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.