December 10, 2005
Might Sunstein and Vermeule say clemency for Tookie Williams is now morally required?
There are now many serious news reports that authorities in Los Angeles are concerned about possible rioting if Stanley "Tookie" Williams is executed as planned. One story notes: "Fearing a repeat of the 1992 race riots in which 52 people died, police, schools and community groups have been told to prepare for violence if clemency is not granted." Notably, as noted here, President Bush has said he strongly supports the death penalty because he believes "ultimately it helps save innocent lives." However, it is perhaps now reasonable to fear that executing Tookie Williams could spark riots that might cost innocent lives.
These rioting concerns lead me to wonder whether Professors Cass Sunstein and Adrian Vermeule might now believe that California Governor Arnold Schwarzenegger is morally required to grant clemency in order to save the lives that could be lost in riots if he fails to grant clemency. Sunstein and Vermeule have recently argued against act-omission distinctions when judging governmental action in a provocative article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs" (which I first noted here and critiqued here). The logic of their consequentialist claims would seem to suggest that Gov. Schwarzenegger is morally obligated to grant Tookie Williams clemency if the Governor has good reason to believe that innocent lives will be lost from his failure to intercede.
A classic chestnut in debates over utilitarianism asks whether a sheriff should allow the execution of a defendant he believes to be innocent in order to placate a mob that will otherwise kill many more persons. In the Tookie Williams case, it would appear Gov. Schwarzenegger could be facing the converse dilemma: should he prevent the execution of a defendant he believes to be guilty in order to placate a mob that could end up killing many more persons?
New important collateral sanctions resource
This week I received information about a valuable project/website, Reentry Net, which is a free information clearinghouse for criminal defense, legal services, social services, and policy advocates on the consequences of criminal proceedings. Within that resource, one can now find this state pilot project, Reentry Net/NY, which focuses on collateral sanctions in New York State.
Notable death penalty headlines
All the interest and interesting issues in the Tookie Williams' case should not completely overshadow some other noteworthy recent news and developments involving the death penalty. Consider:
- This article reporting that "a county prosecutor is calling for New Jersey to abolish the death penalty, which he says exists in theory but not in practice" and operates as "a cruel hoax on victims' families."
- This article reporting that the "Mexican government formally abolished the last vestiges of its death penalty on Friday."
- This article reporting that "China will make court proceedings on death penalty appeals open to the public next year in a bid to safeguard human rights, the government said Thursday."
Still more interesting federal sentencing tales
As detailed in this post, the past week started with a number of fascinating federal sentencings on Monday. And the stories linked below highlight that the week also ended with more of the same:
- This article reports on the sentencing of a scam artist who was given "10 years in federal prison for peddling fraudulent art over the Internet."
- This article reports on the sentencing of a long-time journalist who was given "four months in federal prison followed by 18 months of home detention for possessing 15,000 images of child pornography on his home computer."
- This article reports on the sentencing of drug smuggler who was given 17 years in prison, though two co-defendants previously received sentences of only 3 years because of their cooperation.
- This article reports on the sentencing of "four former concrete company executives ... for their roles in a price-fixing scheme that also resulted in the largest domestic antitrust fine in U.S. history" who were given five months in prison and five months of probation.
Of course, all these sentencings noted here and in prior posts from this week represent only about 1% of the more than 1000 sentences handed out each week in the federal courts. I often like to joke that criminals (not to mention politicians) will always make sure I have a job.
December 9, 2005
Interesting sentencing developments in HealthSouth case
As detailed in this news report, "Former HealthSouth Corp. finance chief Bill Owens has been sentenced to five years in federal prison and two years of supervised probation for his role in a six-year, $2.7 billion accounting fraud at the Birmingham-based health-care rehabilitation giant." Though it is hard to tell from the news story, it appears that this sentence was below the government's recommended sentence, although it also appears that the government moved for a departure on the basis of 5K1.1.
As the press story indicates, the sentencing judge, US District Judge Sharon Lovelace Blackburn, made a number of interesting comments at the sentencing:
In a surprising statement to Owens, Blackburn said, "I do not believe you were the architect of the fraud. That person [referring to HealthSouth CEO Richard Scrushy who was acquitted in June of 36 criminal counts] in my view escaped justice."
Blackburn said she imposed the sentence not to deter Owens from future acts but as a deterrent to white-collar crime in general. "Corporate offenders are nothing more than common thieves wearing suits and wielding pens."
Additional coverage of the Owens' sentencing can be found in this Reuters account and this AP account. the Reuters story notes that Owens' sentence is "the harshest sentenced meted out so far to any of the 15 executives charged in the case" and more than double the length of the next harshest sentence.
Additional coverage of many post-Booker white-collar sentencing issues can be found in these posts:
- White-collar Booker breaks
- Interesting perspective on white-collar sentencing
- A pattern of white-collar leniency?
- Are the federal guidelines too tough on white-collar offenders?
- Tough sentences for white-collar offenders
Fifth Circuit officially rejects retroactive application of Booker
The Fifth Circuit has, through its decision in US v. Gentry, No. 04-11221 (5th Cir. Dec. 8, 2005) (available here), joined circuit bandwagon in declaring that Booker is not to be applied retroactively. Providing a thorough analysis of all the basic doctrinal issues (but not acknowledging any academic commentary to the contrary), the Gentry court ends its analysis with this concluding paragraph:
In In re Elwood, we held that Booker may not apply retroactively to cases on collateral review for purposes of a successive § 2255 motion. Elwood, 408 F.3d 211 (5th Cir. 2005). Now, we join the several courts of appeals that have held that Booker does not apply retroactively to initial § 2255 motions. Because we hold that Booker does not apply retroactively to Gentry's motion, Appellant's motion fails.
A final footnote in Gentry cites to similar decisions from the 2d, 3d, 6th, 7th and 11th Circuits. I also believe that the 4th, 8th, 9th and 10th Circuits have also formally rejected claims for Booker retroactivity. I wonder how much longer we will have to wait for the last non-retroactivity shoes to drop from the 1st and DC Circuits.
Eighth Circuit speaks to post-Booker reliance on hearsay at sentencing
I see on this official opinion page that the Eighth Circuit has released another large bunch of criminal case rulings today. As always, I hope readers might point me to any particularly noteworthy sentencing aspects of these decisions. One case that caught my eye was US v. Brown, No. 05-1387 (8th Cir. Dec. 9, 2005) (available here), in which the court had this to say about the use of hearsay at sentencing:
We reject Brown's argument that in light of Booker, the district court erred in relying on hearsay testimony in support of the § 2K2.1(b)(5) enhancement. "In determining the appropriate guidelines sentencing range to be considered as a factor under § 3553(a), we see nothing in Booker that would require the court to determine the sentence in any manner other than the way the sentence would have been determined pre-Booker." United States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005). Specifically, Booker "provide[s] no basis to question prior . . . decisions that expressly approved the consideration of out-of-court statements at sentencing." United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005); see also United States v. Luciano, 414 F.3d 174, 179 (1st Cir 2005) (Booker did not alter "view that there is no Sixth Amendment right to confront witnesses during the sentencing phase").
We also note that courts have held that Crawford v. Washington, 541 U.S. 36 (2004), in which the Supreme Court held that admission of testimonial hearsay at trial violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant, "does not alter the pre- Crawford law that the admission of hearsay testimony at sentencing does not violate confrontation rights." United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005)....
In addition, contrary to Brown's standard-of-proof argument, "[n]othing in Booker suggests that sentencing judges are required to find sentence-enhancing facts beyond a reasonable doubt under the advisory Guidelines regime." United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005).
December 8, 2005
Pondering Tookie's fate, Schwarzenegger's dilemma and punishment theory
Thanks to this post at TalkLeft, I saw this effective article from Newsweek discussing California Governor Arnold Schwarzenegger's "difficult political and humanitarian choices in the battle over clemency for convicted killer Tookie Williams." (As detailed in this AP story, Schwarzenegger met with defense lawyers and prosecutors today, and "Schwarzenegger's aides have said the governor could make his decision over the weekend or wait as late as Monday.")
As I have thought about the case and read a broad range of commentaries (many of which are linked below), I am struck by the fact that it is not clear how either of the traditional theories of punishment cut when it comes to the clemency decision facing Schwarzenegger. To put the debate in the most simplified terms, one could readily say that, from a retributivist perspective, Williams' crime was blameworthy enough to merit the death penalty and thus his execution should not be stopped. However, one could also say that, by virtue of his work over the last two decades, he is no longer one of the "worst of the worst" and thus no longer deserves to die. Similarly, if one were to adopt a utilitarian perspective, one could reasonably claim that better consequences would flow from carrying out his death sentence or that better consequences would flow from a grant of clemency.
Of course, as is true in all of the most interesting criminal justice debates, many arguments made on both sides of the case involve a mix of traditional retributivist and utilitarian arguments, along with some other theoretical ideas (like educative and expressive concerns). In addition to adding to the drama in the build up to Schwarzenegger's decision, these theoretical realities also have me very interested to see how Schwarzenegger frames and defends whatever decision he makes.
- December dramas for the death penalty
- Talking Tookie (includes link to clemency petition)
- Talking more Tookie (includes link to filing opposing clemency)
- Still more buzz about executing Tookie
- Timely article about executive clemency
- Clemency in Virginia delays execution 1000
- More thoughtful commentary on clemency and the Williams case
- Competing op-eds on Tookie and clemency
UPDATE: Shavar Jeffries over at blackprof.com now has this interesting post entitled "Clemency for Tookie and Utilitarianism." In addition, TalkLeft has more Tookie coverage here and indicates we might get a decision from Gov. Schwarzenegger by late Friday. And here is another good press piece on the clemency issue presented to the Governor.
ANOTHER UPDATE: Dan Markel now has this Findlaw guest column today about clemency, Tookie Williams, and the death penalty. My sense is that Dan's arguments reflect a number of interesting (and contestable) claims based in retributivism.
A different view on state-federal sentencing disparity
As discussed in this prior post, some defendants post-Booker are seeking reduced federal sentences by highlighting that they would have received much lower sentences if prosecuted for their crimes in state court. But this story from Hawaii, entitled "State far outpaces feds in embezzling sentence," provides a different perspective on the issue of state-federal sentencing disparity. Here are the lead paragraphs:
"Never steal anything small," James Cagney's immoral character croons in the opening credits of the 1959 musical of the same name. The case of a convicted criminal from Pearl City seems to back him up.
Dennis H. Hieda, who once wrote to a judge that he always thought "money was power and a way of having friends," was sentenced yesterday to 10 years in state prison for embezzling $24,000. The sentence was four times longer than the 2 1/2 years in federal prison that he received last month for embezzling more than $500,000.
Tenth Circuit addresses Booker and fast-track issues
Late yesterday, the Tenth Circuit issued an important opinion addressing disparities created by fast-track program in US v. Morales-Chaires , No. 05-1190 (10th Cir. Dec. 7, 2005) (available here). The issue arose after the defendant, sentenced post-Booker, was given a guideline sentence and then argued on appeal simply that "the court erred in sentencing him to a longer sentence than he would have received had he been prosecuted in a fast-track jurisdiction." After a long and thoughtful discussion, the court in Morales-Chaires came to this nuanced (and unsatisfying?) conclusion:
We conclude that, in this particular case, we need not resolve whether sentencing disparities caused by the existence of fast-track programs in some jurisdictions are or are not, or may be in certain circumstances, considered unwarranted under § 3553(a)(6). Section 3553(a)(6)'s directive to sentencing courts to avoid "unwarranted sentencing disparities among defendant with similar records who have been found guilty of similar conduct" is but one of several factors for a court to consider in determining a reasonable sentence. As indicated, the court in this case carefully reviewed all the factors listed in § 3553(a), including § 3553(a)(6), and concluded that they fully supported the sentence imposed. Even one of the courts which recognized that sentencing disparities caused by fast-track programs could justify a lower sentence concluded that the other factors in § 3553(a) may preclude such a result: "I would have imposed a below-guideline sentence based in part on fast-track disparity if the other § 3553(a) factors had not weighed against such a sentence." Peralta-Espinoza, 383 F. Supp. 2d at 1112; cf. Medrano-Duran, 386 F. Supp. 2d at 948-49 (court reduced defendant's advisory Guideline range by three levels, in part because of unwarranted disparity caused by fast track programs but also because other factors —defendant's "youth, the fact that he had no prior illegal re-entry offenses, and the fact that he committed no other crimes following his return to this country" — suggested leniency). We therefore conclude that Morales-Chaires seventy-seven month sentence is reasonable.
Interesting Second Circuit ruling on use of unadjudicated juvenile conduct
On the heels of its recent Vaughn ruling approving the use of acquitted conduct in post-Booker sentencings, yesterday the Second Circuit in US v. Phillips, No. 04-2166 (2d Cir. Dec. 7, 2005) (available here), approved the use at sentencing of unadjudicated juvenile conduct. The legal setting in Phillips concerns the application of an enhancement under guideline § 4B1.5(b) for "a pattern of activity involving prohibited sexual conduct." Here is the start of the discussion section of the court's opinion:
Phillips raises two objections to the five-level enhancement under U.S.S.G. § 4B1.5(b): (1) that the enhancement for an offender engaged in a pattern of sexual exploitation of minors cannot be based on unadjudicated juvenile conduct; and (2) that the district court made insufficient factual findings to support the enhancement. Reviewing the district court's interpretation of the Sentencing Guidelines de novo and its findings of fact for clear error, we conclude that unadjudicated juvenile conduct may be properly considered under § 4B1.5(b), but that the district court's factual findings were insufficient.
December 7, 2005
Accounts of SCOTUS arguments in Guzek and Marsh
As previous noted here, the Supreme Court on Wednesday heard arguments in two capital cases, Oregon v. Guzek and Kansas v. Marsh. This AP account provides snippets of the arguments in both cases, and Lyle Denniston has a thorough report here at SCOTUSblog concerning the Marsh argument. I suspect both cases could be close votes.
UPDATE: Howard at How Appealing has collected here some of the morning newspaper coverage of the arguments in Guzek and Marsh.
NJ Commission releases major report on drug-free zones
As previewed here last week, the New Jersey Commission to Review Criminal Sentencing today released an important report with powerful recommendations urging reforms to the state's drug sentencing laws and particular its laws creating "drug-free zones." The full report can be accessed here, and below are excerpts from a press release about the report (which includes portions of the report's executive summary):
New Jersey's "Drug Free Zone" laws are not as effective as they could be in protecting children and others from the dangers of the illegal drug trade, according to a 40-page report issued today by the New Jersey Commission to Review Criminal Sentencing. In addition, minorities are far more likely to be arrested and convicted under these laws and therefore sentenced to longer terms of imprisonment than their white suburban and rural counterparts.....
- The "urban effect" of the drug free zone laws significantly increases the likelihood that a drug distribution offense will occur within a drug free school zone in urban areas; minorities, who currently comprise a greater proportion of urban populations than rural and suburban populations, are therefore far more likely to be charged with a drug free zone offense and subjected to harsher punishment upon conviction.
- The end result of this cumulative "urban effect" of the drug free zone laws is that nearly every offender (96%) convicted and incarcerated for a drug free zone offense in New Jersey is either Black or Hispanic.
- The "urban effect" greatly undermines the school zone law's effectiveness in protecting school children: the enormous, unbroken swaths created by the overlapping zones have in fact diluted the special protection of schools that the law was specifically intended to facilitate.
A fascinating report on a Booker crack/cocaine oral argument
The First Circuit heard argument today in the consolidated cases of US v. Pho and US v. Lewis, which are appeals by the government from sentencing decisions by District Judge Torres in which he decided not to follow the guidelines 100:1 crack/powder ratio. (Background on how Rhode Island became "ground zero" in the post-Booker debate over the sentencing disparity between crack and powder cocaine appears in this post, and more background on these cases and these issues can be found here and here and here.)
Though an audio file with the argument may be available tomorrow, I am pleased to be able to report on the case today thanks to the fine work of Yale Law student Eric Citron. (Eric said I could describe him as an "avid blog follower" or "sentencing junky," and he backed up these claims by noting that he voted for me in the Weblog Awards.) Eric was at the oral argument, and he kindly wrote up a short account of what transpired. His full, terrific, on-the-scene report can be downloaded below. Here is his closing paragraph:
To sum up, all odds are with the government to win. Near the end of the argument, Judge Selya noted that while the SRA does demand that Judges reduce unwarranted disparity in sentences, "whether apples are being compared to apples, with respect to the issue of disparity, is in the first instance a matter for Congress and not for the courts." Given this statement, I would expect a holding that while Judge Torres is to be commended for his conscientious weighing of the factors for and against the 100:1 ratio, the congressional determination is entitled to a great deal more deference than his actions showed. Exactly how much more deference? That should be the hard part.
Interesting sentencing work in tax terrorism case
Yesterday, the Tenth Circuit issued an interesting opinion in an interesting "tax terrorism" case, US v. Dowell, No. 03-1341 (10th Cir. Dec. 6, 2005) (available here). The defendant in Dowell participated in a "plan to set fire to the Colorado Springs office of the Internal Revenue Service ... along with several members of his 'constitutional law group.'" The facts alone make Dowell a fascinating read: the defendant apparently served as a lookout while other members of this "constitutional law group" broke into IRS offices, torched all the files, and "painted the letters AAR several places in the building, [which] stood for Army of the American Republic." (Adding to the intrigue, one jury ultimately acquitted one of the "tax terrorists" who broke into the IRS offices, while another jury convicted the apparent ring-leader and he was sentenced to 400 months in prison.)
I call the defendants tax terrorists because the main sentencing issue in Dowell concerns not only Blakely and Booker, but also the application of the federal guidelines' terrorism enhancement in § 3A1.4. Though sentenced before Blakely, Dowell raised claims that were "sufficient to preserve his Booker arguments." Nevertheless, despite the Government's concession "that the district court's application of the terrorism enhancement violated the Sixth Amendment and warrants resentencing," the 10th Circuit affirms the application of the terrorism enhancement and the defendant's 30-year sentence based on its "own independent review of the record."
The 10th Circuit's "independent review" leads to an interesting interpretation of the particulars of guidelines' terrorism enhancement in § 3A1.4 (which in turn enable the Dowell court to conclude that the defendant was not sentenced unconstitutionally). In reviewing the court's application of § 3A1.4, I could not help but think about whether that provision would have been applicable in a more renown case of tax opposition that took place one December night 232 years ago.
Counterpoint on Alito and the death penalty
A few weeks ago, Berkeley law prof Goodwin Liu wrote an LA Times commentary that was highly critical of the work of Judge Sam Alito in capital cases during his tenure as a Third Circuit judge. This morning (on a day in which SCOTUS is hearing two capital cases), George Mason law prof Horace Cooper has this responsive commentary over at Townhall.com. Examining the same cases that Liu criticized, Cooper concludes that they may simply reveal that Alito "is unwilling to join in the national campaign by elites to water down or erode the administration of capital punishment."
Along with extensive coverage of the death penalty at this archive, below are linked prior posts exploring Alito and the death penalty:
- Alito and the death penalty
- Alito and Feingold discuss the death penalty
- More on Alito the prosecutor and Alito on the death penalty
- Still more on Alito and the death penalty
The distinctive (and disturbing) procedural posture of Guzek and Marsh
Continuing this month of death dramas, on Wednesday the Supreme Court will hear arguments in two capital cases, Oregon v. Guzek and Kansas v. Marsh. The great descriptions of these cases over at SCOTUSblog (here and here) spotlight not only the interesting substantive issues, but also the distinctive and disturbing procedural posture of the cases before the High Court. In each case, a state supreme court overturned a state death sentence, possibly on state law grounds; it is not clear SCOTUS should reach the substantive merits in either case.
As detailed in many prior posts (some of which are linked below), I am troubled by how much of the Court's limited docket is devoted to capital cases. But I ultimately can understand why the Court might want to ensure, in cases like Miller-El or Penry, that potentially hinky death sentences are carefully scrutinized. But in both Guzek and Marsh, the Court is taking up cases in which a state court decided to overturn a state death sentence: is it really a matter of great national concern, justifying Supreme Court attention, that some state courts may be scrutinizing their own state death sentences too carefully?
The Supreme Court's decision to get involved in in Guzek and Marsh inevitably extends the litigation in these cases. As I understand Guzek, not only has the defendant's death sentence already been vacated and remanded for re-sentencing four times(!), but even a US Supreme Court ruling for the prosecution would not eliminate the necessity of re-sentencing the defendant yet again. There has got to be a better way.
- A capital waste of time?
- Deeper thoughts on Marsh and sentencing burdens of proof
- More death and habeas from SCOTUS
- The same ole story from SCOTUS
- A capital term for SCOTUS
- Shackled to a jurisprudence
- Roberts, the cert pool, and sentencing jurisprudence
December 6, 2005
Around the blogosphere
Lots of interesting sentencing stuff around the blogosphere:
- SCOTUSblog has great previews of the two capital cases the Supreme Court will be hearing tomorrow, Oregon v. Guzek (No. 04–928) and Kansas v. Marsh (No. 04–1170).
- Grits for Breakfast has this fascinating post discussing "allegations that the Denton County District Attorney's office traded lenient sentences in exchange for uncontested asset forfeiture cases against drug dealers."
- TalkLeft discusses here a case in which Miami cop "turned down a plea offer with probation and no jail time on charges he had sex with a 14 year old enrolled in a police teen program" and then, after being "convicted of three counts of lewd and lascivious conduct on a child," was sentenced "to 20 years in prison to be followed by 15 years of probation."
- And, thanks to How Appealing, I see that the AP has this article discussing capital clemency and the Tookie Williams case.
A reasonableness two for Tuesday from the 7th Circuit
The Seventh Circuit today released two decisions which expound upon the meaning and nature of reasonableness review and also upon what the Circuit expects of its district courts in post-Booker sentencing:
In US v. Bokhari, No. 05-1302 (7th Cir. Dec. 6, 2005) (available here), the Seventh Circuit faults the district court for not doing a precise and complete guideline calculation:
Simply put, the sentencing record here lacks sufficient clarity for this court to determine how — or if — the district court made final rulings on the defendants' objections to the PSR, much less the district court's methodology and final determinations pertaining to total offense level under the Guidelines. This is not a mere academic exercise. Without specific information pertaining to the district court's calculation of the total offense level, we cannot determine whether the sentence falls within the Guidelines range (and therefore is entitled to a presumption of reasonableness) or whether it falls outside of the recommended range (and therefore requires sufficient additional reasoning from the district court).
In US v. Lopez, No. 05-2432 (7th Cir. Dec. 6, 2005) (available here), the Seventh Circuit rejects the defendant's claim that a sentence is unreasonable just because the final PSR calculation of the guideline range differed from what appeared in the plea agreement:
Lopez argues that his sentence is excessive because a sentence within the guideline range found in the original plea agreement would have been sufficient to achieve the goals of 18 U.S.C. § 3553(a)(2). It is not relevant to this Court's review whether the sentence found in the plea agreement calculation would also have been reasonable.
The role of this Court is not to choose between possible sentences, but rather to review the reasonableness of the sentence imposed by the district court. The sentence imposed in this case was within the advisory range of the sentencing guidelines, based upon the factors in section 3553(a), and reflects significant consideration of the competing goals of sentencing. After a thorough discussion of the sentencing factors, the district court found that the guidelines captured the appropriate penalty in this case. By sentencing Lopez to the lowest sentence within the guideline range, the district court properly balanced its desire to avoid unreasonably prolonged incarceration, while recognizing the seriousness of the offenses committed. The sentence imposed by the district court was reasonable.
Interesting state case approving use of acquitted conduct at sentencing
In this post last week, I questioned a Second Circuit ruling that approved reliance on acquitted conduct in post-Booker sentencings. A helpful reader today pointed me to an interesting state decision from the Missouri Court of Appeals today that likewise upholds the use of acquitted conduct at sentencing.
Today's decision, Missouri v. Clark, No. ED84783 (Mo. App. Dec. 6, 2005) (available here), presents the acquitted conduct issue in a slightly different context than it often arises in the federal system. First, Missouri is a state with jury sentencing, so the issue was whether it was proper for the sentencing jury to hear acquitted conduct evidence. Second, the acquitted conduct at issue in Clark concerned past charges and acquittals, not conduct that produced an acquittal on some counts in the defendant's most recent trial. But these differences were not central to the state court's decision that, in light of the Supreme Court's Watts decision, "the State was not precluded from introducing evidence of Clark's prior acquittals during the penalty phase of the trial." Here is the official summary of the Clark decision:
The trial court did not abuse its discretion when it allowed the state to introduce evidence of acquitted crimes during the sentencing phase of the trial. A jury's verdict of acquittal does not prevent the court, in the sentencing phase of the trial, from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.
Just another day of federal sentencings
It is never hard to get excited about sentencing issues because the facts of so many cases are fascinating (and, of course, often very sad). Consider these stories about federal sentencings that took place on Monday:
- This article reports on the sentencing of "a former high-ranking official with the Boy Scouts of America" who was given "eight years in federal prison ... for possessing hundreds of images and videos depicting children in sexually explicit acts."
- This article reports on the sentencing of a "former investment manager who admitted stealing about $30 million from investors" and was given "just over 11 years in prison after his victims blasted him for betraying their trust and ravaging their lives." Interestingly, not only did the sentencing judge also order the defendant "to pay $31.7 million in restitution," he also ordered "a transcript of victims' remarks be kept in [the defendant's] prison cell while he serves his sentence, and later, in his home during three years of supervised release."
- This article reports on the sentencing of the "mastermind of an arson spree that did $10 million damage in a development under construction outside Washington" who was given "19 years and seven months, the maximum allowed under federal sentencing guidelines [and was] also ordered to pay victims more than $3.2 million in restitution."
UPDATE: Here are more interesting stories about more federal sentencings that took place on Monday:
- This article reports on the sentencing of a former "school district employee arrested earlier this year after he had child pornography videos mailed to his home" who was given "six-and-a-half years in prison."
- This article reports on the sentencing of an "admitted drug dealer ensnared in an international Ecstasy ring" who was given "15½ years in prison."
December 5, 2005
A BCS for blogs?
Thanks to this post at Law Dork, I see that I have the honor of being in great company as a nominee in the 2005 Weblog Awards for Best Law Blog. As the cliche goes, it is an honor just to be nominated. But even more fun is nit-picking notable aspects of (and omissions from) the list of 15 nominees.
Of course, I am very proud that Law Dork (an OSU law alum) apparently has the distinction of being the youngest nominee, and also that, with the inclusion of TaxProf Blog, two members of the Law Professors Blog Network made the grade. But Chris notes the interesting righty slant of the slate of nominees, and I also see some questionable selections. BeldarBlog, which has been quiet for nearly two months now, garners a nomination, while all the great work recently at blogs like Concurring Opinions and Crime & Federalism and PrawfsBlawg goes unrecognized.
Seems to me we need some new nomination metric which incorporates factors like regularity of posts. Then again, if some sort of BCS system for blogs were to include a measure of total output, Howard Bashman at How Appealing would blow us all away.
More proof that prosecutorial discretion produces the biggest sentencing disparities
I might need to stop reading federal circuit opinions, because lately they are driving me batty: if it's not sloppy post-Booker legal work (as in recent opinions from the 2d and 7th and 8th Circuits), then it's the deeper potential injustices in the sentencing system evidenced by cases like US v. Burke, No. 04-60973 (5th Cir. Dec. 2, 2005) (available here).
Burke rejects various challenges to a 96-month sentencing following a plea to "attempt to commit extortion under color of official right." My dander is up because the defendant apparently was involved in a massive cocaine conspiracy (involving 350 kilograms) and used his position as a city alderman "to assist the police escort of drugs through his city." Nevertheless, unlike the defendant in the recent Cannon case, who received a mandatory life sentence for a relatively minor drug offense, the defendant in Burke managed to work out "a plea agreement providing that the court would not sentence Burke to more than ten years' imprisonment."
Of course, I am sure reasonable(?) factors influenced the federal prosecutor in Burke to cut a deal capping the defendant's sentence, and I do not like to second-guess discretionary judgments without full information. The broader point, however, is that these sorts of discretionary judgments by prosecutors are typically hidden from view and not subject to review (at least publically). And yet, Justice Department officials and some members of Congress always seem eager to second-guess discretionary judgments by sentencing judges, even though these decision are more open and subject to review by appellate courts. Cases like Burke highlight why, as the US Sentencing Commission suggested in its 15-year report, plea bargaining and other forms of prosecutorial discretion likely introduce more disparity into the federal sentencing system than the exercise of judicial discretion ever could.
- A window into charge bargaining dynamics
- Why the federal system is not worth saving from Apprendi-land
- Should we (and could we) require prosecutors to explain plea deals?
UPDATE: To further expand the disparity discussion around Burke, also consider this post at TalkLeft discussing a state case from Florida in which a teenager apparently received a 10-year sentence for stealing a six-pack of beer.
December 5, 2005 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Where is the reasonableness review?
Late last week I was complaining here about the Seventh Circuit's sloppy discussions of post-Booker legal standards, and now I have to bemoan the Booker work of the Eighth Circuit after seeing US v. Smith, No. 03-2862 (8th Cir. Dec. 5, 2005) (available here). Smith is a case that the Supreme Court GVRed back to the Eighth Circuit, and the Eighth Circuit now holds (1) that the defendant did not preserve his claimed Sixth Amendment error under Booker (despite pre-Blakely making a sufficiency challenge to the evidence at sentencing and a pro se brief citing Apprendi), and (2) that he has not shown plain error in the sentence imposed.
In part because a very long sentence was based on contested judicial findings of drug quantity, I think Smith is shaky on its merits. But I am especially troubled that the Smith decision has no discussion whatsoever of reasonableness even though, according to the opinion, "Smith asserts that ... his sentence as imposed is unreasonable." I suspect that the Eighth Circuit would (did?) find Smith's sentence to be reasonable; but, given that he received a sentence of nearly 35 years for a drug offense, it seems that the Eighth Circuit at least ought to mention the ultimate standard that the Booker court said is now the test for appellate review of federal sentences.
UPDATE: In a similar vein, today the 11th Circuit in US v. Caldwell, No. 05-12640 (11th Cir. Dec. 5, 2005) (available here), discusses a lot of interesting sentencing issues, but never discusses the reasonableness of a year-long sentence for the defendant's illegal "possession of his brother sporting rifle." In Caldwell, however, it does not appear that the defendant argued that his sentence was unreasonable.
Not much sentencing in today's SCOTUS work
The Supreme Court's order list this morning, which is available here, does not have much for sentencing fanatics. Lyle Denniston at SCOTUSblog details in this post that cert. was granted only in two cases, including one intriguing criminal case, Clark v. Arizona (05-5966), exploring the "constitutional duty of states to allow evidence of insanity to be used as a defense in criminal cases."
The order list does not have any Booker GVRs; it does have a lot of cert denieds that appear to be criminal cases. I wonder if anyone keeps a count on how many criminal case cert petitions are denied each term. (My guess is that Blakely and Booker have (significantly?) increased the number of petitions and denials.)
Interestingly, missing yet again from the order list the Gomez case from Tennessee (background in this post). As shown from this docket sheet, Gomez was conferenced for a second time last Friday. The lack of action again in Gomez adds still more 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. It also leads me to this question: could a summary reversal be in the works in Gomez?
Debating religion and the death penalty
The Baltimore Sun this morning has this interesting article, entitled "Faithful split on death penalty," which details that, as a scheduled execution approaches in Maryland, "the religious are lining up on both sides of the capital punishment debate." As detailed in the posts linked below, I always find the intersection of religion and criminal justice issues very interesting:
- Sentencing and religion
- Religion, sentencing and corrections
- Sister Prejean powerful perspective
- New resource examining religion and the death penalty
- Meth, mandatories and moral values
- Is there a "new right" on criminal sentencing issues?
- Miers, religion, and criminal justice issues
Tough sentences for downloading the wrong porn
This morning, the Louisville Courier-Journal has this interesting article, "Cracking down on child porn," which details the lengthy sentences defendants are now to receive under the federal guidelines for downloading illegal pornography. The story focuses on a young, married, college graduate facing over 17 years imprisonment because of his huge collection of child pornography on his home computer. The article also includes this interesting discussion of federal sentencing in these cases:
Under 2003 legislation known as the PROTECT Act, Congress increased federal penalties for child-pornography offenders, including a mandatory five-year sentence for receiving or distributing it through the Internet. The U.S. Sentencing Commission, which advises federal courts, has increased advisory prison terms twice since the legislation passed. Sentences increase dramatically based on the number and types of images involved, and if children younger than 12 are depicted.
Judges almost always follow the guidelines, according to a commission report requested by Chief U.S. District Judge John G. Heyburn.... Of 25 federal child-pornography offenders affected by the 2004 guidelines and sentenced this year through September, judges deviated from prosecutors' recommendations and imposed sentences shorter than the guideline in only three cases.
December 4, 2005
A more formal request for more post-Booker data
A few months ago, I created this Booker data wish list to detail types of additional data I believe are needed in order to get a more complete view of post-Booker federal sentencing. And, as detailed in this post, a consistent theme at last month's terrific event, "The Booker Project : The Future of Federal Sentencing," 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.
In order to make a more formal case for more data, my research assistant and I sent a letter to the USSC which details exactly what additional data seem to us most critical for assessing Booker's impact on the federal sentencing system. That letter, which can be downloaded below, starts this way:
We write to laud the United States Sentencing Commission for providing timely post-Booker data on federal sentencing, and also to respectfully suggest that some additional data are critical for assessing Booker's impact on the federal sentencing system. The Commission's post-Booker work to date, especially its monthly release of data from the "Special Post-Booker Coding Project," has provided an important foundation for understanding Booker's impact. But, with the one-year anniversary of Booker approaching, it is now critical for the Commission to build on this foundation.
Case highlights from busy sentencing times
As detailed at this archive, death penalty developments have captured plenty of attention lately. But true sentencing fans should be sure not to overlook all the notable recent non-capital sentencing rulings. I've linked some recent highlights below:
- Booker discussion topic: are departures obsolete?
- Second Circuit upholds sentencing based on acquitted conduct
- Eleventh Circuit opines at length about post-Booker sentencing and review
- Wisdom from Judge Carnes on post-Booker appellate review
- Important 11th Circuit ruling on Booker harmless error
- Eighth Circuit discusses reasonableness of crack/powder differential
- Minnesota Supreme Court limits reach of "prior conviction" exception
- Seventh Circuit enforces mandatory life sentence in drug case
- Major Minnesota Blakely ruling
Competing op-eds on Tookie and clemency
Though I noted here a number of major death penalty article in Friday's papers, I missed two interesting op-eds which discuss capital clemency and the Stanley "Tookie" Williams case: providing (tepid?) support for grant Tookie clemency is Mark Essig, writing "Clemency for a Crip?" in the New York Times; providing (tepid?) opposition to granting Tookie clemency is Eugene Robinson, writing "No Special Break for Tookie" in the Washington Post.
Providing more competing op-ed views, the Los Angeles Times today has pieces from Joshua Marquis, vice president of the National District Attorneys Association, who argues "He's a murderer. He should die.", and from Charles L. Lindner, past president of the Los Angeles Criminal Bar Association, who argues "Governor, let Tookie live."
Background on the case and Williams' life and pending death are available at this recent AP story. For more, also see these related posts:
- December dramas for the death penalty
- Talking Tookie (includes link to clemency petition)
- Talking more Tookie (includes link to filing opposing clemency)
- Still more buzz about executing Tookie
- Timely article about executive clemency
- Clemency in Virginia delays execution 1000
- More thoughtful commentary on clemency and the Williams case