February 2, 2005
Thoughts on regulating prosecutorial discretion
One of the many amazing lines in Judge Batallion's amazing Huerta-Rodriguez opinion (basics here) was the statement that "[i]n this court's experience, the Department of Justice does not always 'charge and pursue the most readily provable' (beyond a reasonable doubt) crime, especially in drug prosecutions, with the result of introducing more disparity in the system." This assertion is especially interesting against the backdrop of the recent Comey memo (available here) which seeks to reiterate the prosecutorial obligation to pursue the most serious readily provable offense. It also brings to mind the finding of the US Sentencing Commission in its 15-year report that "significant evidence" suggests that "presentencing stages, such as charging and plea negotiation, ... introduce disparity in sentencing." (The full USSC 15-year report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)
Of course, those of us in the ivory tower have long spotlighted that the inevitability and non-transparency of the exercise of prosecutorial discretion may be the Achilles Heel of efforts to control sentencing disparities. Helpfully, today I can report on two thoughtful efforts from the ivory tower to highlight possible ways to regulate the exercise of prosecutorial discretion.
First, my casebook co-author Ron Wright has posted a draft article on SSRN (which is to be published in the Columbia Law Review and flows from this recent conference) entitled "Sentencing Commissions as Provocateurs of Prosecutor Self-Regulation." The article's abstract and a download link is available here. As the abstract explains, Ron's article examines "potential efforts by sentencing commissions to influence the work of prosecutors, especially the charges they select and the plea bargains they enter."
Second, frequent FSR and blog contributor Mark Osler has written a piece for an upcoming symposium at Valparaiso Law School entitled "This Changes Everything: A Call For A Directive, Goal-Oriented Principle to Guide the Exercise of Discretion by Federal Prosecutors." As Mark explains, the piece "recognizes the problem over-broad prosecutorial discretion in the federal system and proposes a solution: That the Attorney General direct federal prosecutors to make discretionary choices from a single guiding principle." Specifically, Mark's article, which can be downloaded below, suggests "that all discretionary choices be made with the conscious goal of reducing crime by focusing on the 'key men' amongst defendants, defining the key man as either a member of a crime network with special skills or a recidivist who poses a future danger."
Today's Booker blogsphere buzz
The blogsphere is buzzing with all sorts of interesting Booker talk, which is not surprising since today is now, by my declaration, the best post-Booker day ever. (Faithful readers will recall from this post that I am a big fan of Richard Scarry and all of his best ever books.) Here is what I have seen on various topics:
- Concerning the Comey memo setting out DOJ's post-Booker policies (detailed here), Ellen Podgor at White Collar Crime Prof Blog has this insightful post with pointed comments about the attached "Booker Sentencing Report Form." In addition, David Porter at the Ninth Circuit Blog provides his take on the memo here.
- Concerning the due process/ex post facto issues surrounding a post-Booker sentence increase based on pre-Booker conduct (an issue previously covered in posts here and here), the Ninth Circuit Blog has posted here an insightful portion of a brief discussing these important matters.
- Concerning some of the work of the circuit courts today, the blog Appellate Law & Practice has this post on Crosby (basics here) from the Second Circuit and this post on Oliver (basics here) from the Sixth Circuit.
The 2d Circuit speaks on Booker!
When it rains it pours: the Second Circuit has jumped into the Booker fray today with decisions in US v. Crosby, 03-1675 (2d Cir. Feb. 2, 2005) (available here), and US v. Fleming, 04-1817 (2d Cir. Feb. 2, 2005) (available here). It seems Crosby is the really big decision (though Fleming involved an affirmance), and together they provide 53 more pages of circuit court wisdom on Booker.
Seeing that both were written by my former boss Judge Jon O. Newman, and that they aspire to cover a lot of ground post Booker ground, I think it is time to declare today the biggest post-Booker day to date. To whet your appetite as you check the toner on your printers, here's the set up of Crosby:
[W]e believe that in the aftermath of a momentous decision like Booker/Fanfan, which will affect a large number of cases confronting the district judges of this Circuit almost daily, it is appropriate for us to explain the larger framework within which we decide this appeal.
And here is Crosby's very useful summary of the state of federal sentencing (at least in the Second Circuit) after Booker:
[W]e can identify several essential aspects of Booker/Fanfan that concern the selection of sentences. First, the Guidelines are no longer mandatory. Second, the sentencing judge must consider the Guidelines and all of the other factors listed in section 3553(a). Third, consideration of the Guidelines will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Fourth, the sentencing judge should decide, after considering the Guidelines and all the other factors set forth in section 3553(a), whether (I) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence. Fifth, the sentencing judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence.
These principles change the Guidelines from being mandatory to being advisory, but it is important to bear in mind that Booker/Fanfan and section 3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge. Thus, it would be a mistake to think that, after Booker/Fanfan, district judges may return to the sentencing regime that existed before 1987 and exercise unfettered discretion to select any sentence within the applicable statutory maximum and minimum. On the contrary, the Supreme Court expects sentencing judges faithfully to discharge their statutory obligation to "consider" the Guidelines and all of the other factors listed in section 3553(a). We have every confidence that the judges of this Circuit will do so, and that the resulting sentences will continue to substantially reduce unwarranted disparities while now achieving somewhat more individualized justice. In short, there need be no "fear of judging."
Hearing the sweet sounds of Booker
Right after Booker was handed down, I joked in this post that Justice Ginsburg must have been listening to The Who in chambers because the lyrics to Won't Get Fooled Again captured the essence of the Booker decision. Picking up the musical theme, Marc Fernich and Debra Karlstein ask at the outset of their review of Booker developments whether Booker is "David Byrne's 'same as it ever was'? Or Bob Dylan's 'revolution in the air'?"
The (iPod-inspired) article by Fernich and Karlstein is formally entitled "United States v. Booker: Miracle or Mirage?" and it is available for download below. The article provides not only an overview of Booker basics, but also an amazingly up-to-the minute review of all the post-Booker federal court rulings. (Even today's 7th Circuit's decision on retroactivity is included.) As the authors explain, the article "explores some of Booker's conflicting legal implications and offers tips for effectively negotiating them."
UPDATE: Marc Fernich and Debra Karlstein have delivered an updated version of their piece incorporating some of the latest cases through Feb. 3. Here it is:
The 7th Circuit speaks on retroactivity!!
With thanks to readers, I now have news that the Seventh Circuit has spoken directly to the issue of Booker's retroactivity in McReynolds v. US, 04-2520 (7th Cir. Feb. 2, 2005) (available here), and many prisoners are not going to like the news. In an opinion authored by Judge Easterbrook, the Seventh Circuit says Booker is not to be applied retroactively to cases which became final (meaning all direct appeals were concluded) before January 12, 2005. Here's some of the key language:
Although the Supreme Court did not address the retroactivity question in Booker, its decision in Schriro v. Summerlin, 124 S. Ct. 2519 (2004), is all but conclusive on the point. Summerlin held that Ring v. Arizona, 536 U.S. 584 (2002) — which, like Booker, applied Apprendi's principles to a particular subject — is not retroactive on collateral review....
We held in Curtis v. United States, 294 F.3d 841, 843 (7th Cir. 2002), that Apprendi does not apply retroactively on collateral review, because it "is concerned with the identity of the decisionmaker, and the quantum of evidence required for a sentence, rather than with what primary conduct is unlawful". That, too, is equally true of Booker. No conduct that was forbidden before Booker is permitted today; no maximum available sentence has been reduced....
The remedial portion of Booker drives the point home.... District judges must continue to follow their approach as guidelines, with appellate review to determine whether that task has been carried out reasonably. No primary conduct has been made lawful, and none of the many factors that affect sentences under the Sentencing Guidelines has been declared invalid....
What is more, Booker does not in the end move any decision from judge to jury, or change the burden of persuasion. The remedial portion of Booker held that decisions about sentencing factors will continue to be made by judges, on the preponderance of the evidence, an approach that comports with the sixth amendment so long as the guideline system has some flexibility in application. As a practical matter, then, petitioners' sentences would be determined in the same way if they were sentenced today; the only change would be the degree of flexibility judges would enjoy in applying the guideline system. That is not a "watershed" change that fundamentally improves the accuracy of the criminal process.
We conclude, then, that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005. That date, rather than June 24, 2004, on which Blakely v. Washington, 124 S. Ct. 2531 (2004), came down, is the appropriate dividing line; Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system.
DOJ's post-Booker memo to line prosecutors
I noted in this post yesterday that I had heard that Main Justice had sent a memorandum to all federal prosecutors setting out DOJ's policies and procedures in the wake of Booker. Today in the Wall Street Journal, Laurie Cohen has this thoughtful article (subscription required) discussing the January 28 memorandum from Deputy Attorney General James Comey to all federal prosecutors entitled "Department Policies and Procedures Concerning Sentencing." Since the WSJ is now the paper of record, I can follow-up by providing the full memo for downloading below.
This Jan. 28 Comey memo is a short but interesting read for a number of reasons. It asserts that federal prosecutors "must actively seek sentences within the range established by the Sentencing Guidelines in all but extraordinary cases" and explains that the Solicitor General will ensure DOJ "takes consistent and judicious positions in pursuing sentencing appeals." Also, as stressed in the WSJ article, the memo notes that the Executive Office of US Attorneys is "distributing instructions for reporting (1) sentences outside the appropriate Sentencing Guideline range, and (2) cases in which the district court failed to calculate a Guideline range before imposing an unreasonable sentence."
I would be interested in reader comments on all aspects of this memo. In my view, the substance is neither surprising nor all that provocative, but the tone is fascinating. In particular, I am intrigued by the "keep your chin up" theme: DAG Comey at the outset commends prosecutors "for your flexibility, your creativity and your good humor in these difficult times" and in closing lauds prosecutors' hard work and says that their "ability and dedication will get the job done in these challenging times."
The 6th Circuit speaks on plain error!
Joining the Fourth Circuit which last week came to a similar conclusion in Hughes (basics here), this morning the Sixth Circuit has held in US v. Oliver, No. 03-2126 (6th Cir. Feb. 2, 2005) (available here), that "the district court plainly erred by applying the federal sentencing guidelines as mandatory rather than advisory and thereby sentencing Oliver beyond the sentencing range which the jury verdict and Oliver's criminal history supported."
The Oliver opinion has a lot of interesting language about how courts should be sorting through cases post-Booker, and a footnote distinguishing the Supreme Court's "plain error" ruling in US v. Cotton, 535 U.S. 625 (2002), seems especially noteworthy. These lines in that footnote particularly caught my eye:
Provided that a district court judge metes out a sentence which constitutes a reasonable application of 18 U.S.C. § 3553(a), the sentence may diverge from the applicable guideline range. Thus, even if we conclude that the evidence is "overwhelming and essentially uncontroverted" we cannot know the length of imprisonment that the district court judge would have imposed pursuant to this evidence following Booker. We would be usurping the discretionary power granted to the district courts by Booker if we were to assume that the district court would have given Oliver the same sentence post-Booker.
With the Oliver ruling, we now have two unanimous panels of two purportedly "conservative" circuits finding Booker errors to constitute "plain error" (which means they lead to reversal even if the issue was not raised in the district court). I would expect this may soon become a consensus view in all the circuits (though, especially after the Booker ruling, I now take nothing for granted concerning court rulings in this area).
Ashcroft's curious parting shot about Booker
As is being widely reported in stories from CNN and the Los Angeles Times and the Washington Post, out-going AG John Ashcroft gave a speech at the Heritage Foundation on Tuesday in which he criticized the Booker ruling, calling it a "retreat from justice that may put the public's safety in jeopardy." In the speech, Ashcroft said Congress, in response to Booker, "should reinstitute tough sentences and certain justice for criminals."
Thanks to the folks at the Heritage Foundation, you can watch the speech via the web from a link here. The discussion of Booker is only a very small part of Ashcroft's speech (it starts just after the 18:30 spot in the video, and runs only about two minutes), and I was intrigued by the entire presentation.
Concerning Booker, I was particularly intrigued by Ashcroft's critique of the Supreme Court's decision to render the guidelines advisory since this was the remedy being vigorously urged by Ashcroft's Justice Department if Blakely was deemed applicable to the federal system!
Consider the fact that, had the Booker remedy proposed by Justices Scalia, Thomas and Stevens carried the day, the federal system would now still have mandatory guidelines in full force that would require "tough sentences and certain justice for criminals." Of course, under the dissenters' remedy, those facts which trigger tough and mandatory guideline sentences would have to be proven to a jury or admitted by the defendant. But requiring the facts of criminal conduct to be so proven is not (at least in my view) such a radical concept.
But, to repeat, after Blakely, DOJ fought tooth and nail in every lower federal court and in the Supreme Court for the guidelines to be declared advisory if Blakely was applicable to the federal system. If Ashcroft is so concerned about "certain justice," why was his Justice Department advocating making the guidelines advisory? We must remember that DOJ essentially won on the remedy issue in Booker. Moreover, I am very confident that Justice Breyer's advisory guideline remedy would not have garnered five votes (including the vote of Chief Justice Rehnquist) were it not for DOJ's vigorous and effective advocacy of an advisory guideline remedy.
Looking forward, if DOJ now decides it was a mistake to seek an advisory system because of the need to ensure "tough sentences and certain justice for criminals," isn't the simple answer for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker? As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act, it would simply require Congress to express its intent for the guidelines to be mandatory even though we now understand the Constitution demands that aggravating facts triggering longer guideline sentences have to be proven to a jury or admitted by the defendant.
February 1, 2005
Judge Bataillon provides another great take on Booker
In this post right after Judge Cassell issued his remarkable Wilson opinion (basics here, commentary here and here), I suggested that many judges would contribute in different ways to our view and understanding of the post-Booker world. Of course, as summarized here, that has proven true in many ways already. And now I can post another path-breaking effort from US District Judge Joseph Bataillon in US v. Huerta-Rodriguez, No. 8:04CR365 (D. Neb. Feb. 1, 2005).
As detailed in posts here and here, Judge Bataillon issued a number of important opinions in the post-Blakely era, and thus I am not surprised he has now answered the post-Booker call. And I am especially excited to see that in Huerta-Rodriguez, which can be downloaded below, Judge Bataillon has developed in remarkable ways some of the due process concepts I have discussed here and here.
The Huerta-Rodriguez decision defies summary, and it is a must-read for everyone trying to think through the post-Booker world. Let me just whet everyone's appetite with a few choice passages:
Although the advisory Guidelines system does not arouse Sixth Amendment concerns to the extent that a mandatory Guidelines system does, ... this is not to say that there are no longer any constitutional constraints on sentencing under Booker, even as applied to the now-advisory Guidelines system. The Due Process Clause is implicated whenever a judge determines a fact by a standard lower than "beyond a reasonable doubt" if that factual finding would increase the punishment above the lawful sentence that could have been imposed absent that fact. [Booker, 125 S. Ct.] at 754-55; Apprendi, 530 U.S. at 494. Booker does not alter these due process constraints on sentencing....
In order to comply with due process in determining a reasonable sentence, this court will require that a defendant is afforded procedural protections under the Fifth and Sixth Amendments in connection with any facts on which the government seeks to rely to increase a defendant's sentence....
There is no authority to support the contention that a defendant can consent to a change in the burden of proof for a criminal prosecution. This is so because the burden of proof is not the defendant's to waive....
The court is cognizant that the limits of due process are defined with reference to the line that separates an element of a crime from a sentencing factor.... That line remains blurred after Booker. In view of the uncertainty surrounding this issue, the court will err on the side of caution in protecting a criminal defendant's constitutional rights. Just as a court should construe a statute to avoid a constitutional infirmity if possible, ... prudence dictates that the court should adopt sentencing procedures that lessen the potential that a sentence will later be found unconstitutional.
In addition to this fascinating work on due process, Judge Battalion's opinion in Huerta-Rodriguez also has a lot to say about the post-Booker concept of reasonableness. And the decision earns extra points for being, I believe, the first post-Booker opinion to cite the US Sentencing Commission's 15-year report. Happy reading.
Multi-branch Booker rumors and suggestions
The Booker buzz is coming from all three branches of the federal government today. I will quickly report some of what I am hearing, make suggestions along the way, and encourage readers who might be in the know to report additional information (and suggestions) in the comments.
The Legislative Branch's response to Booker: I have been hearing buzz now for some time about efforts afoot in the US House of Representatives to craft a legislative response to Booker, and today the buzz has turned into a story that the House has plans for hearings next week. I suggest that hearings, if they are in the works, be sure to include a broad array of constituents, especially persons from the states who are familiar with the pros and cons of advisory guideline systems.
The Executive Branch's response to Booker: I have been hearing buzz now for some time about a memo from Main Justice to all federal prosecutors setting out DOJ policies and procedures in the wake of Booker. I suggest that DOJ make this document publicly available on its website, since blogs should not have to be the paper of record for important materials like this.
The Judiciary Branch's response to Booker: Two components here: (1) I believe the US Sentencing Commission (remember, it's in the Judicial bBanch) has already announced that it will be having hearings about Booker in two weeks. In addition to again encouraging a broad array of participants, I hope the USSC will have preliminary post-Booker sentencing data to share before or during the hearings. (2) I surmise that most federal judges are finding that the Breyer Booker remedy is working pretty well, at least for now, and that judges may soon be collectively advocating the status quo for now (similar to the ABA's recommendation). I suggest that members of the federal judiciary not be afraid to become vocal advocates in the coming policy debate, since district and circuit judges have unique and critical perspectives on both the pros and cons of the pre-Blakely guidelines and the pros and cons of our new post-Booker realities.
The 8th Circuit speaks on reasonableness!
The Eighth Circuit is keeping the Booker cases coming fast and furious (prior rulings here and here and here). Today the court broke at least a little new ground with US v. Yahnke, No. 04-1098 (Feb. 1, 2005) (available here). The Yahnke case involves an upward departure based on the defendant's criminal history, and the decision is a doodle dandy primarily because it seems to be the first case to address the appellate standard of "reasonableness."
Because of the posture of the case (it is not clear Yahnke raised or briefed a Blakely issue), as well as the substantive issues involved (arguably there was no Blakely problem because of the prior conviction exception and/or the defendant's admissions), it would not be wise to draw too many conclusions from the Eighth Circuit's (relatively brief) Yahnke ruling. Nevertheless, this defendant has struck out because the Eighth Circuit found the sentencing reasonable through these key passages:
In this case, the district court followed U.S.S.G. § 4A1.3(a), finding Yahnke's criminal-history category substantially underrepresented the seriousness of his criminal history and the likelihood of recidivism. After Booker, this court determines whether a sentence is unreasonable based on the factors in section 3553(a). Two of those factors are "the history and characteristics of the defendant" and the "need . . . to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a)(1), (a)(2)(C). Although the district court labeled its reasons in terms of the sentencing guidelines, the sentence is based on a consideration of the factors in section 3553(a)....
The district court's interpretation of section 4A1.3 is reasonable. Neither the guidelines nor the commentary prohibit considering convictions also used to award criminal-history points. Treating alike defendants with similar criminal histories (or likelihood to recidivate) is based on the factors in section 3553(a). See 18 U.S.C. § 3553(a)(2)(C), (a)(6). Thus, some categories of crimes, such as murder, would be underrepresented by an inflexible 3-point addition for any sentence over one year and one month. See U.S.S.G. § 4A1.1(a).
Yahnke was previously sentenced to 50 years for murder, and paroled after serving only about 7 years. The violent nature of the murder conviction, the length of the sentence, and the time actually served support a finding that Yahnke's criminal history category substantially underrepresented the seriousness of his criminal history. See 18 U.S.C. § 3553(a)(1), (a)(2)(C).
The district court also found that Yahnke's parole violations and other uncharged criminal conduct justified an increase in his criminal history. The guidelines suggest that a district court increase a defendant's criminal history based upon information of uncharged criminal conduct similar to the instant offense — which a district court would now consider as part of the "defendant's history" and "recidivism" factors. See 18 U.S.C. § 3553(a)(1), (a)(2)(C); U.S.S.G. § 4A1.3(a)(2)(E).
The district court found that Yahnke had four parole violations, including three failed urinalysis tests. Yahnke also admitted numerous other incidents of criminal conduct — all drug-related but not charged — for which he originally received no criminal-history points. The district court reasonably considered Yahnke's continued drug-related, uncharged conduct as proof that his criminal-history category substantially underrepresented the seriousness of his criminal history and potential for recidivism. See 18 U.S.C. § 3553(a)(1), (a)(2)(C)....
Based on the record, the district court's sentence is reasonable and not an abuse of discretion.
The ABA weighs in on Booker
I just received a copy of the final Recommendation and Report submitted by the Blakely Task Force on behalf of the ABA's Criminal Justice Section to the ABA's House of Delegates (which apparently will be considered officially at a meeting later this month). The document, which can be downloaded below, "urges the United States Congress to take [certain] steps to assure that federal sentencing practices are effective, fair and just and effectuate the goals of sentencing set forth in the Sentencing Reform Act."
In short form, the Task Force is urging that Congress allow the current advisory system to remain in place for at least 12 months to allow sufficient time to evaluate its efficacy. In addition, this report states that, Congress believes that advisory guidelines are unacceptable after this period of study, then it should give careful consideration to a simplified, Blakely-ized federal sentencing system.
Booker insights around the blogsphere
The blogsphere is teeming with Booker buzz providing all sorts of interesting federal sentencing insights and food-for-thought:
- Peter Henning at the White Collar Crime Prof Blog has this post commenting on what Booker could mean for the Enron Nigerian Barge case (which I discussed earlier today at the end of this post), and has an especially interesting post here discussing a post-Booker plea agreement providing for a "stipulated sentencing range that, if not followed by the judge, permits either party to withdraw from the plea bargain." Peter rightly ponders whether this sort of plea term will work to tether judges to the guidelines and how judges might now respond to such tethering.
- The fine folks at the Ninth Circuit Blog provide here a very useful and lengthy outline of federal Booker decisions that have come out as of January 30, 2005, as well as an amicus curiae letter brief filed on behalf of the NACDL in US v. Ameline in this post.
- The Second Circuit Blog here notes a peculiar post-Booker guidelines ruling from the Second Circuit which makes no mention whatsoever of Booker even though the case involved judicial fact-finding.
I hope to be able to do some commentary (and thinking out loud) about both the plea argeement item and also the Second Circuit's Booker-silent ruling later today.
The morning's Booker reports
Today's papers have an array of interesting stories about the impact of Booker on federal sentencing developments:
- This story from Detroit reports on the sentencing of a school official sentenced to 80 months' imprisonment in a fraud case. Repeating a developing pattern noted here and here, this sentence was a bit below the calculated guideline range, but much more severe that the probationary sentence being sought by the defense.
- This story from Houston reports on the appeal in the Fifth Circuit of former Dynegy executive Jamie Olis, whose sentence was increased to 24 years based on judicial fact-finding. Right after Booker, I suggested here that this tough sentence (which has garnered significant media attention) seems especially questionable in light of the parsimony requirement that now controls application of 3553(a) at federal sentencing.
- This story also from Houston reports that US District Judge Ewing Werlein has "declared moot the makeshift sentencing hearing held before jurors" in the Enron Nigerian barge case last November. (Background details on that proceeding are here and here.) My instinct is to say the result of the Nigerian Barge "sentencing trial" should still be relevant to advisory guideline calculation, but it will now be especially interesting to see how this sentencing gets handled in March.
Professor Bibas' latest on Blakely
I just noticed that Professor Stephanos Bibas has posted on the Social Science Research Network an expanded version of his presentation at the Stanford Law School's Blakely conference last October. (Background on the Stanford event can be found here and here, and highlights here.) Entitled "The Blakely Earthquake Exposes the Procedure/Substance Fault Line," the paper's abstract and download information can be accessed here. Here is the full text of the abstract:
This essay, originally presented at the Stanford Law School symposium The Future of American Sentencing: A National Roundtable on Blakely, examines how the Supreme Court's majority and dissent could look at Blakely in such radically different ways. As the majority sees it, Blakely is a fundamental, ringing vindication of the substantive right to jury trial. On this view, Blakely should be fully retroactive to habeas and for Ex Post Facto purposes. But the dissent's view was so different that the two sides were speaking past each other. On that view, Blakely is a mindless formalism, just another hoop for legislatures to jump through or to evade.
Though I have been the leading critic of the Apprendi/Blakely line of cases, I must give the Supreme Court credit for forcing us to confront and bridge the artificial divide between substantive criminal law and criminal procedure. What is a crime -- is it whatever the legislature labels as a crime? And why have a distinct sentencing phase, after the guilt phase and run by a different factfinder using looser procedures? Do these artificial divisions distract us from the moral import and message that our criminal justice system should be sending?
Apprendi and Blakely asked the right questions but gave the wrong answers. A better approach, I argue, would use not the Fifth and Sixth Amendments but the Eighth Amendment to regulate statutory and guideline penalties equally.
January 31, 2005
PLI's upcoming program on Booker
If you just cannot get enough Booker on this blog, you will be happy to hear that the Practising Law Institute has arranged for a "Telephone Briefing," on February 11, 2005 from 1:00pm -- 2:30pm EST to examine the impact of Booker. US Sentencing Commissioner Michael Horowitz and Professor Leonard Orland will participate in briefing, and you can access registration details for the event here and the details for accessing a live audio webcast here. At both links you will see that PLI plans to cover a wide array of key post-Booker topics.
Sentencing sensibilities south of the border
My co-author and co-editor Nora Demleitner called to my attention this interesting article from the New York Times concerning the federal government's agreement with Mexican authorities to extradite to the US Agustin Vasquez Mendoza, who is suspected of orchestrating the killing of an undercover American drug agent in Arizona in 1994. What especially caught our attention was the report that "federal officials have waived the death penalty for Mr. Vasquez, and recommended that any sentence for him include the possibility of parole after 25 years." Given that there has not been parole in the federal system since 1987, we wondered about the terms of this deal.
Nora did some investigating and reported these interesting details about this case and related issues of extradition:
A Maricopa County, Phoenix, Arizona, grand jury indicted Vasquez for First Degree Murder, Conspiracy to Commit Armed Robbery, Kidnapping and Attempted Armed Robbery following the killing of a DEA agent in 1994. Even though Mexican authorities arrested Vasquez in 2000, extradition has been held up in part by Mexico's restrictions on extradition. Though Mexico extradites its nationals, it does not do so if they could either receive a death sentence or a life without a parole term. The Mexican Constitution, according to Mexico's highest court, assumes that every person is capable of rehabilitation and must be afforded the opportunity to show it. This is why US officials had to waive capital charges and agree to recommend parole eligibility after 25 years, assuming Vasquez gets convicted. The Mexican high court's decision not to permit extradition in life-without-parole cases has made extradition with Mexico more difficult. While Mexico isn't the only country with this restriction, it's the most important for the US in terms of extraditions.
Continued Connecticut capital commotion
As well covered by the blogs Kirby's Reports and Three Generations, Connecticut has hit a major roadblock in its efforts to have the first execution in the Northeast in 40+ years. This AP story provides all the details, including the fact that now, under state law, the execution cannot be scheduled for at least a month after a new warrant is issued.
As evidenced by posts here and here at Crime & Federalism, Norm Pattis is not too pleased with these developments. TalkLeft appears pleased. I continue to wonder how much time, money and energy has been expended on litigation concerning this one sad, but symbolic, case.
UPDATE: The New York Times has the latest news on the case here.
Another 8th Circuit Booker ruling
Continuing to set the pace for circuits in rendering Booker decisions, the Eighth Circuit today issued US v. Fox, No. 03-3554 (8th Cir. Jan. 31, 2005) (available here). Legally, there is nothing crafty about the Fox ruling; the defendant had preserved a Blakely claim and the Eighth Circuit does nothing more than remand for resentencing in accordance with Booker. However, factually, the case provides a useful primer on why Blakely and Booker are so consequential. Here's the court's account of how judicial fact-finding initially played a role in Fox's sentencing:
In this case, the jury made a specific finding that Fox was responsible for at least 50 grams of methamphetamine, but less than 500 grams of methamphetamine. The presentence investigation report recommended that Fox be found responsible for 1.814 kilograms of methamphetamine. Fox filed an objection to this recommendation and argued the objection during the sentencing hearing before the district court. However, the district court overruled Fox's objection on this issue and found, based on a preponderance of evidence, that 1.814 kilograms of methamphetamine were attributable to Fox. This resulted in a significant enhancement to the applicable guideline range utilized by the trial court in assessing its sentence.
In addition to providing a window on the types of cases impacted by Blakely and Booker, this case reinforces the my views, developed in this post, about requiring proof beyond a reasonable doubt in any "legislative fix" of Booker.
More insightful defense commentary
Late last week I spotlighted here some provocative posts from Steve Sady of the Ninth Circuit Blog on issues relating to burden of proof, prior convictions and retroactivity in the wake of Booker. I now see that Steve's colleagues have joined the fray with summaries and analysis of some key post-Booker lower court decisions:
- In this post, Steve Kalar discusses Judge Adelman's decision in Ranum as a "defense roadmap." (You can also find Ranum basics here, and my commentary here and here.)
- In this post, Fran Pratt discusses the Fourth Circuit's approach to plain error in Hughes. (My own coverage of Hughes is here, and links to other major post-Booker circuit court rulings are here.)