005) (available here) covers a lot of ground in the course of affirming a conviction and sentence; most notably, Visinaiz affirms Judge Paul Cassell's conclusion last year that Blakely is inapplicable to restitution awards. The Tenth Circuit clarifies its view that "restitution is not criminal punishment" in order to avoid Blakely and Booker concerns. (Regular readers will recall that, as detailed here, Judge Nancy Gertner came to a different conclusion on this issue earlier this week.)
Lots to read in the papers
This morning brings a lot of interesting sentencing items in the newspapers on topics ranging from white-collar offenses to the death panalty:
- The Chicago Tribune has this extended article on white-collar sentencing, which effectively explores a range of key issues. For more coverage of this topic, check out recent posts here and here and here.
- The Los Angeles Times has this potent editorial opposing the habeas reforms in the Streamlined Procedures Act. The Birmingham News, which has become a forceful voice against the death penalty, has a similar editorial against the SPA here. For more coverage of this topic, check out recent posts here and here and here.
- The LA Times also has this extended review of Judge Alito's work as a circuit judge in the Rompilla, a case in which the Supreme Court overturned a death sentence that Alito upheld. For more coverage of this topic, check out recent posts here and here and here.
- Also, a rally by rapper Snoop Dog suporting clemency for California death row inmate Stanley "Tokie" Williams has generated interesting press coverage from the AP, the LA Times, the San Francisco Chronicle and lots of other outlets.