December 3, 2005
Around the blogosphere
Lots of interesting items to be found around the blogosphere. Let's go alphabetically:
- At the ACSBlog, this post by Michael Mannheimer asks, "Is Alito the State's Advocate in Criminal Cases?"
- At PrawfsBlawg, this post by Will Baude follows up on this debate over a special capital court and also has some interesting comments about the President's pardon power.
- At SCOTUSblog, this post does a great job previewing the habeas case that SCOTUS will hear on Monday.
- At SW Virginia law blog, this post discusses and reflects on a notable recent application of a federal mandatory sentencing term.
More academic arguments for Blakely retroactivity
Though the Supreme Court seems to be in no rush to address Blakely or Booker retroactivity (details here) student scholars continue to address the important retroactivity issue. As previously detailed here, my terrific research assistants has an article in the Ohio State Law Journal entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions." And now I have seen two other similar efforts:
- The Cardozo Law Review's latest issue includes a student note entitled "Is Blakely v. Washington Retroactive?" by Haifeng Peng. Available here, the article argues that Blakely should be found retroactive on a number of theroies.
- The Wisconsin Law Review's forthcoming issue includes a Comment entitled "Reasonable Doubt in the Rear-View Mirror: The Case for Booker/Blakely Retroactivity in the Federal System" by Nic Eichenseer. I have kindly been given permission to make the article available here: Download blakely_retroactivity_eichenseer_final_wpermission.doc
I wonder what might happen if every defendant subject to unconstitutonal judicial factfinding whose sentence was final before Blakely and Booker were to file habeas petitions with all three of these articles attached.
Interesting Olis developments
As detailed in this AP article, Jamie Olis, the former Dynegy executive whose 24-year federal sentence case was reversed by Fifth Circuit's about a month ago (prior coverage here and here), was back in court on Friday. Here are some interesting details from the court appearance:
US District Judge Sim Lake ... said Friday he would re-sentence Olis on Jan. 5, alongside two other former Dynegy executives who pleaded guilty to conspiracy in the scheme, Gene Foster and Helen Sharkey.
Olis' appeal lawyer, David Gerger, had asked the judge to allow Olis to be released from prison pending a re-sentencing. Lake instead offered to order that Olis be temporarily transferred to a federal lockup in downtown Houston from the Oakdale, La., facility where he is housed until the hearing. "My inclination is not to release him to the free world," Lake said.
Foster, Olis' former boss, and Sharkey, a former in-house accountant, pleaded guilty to conspiracy in August 2003 for their roles. Foster testified against Olis and implicated other former Dynegy executives -- including former finance chief Rob Doty -- but no one else has been charged. Foster and Sharkey face no more than five years in prison and will be sentenced Jan. 5 as well.
Judge Lake's comment and decision not to release Olis is notable given that Jamie Olis has already served 18 months in prison. (Recall that some are advocating that Olis now be sentenced to time served.) In addition, scheduling the re-sentencing of Olis along with the sentencing of Foster and Sharkey adds an interesting set of new dynamics in what was already shaping up to be a very interesting Booker resentencing. I especially wonder what the government will be recommending for each of these defendants.
On the changed politics of death
This op-ed from Friday's Washington Post calls Virginia Governor Mark Warner's decision to grant clemency to Robin Lovitt "a landmark in the nation's debate over capital punishment" which reflects a "a changed political climate." In recent posts here and here and here and here, I have spotlighted a lot more recent signs of a changed politics and new culture around the death penalty.
I agree that these political and cultural changes helped save Lovitt's life. Now the question is whether they might save Stanley Tookie Williams' life (background here).
December 2, 2005
Critical dicta(?) for post-Booker appellate review
A sharp reader spotted that the 11th Circuit's decision today in Talley (discussed here) has some very important dicta(?) on a key post-Booker issue that I believe is being litigated in a number of circuits. Talley says that "either a defendant or the government can appeal a sentence within the Guidelines range and argue that it is unreasonable." However, I believe DOJ has been arguing in a number of circuits that, under the strict terms of 18 USC 3742, appellate courts lack jurisdiction to review a within-guideline sentence.
I surmise from the 11th Circuit's opinion that this important jurisdiction issue was not fully briefed in Talley. But it now appears to have been implicitly decided. I thus return again to the point made in this post: reasonableness review, by producing and perpetuating doctrinal confusion, may end up increasing rather than decreasing sentencing disparities in the wake of Booker.
Booker discussion topic: are departures obsolete?
At the end of a long opinion, which covers a lot of intricate guideline calculation issues, the Seventh Circuit in US v. Arnaout, No. 03-3297 (7th Cir. Dec. 2, 2005) (available here), says again that "the concept of 'departures' has been rendered obsolete in the post-Booker world." Slip op. at 14. The Court in Arnaout states, as it did in Johnson in October, that "what is at stake is the reasonableness of the sentence, not the correctness of the 'departures' as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory."
Given that the US Sentencing Commission has stressed that departures are not obsolete after Booker, and that certain kinds of departures are expressly encouraged and discouraged by the guidelines, I find the Seventh Circuit's obsolescence assertion curious and in tension with its view that a guideline sentence is presumptively reasonable. The USSC (and Judge Cassell in his Wilson opinion and others) have sensibly argued that the guidelines comply with the mandates of 3553(a) because they incorporate a departure mechanism to allow for flexibility in application. Is the Seventh Circuit saying that we should throw out all departures (many of which are integrated into particular guidelines), but still consider the rest of the guidelines presumptively reasonable?
I assume that the Seventh Circuit only thinks judicial departures are "rendered obsolete": I doubt the court means to suggest that prosecutors should no longer move for substantial assistance departures under § 5K1.1. But the sloppy and provocative obsolescence assertion in Johnson and Arnaout would seem to put district courts and practitioners in a tough spot. Is the Seventh Circuit saying that defense attorneys in Chicago should no longer request a departure based on aberrent behavior under USSG § 5K2.20? Is it saying that district judges should no longer consider granting departures under USSG § 4A1.3 for inadequate criminal history?
Considering also the Seventh Circuit's sloppy discussion of post-Booker legal standards in Cunningham (discussed here), not to mention the trenchant points made by Judge Carnes of the 11th Circuit (discussed here), I am having more and more doubts about post-Booker appellate review. I am starting to fear that reasonableness review, by producing and perpetuating doctrinal confusion, may end up increasing rather than decreasing sentencing disparities in the wake of Booker.
Eleventh Circuit opines at length about post-Booker sentencing and review
Capping off an eventful Booker week (details here), today in US v. Talley, No. 05-11353 (11th Cir. Dec. 2, 2005) (available here), an 11th Circuit panel spoke at length about post-Booker sentencing practices and its approach to reasonableness review. Here are a few highlights:
[W]hen the district court considers the factors of section 3553(a), it need not discuss each of them.... [A]n acknowledgment by the district court that it has considered the defendant's arguments and the factors in section 3553(a) is sufficient under Booker....
The United States argues that a "sentence at the low end of the applicable advisory Sentencing Guidelines range is, per se, a reasonable sentence." This argument does not comport with the Booker decision....
Although we reject the argument of the United States that a sentence within the Guidelines range is per se reasonable, we agree that the use of the Guidelines remains central to the sentencing process....
Although either a defendant or the government can appeal a sentence within the Guidelines range and argue that it is unreasonable, ordinarily we would expect a sentence within the Guidelines range to be reasonable. After Booker, our ordinary expectation still has to be measured against the record, and the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both that record and the factors in section 3553(a).
Capital reading to mark a "grand" milestone
As detailed in this news report, North Carolina carried out the 1000th execution of the modern US death penalty era and execution 1001 is scheduled for this evening in South Carolina. One way to reflect on this milestone is to keep up with some of the latest academic literature on the death penalty, such as:
- On Andy Warhol's Electric Chair from I Bennett Capers II
- No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty from Carol S. Steiker
- Confronting Death: Sixth Amendment Rights at Capital Sentencing from John G. Douglass
UPDATE: Interestingly, as detailed in this AP report, the White House decided to mark the grand milestone with a statement that President Bush strongly supports the death penalty in the belief that "ultimately it helps save innocent lives."
A capital morning in the papers
This morning brings a host of interesting articles about the death penalty in major papers:
- The New York Times has this fine front-page piece by Adam Liptak on the Tookie Williams case and the modern state of capital clemency. The article astutely details that "Governors once considered the commutation of a death sentence to be an act of mercy or grace. In recent years, though, they have tended to act only to correct errors in the judicial system and, occasionally, to take account of mental illness or retardation." Dan Markel notes here, with appropriate pride, that his recent Minnesota Law Review article gets discussed in the Times piece.
- The Washington Post has this fine front-page piece, entitled "More in U.S. Expressing Doubts About Death Penalty," which discusses Ruben Cantu's possible innocence and details recent death penalty trends.
- The Lawrence World-Journal has this interesting piece noting that Kansas Attorney General Phill Kline "said Thursday he may need U.S. Supreme Court nominee Samuel Alito on the court to successfully defend the Kansas death penalty."
The state of Booker appeals in the 11th Circuit
Law.com this morning has this article discussing the state of Booker appeals in the 11th Circuit. The article reviews the interesting concurrences this week from Judge Tjoflat (discussed here) and Judge Carnes (discussed here). The article also interestingly notes that the "11th Circuit has handled nearly 1,100 decisions in the past 10 months that pertain to Booker, according to a Lexis database search."
December 1, 2005
Lots of stories of death
Kicking off a month of death drama, the CNN website is full of death penalty stories tonight:
- this article reports on the approaching 1000th execution will likely take place in North Carolina tomorrow;
- this article reports on Singapore's execution of a young Australian for a drug crime; and
- this article reports on the death sentence given to a child killer in Florida.
Similarly, TalkLeft is blogging up a storm with strong posts about the Singapore case, about how the US shares capital company with China, Iran and Vietnam, and about the politics of capital clemency.
Minnesota Supreme Court limits reach of "prior conviction" exception
While the federal courts, aided by Booker, continue to undermine Fifth and Sixth Amendment procedural rights at sentencing (see, e.g., today's Second Circuit ruling on enhancing sentences based on acquitted conduct), many state courts continue to give Blakely and procedural rights at sentencing the respect they seem to deserve. For example, the Minnesota Supreme Court today in Minnesota v. Henderson, 03-1898 (Minn. Dec. 1, 2005) (available here), limited the reach of the "prior conviction" exception to Apprendi and Blakely.
Henderson involves a state sentencing enhancement based on a determination of a "pattern of criminal conduct," which the lower court said was not impacted by Blakely because it is "a legal conclusion, not a finding of fact." The Minnesota Supreme Court disagreed:
The relevant rule from Apprendi dictates that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt." Apprendi, 530 U.S. at 490. The Apprendi Court made it clear that recidivism is a narrow exception to the general rule that all facts going to punishment must be found by a jury. Therefore, the additional findings involved in the comparison and weighing of bad conduct go beyond the acceptable parameters of the recidivism exception, because they involve more than the fact of prior convictions. We hold that the determination of a pattern of criminal conduct under Minn. Stat. § 609.1095 goes beyond solely the fact of a prior conviction and, therefore, the imposition of an enhanced sentence based on the district court's finding of a pattern of criminal conduct violated Henderson's Sixth Amendment right to trial by jury.
Second Circuit upholds sentencing based on acquitted conduct
The Second Circuit today in US v. Vaughn, No. 04-5136 (2d Cir. Dec. 1, 2005) (available here), rejects a number of constitutional challenges to post-Booker sentencing. Most disconcerting for those who hoped Blakely might produce a real change in sentencing procedures, the Second Circuit in Vaughn holds that "after Booker, a district court may sentence a defendant taking into account acquitted conduct."
Here's are some key sections of the acquitted conduct discussion (though every part of the Vaughn opinion has passages of interest for those closely following post-Booker sentencing law):
As we have stated recently and reiterate in this opinion, district courts remain statutorily obliged to calculate Guidelines ranges in the same manner as before Booker and to find facts relevant to sentencing by a preponderance of the evidence. See Garcia, 413 F.3d at 220 n.15; Crosby, 397 F.3d at 112. Consistent with that obligation, district courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct, as long as the judge does not impose (1) a sentence in the belief that the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by the jury verdict, or (3) a mandatory minimum sentence under § 841(b) not authorized by the verdict....
On remand, the court is directed to consider all facts relevant to sentencing it determines to have been established by a preponderance of the evidence as it did pre-Booker, even those relating to acquitted conduct, consistent with its statutory obligation to consider the Guidelines. 18 U.S.C. § 3553(a)(4), (5). We restate, however, that while district courts may take into account acquitted conduct in calculating a defendant's Guidelines range, they are not required to do so. Rather, district courts should consider the jury's acquittal when assessing the weight and quality of the evidence presented by the prosecution and determining a reasonable sentence.
Long ago I explained in a series of posts (here are here and here) why I think, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing. Critically, as detailed in those posts, Congress has never expressly provided by statute for preponderance to serve as the proof standard at federal sentencing. Consequently, it is just flat wrong for the Second Circuit to suggest that district courts are "statutorily obliged ... to find facts relevant to sentencing by a preponderance of the evidence." Tellingly, the Second Circuit can only cite to its own prior judicial decisions to support this (incorrect) assertion.
Followers of sentencing jurisprudence know how Watts first upheld the constitutionality of reliance on acquitted conduct and also understand why sentence enhancements based on acquitted conduct are still being approved by circuits after Booker. But is anyone really proud that our Constitution is being interpreted to allow defendants, after they are acquitted by a jury of their peers, to be imprisoned by the state for longer periods of time based on acquitted conduct? Would the Founders be proud of such an interpretation of their work?
Notable 7th Circuit dissent from denial of en banc consideration
A panel of the Seventh Circuit US v. Gipson (discussed here) rejected the claim that "a sentence based upon the guidelines is unreasonable because the guidelines punish crack cocaine offenses too severely relative to offenses involving powder cocaine." And today, as the Seventh Circuit here denied a request to consider this issue en banc, "Judge Ann Claire Williams dissented from the decision not to rehear this case en banc and was joined in the dissent by Judge Terence T. Evans." Accessible here, the dissent has this to say:
I voted to rehear this case en banc, as I think it raises several compelling issues important to our review for "reasonableness" after United States v. Booker, 125 S. Ct. 738 (2005). First, this case raises the issue of the relationship between our prior case law holding that the United States Sentencing Guidelines' disparity between cocaine base and powder sentences is constitutional and the new post-Booker reasonableness standard. Second, this case would allow this court to consider the threshold for rebutting the presumption of reasonableness that attaches to sentences within the Guidelines. Third, the court could consider whether there are any provisions in the Guidelines that are facially unreasonable in the post-Booker world.
The harsh consequences of old criminal history
Earlier this week, I expressed concerns about the Cannon case from the Seventh Circuit in which an apparently small-time drug user, because of two minor state drug offenses from a decade earlier, was require to receive a mandatory life sentence. Continuing the theme of the harsh federal consequences of a long-ago criminal history, consider today's First Circuit decision in Powell v. US, No. 05-2222 (1st Cir. Dec. 1, 2005) (available here).
The ultimate legal issue in Powell is whether a 11-year-old state evasive driving offense qualified as a "violent crime" for purposes of sentencing the defendant to the mandatory minimum term of fifteen years imprisonment under the federal Armed Career Criminal Act (ACCA). Though that legal issue is interesting, and well discussed in Powell, the decision really caught my eye because the defendant is ultimately receiving a 15-year term of imprisonment "for possessing shotgun that [Powell] says he inherited from his deceased father." I wonder what the NRA might think of such a harsh federal sentence for inheriting a shotgun.
December 1, 2005 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4) | TrackBack
Important work on drug sentencing in New Jersey
As detailed in this Newark Star-Ledger article and this AP follow-up, the New Jersey Commission to Review Criminal Sentencing is about to produce an important report with powerful recommendations urging reforms to the state's drug sentencing laws. Here are some highlights:
A blue-ribbon commission that reviewed the state's criminal sentencing laws will recommend next week that New Jersey reduce the size of drug- free school zones and eliminate mandatory minimum prison terms, Corrections Commissioner Devon Brown said yesterday....
The issue of drug-free zones has been the subject of heated debate for decades. Supporters of the current laws say they are designed to keep children from being offered drugs as they walk to school. Critics say they have been used disproportionately against minorities in urban areas, where the combination of drug-free zones can blanket an entire municipality and guarantee anyone arrested for dealing drugs does a long stretch in prison....
The recommendation to reduce the size of the drug-free zones is aimed at preserving the Legislature's intent to keep kids safe from drugs while giving judges more discretion in crafting sentences, according to one of the sources.
My understanding is that the report from the NJ Commission will be released next week, and the AP story spotlights that "Ben Barlyn, the commission's executive director, said yesterday that the report would provide a wealth of data to back up the recommendations." Based on these press accounts, I am hopeful the New Jersey report will be an example of the power of data and sound policy-making over political rhetoric, and also an example of the important work that expert sentencing commissions can do to address and help transform problematic sentencing issues.
Interesting discussion of fast-track disparities
Amidst the steady drumbeat of rejected habeas petitions based on Blakely or Booker, I found an interesting recent district court decision discussing sentencing disparities in immigration cases. In US v. Duran, No. 04 CR. 1086, 2005 WL 3116173 (SDNY Nov. 21, 2005), Judge Victor Marrero explores various aspects of the "significant legal and sentencing policy debate [that] exists among district courts throughout the country" concerning immigration offense sentencing, especially because of the development of fast-track programs in some districts.
Here are some notable passages from the notable discussion of these issues in Duran:
As a result of differences in interpretation of the Sentencing Guidelines in light of United States v. Booker, 125 S.Ct. 738 (2005), and 18 U.S.C. § 3553(a), substantial variations in sentences for illegal reentry cases have been produced in different districts. The effects will be most pronounced, and potentially even pernicious, in districts where judges of the same court split conceptually into different camps and impose sentences for this offense depending upon whether they accept or reject the double-counting and fast-track arguments as legitimate grounds to guide their sentencing decisions. By dint of that discord, a form of wheel-of-fortune effect may be emerging in some districts, in consequence of which the length of particular illegal reentry offenders' sentences will be determined, or even predetermined, by whether or not the judge randomly assigned the case conceptually recognizes the double-counting and fast-track considerations as decisive grounds for modifying the sentence produced by application of the Guidelines....
[T]he disparities between sentencing in fast-track and non-fast-track districts arise from prosecutorial decisions similar to an individual prosecutor's decisions to charge, to engage in plea-bargaining or offer cooperation agreements, or to a particular United States Attorney's Office's policies regarding charging or plea bargaining. Of necessity, a prosecutor's choice to charge certain offenders or offenses more severely than others or to enter into plea agreements with some defendants but not others involved in the same crime is bound to engender significant variations in the sentences that result in the same case or type of case, or from one district to another where different prosecutorial policies or social conditions may prevail. But such inevitable, indeed probably common, sentencing disparities as regards other cases could not serve to warrant determination by a court in one district to impose sentences resting solely or even predominantly on the existence of that policy in another court or district. To this degree this Court regards the illegal reentry cases not appreciably different from others that may raise similar prosecutorial policy issues, even if not with the same quantitative or geographic scope or level of formality that governs the fast-track program. The Court also finds persuasive the view of the several judges in this district who have held that in and of itself sentencing disparities that arise as a result of the existence of fast-track programs in other districts do not warrant a departure from the guidelines.
November 30, 2005
December dramas for the death penalty
As detailed in this post, December 2004 was quite notable because it was the first month in over a decade in which no person was executed inthe United States. December 2005 is also shaping up to be a noteworthy month for the death penalty for somewhat different reasons:
- On December 2, the 1000th execution in the modern death penalty era is likely to go forward (after a clemency grant to Robin Lovitt allowed Virginia to avoid this "grand" achievement).
- On December 7, the Supreme Court will be hearing arguments in two important capital cases, Oregon v. Guzek (No. 04–928) and Kansas v. Marsh (No. 04–1170). More details on these cases, and other capital cases on tap this Term, are available here from the DPIC.
- By December 13, California Governor Arnold Schwarzenegger will have to decide whether to grant clemency to California death row inmate Stanley "Tookie" Williams in the highest profile capital case in many year. More details on the Williams case are available in this prior post and its links, as well as in this long and effective post at the ACSBlog.
Wisdom from Judge Carnes on post-Booker appellate review
Wednesdays are often busy in the federal circuit courts (even around holidays), and today I already see notable criminal rulings from the Third, Fourth, Fifth, Sixth, Seventh and Ninth Circuits. But the decision of the day — perhaps of the month — comes from the Eleventh Circuit in US v. Williams, No. 05-11318 (11th Cir. Nov. 30, 2005) (available here).
The per curiam opinion for the court in Williams is itself notable because a dozen pages are needed to resolve the "meaning of the word 'any' as it is used in US Sentencing Guideline § 2K2.1(c)(1)." (Amazingly, this single "any" has produced two distinct circuit splits — that right, two circuit splits(!) — over the application of the federal guidelines.) What makes Williams truly special is Judge Carnes' concurrence, which is chock full of wise insights about post-Booker appellate review.
To appreciate his fine work, Judge Carnes' opinion in Williams should be read in full. Here is an sample (with cites omitted) to encourage review of the whole work:
The Booker decision did not free us from the task of applying the Sentencing Guidelines, some provisions of which are mind-numbingly complex and others of which are just mind-numbing. Because the post-Booker regime requires "accurate advice" from the guidelines, we have held that the guidelines must be applied correctly. The sword dance must still be done. Its steps can be intricate and the music unrelenting, as this case shows....
This case is a good example of how we are spending our sentence review time. In the course of reviewing the sentence in this simple-crime case, we have decided three guidelines issues, at least two of which are difficult enough to have produced circuit splits....
Therein runs a thread of madness through the method now in place. We review and decide close, hair-splitting interpretive issues arising from guidelines that are only advisory, and we set aside sentences even though the district court, once its "misunderstanding" of the guidelines is corrected, is free to impose the same sentence, and usually will do so..... If the federal court system had endless resources or light dockets, the post-Booker system of sentence review would make more sense, but the judicial world we inhabit is one of scarce resources burdened by heavy demands. Of course, neither this Court nor the district courts can change the Booker guidelines sentencing regime and the appellate review system that applies to it.
Of sentencing interest in Alito questionnaire
Everyone can now access Judge Sam Alito's responses to the Senate Judiciary Committee's questionnaire at this link, and there are some interesting sentencing snippets in the document. For example, Alito reports his status from 1988 to 1993 as an Advisory Board Member for the Federal Sentencing Reporter (when he wrote two interesting pieces for FSR discussed here and here). Also, Alito lists his time as a member of the Constitution Project Sentencing Initiative as "2004 – present," which perhaps answers my query about whether he will continue to serve on this project as it continues to explore the impact of Blakely, Booker and the future of federal sentencing reform.
Relatedly, I see that, toward the end of long response about sppeches and talks, Judge Alito notes this event:
Panel discussion on sentencing sponsored by the Constitution Project and the American Constitution Society, March 9, 2005, Washington, DC. Judge Paul Friedman of the United States District Court for the District of Columbia, Judge Nancy Gertner of the United States District Court for the District of Massachusetts, and I participated in a panel discussion on federal sentencing. The panel discussed the effect of United States v. Booker, 125 S. Ct. 738 (2005) on the future of federal sentencing. A transcript of the panel discussion is supplied.
I recall noting this event way back when, but I never knew there was a transcript. And I have now discovered that along with other materials, the Constitution Project has the transcript of this March event available at this link. The transcript reveals that, though Judge Alito speaks only a few times during the event, all of his comments are knowledgeable and insightful and non-committal (and only a bit dated).