December 6, 2005
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