December 17, 2005
Great Alaska opinion on Blakely and consecutive sentencing
Proving yet again that great sentencing work is being done in the states (a reality reflected the latest FSR issue about Blakely in the states), the Alaska Court of Appeals on Friday issued an interesting Blakely decision in Vandergriff v. State, No. 2022 (Alaska App. Dec. 16, 2005) (available here). In Vandergriff, the court holds that Blakely is inapplicable to a judicially-created state law rule which sometimes limits imposition of consecutive sentences unless a judge finds consecutive sentencing is necessary to protect the public.
What makes Vandergriff particularly special and especially worthy of everyone's attention is a fantastic concurrence by Judge Mannheimer. This concurrence not only gives thorough treatment to Blakely's applicability to consecutive sentencing than, but also provides a cogent and compelling account of the Apprendi-Blakely-Booker line of decisions. Here's one of the opening paragraphs from Judge Mannheimer's strong and effective opinion:
It is difficult to write a single paragraph that encapsulates the Supreme Court's holdings in Apprendi, Blakely, and Booker without any ambiguity. However, the basic principle behind Apprendi, Blakely, and Booker is to preserve the right of jury trial in the face of legislative attempts to divide offenses into "elements" (facts to be proved at trial) and "sentencing factors" (facts to be proved at the sentencing hearing). Apprendi, Blakely, and Booker hold that when the maximum punishment to which a defendant can be subjected varies according to the defendant's degree of offense, a defendant has the right to demand that a jury decide their degree of offense, and the right to demand that the factors which distinguish one degree offense from another be proved beyond a reasonable doubt.
Great sentencing items around the blogosphere
While cranky technology slowed me down on Friday, others in the blogosphere helped keep the sentencing fires burning:
- Howard at How Appealing had a number of notable sentencing items in his Friday cavalcade of coverage. Check out this an examination of technicality injustice in a capital case, and the flagging of an important Ninth Circuit sentencing decision. (I'll have more on the Ninth Circuit's work in a subsequent post.) UPDATE: Howard has more coverage of the Texas capital case here.
- The Federal Defender blogs have a lot of new and notable items of late, and the coverage of sentencing issues is especially robust at the Second Circuit Blog, the Third Circuit Blog, and the Sixth Circuit Blog. Also, a must-read post from the defender team is this justified rant by Steve Sady at the Ninth Circuit Blog, which argues that "lower courts have been providing inadequate protection against Sixth Amendment violations: the failure to apply Apprendi and Blakely retroactively calls for the Supreme Court's intervention."
December 16, 2005
New Jersey death penalty moratorium in the works
New Jersey has essentially had a de facto (and pricey) moratorium on executions for more than two decades: as detailed here, the state has spent over $250 million on administering its capital punishment system without having executed anyone.
Now, as a result of a state senate vote on Thursday, it appears that New Jersey will soon have an official moratorium on executions for a year while its capital punishment system is studied. As detailed in news reports from the AP and from the Newark Star-Ledger, the state Senate by a vote of 30-6 passed a bill that provides for a one-year hiatus on the death penalty while a commission studies whether the state's death penalty has deterred crime and has been "consistent with evolving standards of decency."
Lots of weekend reading from SSRN
I am in the process of catching up after a day of Typepad dysfunction. Look for lots of posts throughout the weekend on big cases decided Friday and other sentencing news of note. While I am catching up, check out some of the interesting new papers at SSRN on sentencing or related topics:
- Facing Evil by Joseph Edward Kennedy
- Differentiating Between First Offenses and Repeat Offenses by Bryan C. McCannon
- Crime, Deterrence, and Democracy by Libor Dusek
- Transparency and Participation in Criminal Procedure by Stephanos Bibas
- The New Prosecution by Kay L. Levine
- An Idealist Theory of Punishment by Thom Brooks
And, of course, as you put together your holiday reading list, do not forget the latest FSR issue about Blakely in the states or this previously noted paper at SSRN about state sentencing systems and voluntary guidelines.
Hostage to technology
Sorry for the interruption in posts today, but the Typepad service was down all day. And, of course, Friday would turn out to be active, with lots of interesting sentencing decisions from the Ninth Circuit and other state and federal courts. I hope to catch up for lost time over the weekend.
Thanks for your patience.
December 15, 2005
Notable new paper on voluntary guidelines
Thanks to this post at the Legal Theory Blog, I see an interesting new paper at SSRN about state sentencing systems and voluntary guidelines (topics which are also addressed in the latest FSR issue about Blakely in the states). Authored by John Pfaff, and available for download here, the new paper is entitled "The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines." Here is the abstract:
This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v Washington.
In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation. For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 28% for violent crimes and 17% for property crimes. By comparison, the analogous results for presumptive guidelines are a 48% drop for violent crimes and a 45% drop for property crimes. For the use of impermissible factors, the results are more ambiguous. Presumptive guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing; due to limitations in the data used for this project, however, it is difficult to draw clear inferences about the welfare implications of the changes with regards to the use of impermissible factors.
Furthermore, voluntary guidelines appear to avoid some of the problems associated with other alternatives, such as sentencing juries and the increased use of mandatory minimums. In short, voluntary guidelines appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely.
In praise of Slate's recent sentencing coverage
The great work of regular columnists like Emily Bazelon (lastest here) and Dahlia Lithwick (latest here) makes me a regular reader of Slate's jurisprudence columns. But I have to give the Slate team an extra shout out of its many great recent columns on sentencing-related issues.
Earlier this week, as noted here, Slate published Alexandra Natapoff's strong piece about snitching. And then yesterday, Slate published this great piece by Noah Leavitt, which discusses a range of important international sentencing issues in explaining why "Mexico and the United States ... are miles apart in terms of how they think about the rights of criminals — both foreign and domestic."
Completing a potent troika today is this terrific piece by Judge Coleman, which effectively and insightfully deconstructs California Governor Arnold Schwarzenegger's "Statement of Decision" denying clemency to Stanley 'Tookie' Williams. Here's a taste: "Arnold Schwarzenegger's five-page statement denying clemency to Stanley 'Tookie' Williams earlier this week could well be included in future criminal-law casebooks.... Chances are even the most java-jolted law student wouldn't notice it didn't come from a court."
The number 1,000,000 in sentencing perspective
I see from my site-meter summary that this afternoon I passed 1,000,000 total visits since the meter started running about 18 months ago. That milestone prompts me not only to thank all of my readers for their support and encouragement, but also to do a Harper's Index, sentencing style:
Number of persons executed in modern US death penalty era: 1004
Number of persons on death row in the US: 3415
Number of federal sentences imposed in fiscal year 2004: 70,068
Number of persons in US serving life imprisonment: 132,000
Number of persons released from US prisons each year: 630,000
Number of felony sentences in state court in 2002: 1,051,000
Number of prisoners in federal or state prisons or jails at the end of 2004: 2,135,901
Number of persons supervised on probation or parole at the end of 2004: 4,916,480
A white-collar sentencing in scarlet and gray
Right in my backyard today was a high-profile white-collar sentencing involving former Ohio State University marketing professor Roger Blackwell and his co-defendants. Here are highlights from this informative article about today's sentencing:
A federal judge has sentenced Roger D. Blackwell to six years in federal prison for his role in the 1999 Worthington Foods Inc. insider-trading scheme. U.S. District Court Judge James L. Graham on Thursday also ordered Blackwell, 65, to pay a $1 million fine.
Earlier in the day, Graham sentenced co-defendants Kelley L. Hughes to 33 months in prison, and Hughes' husband, Kevin L. Stacy, to 27 months. They were each fined $53,433, their share of the ill-gotten proceeds from trading in Worthington Foods stock prior to the public announcement in 1999 that the company was being acquired by Kellogg Co.
A helpful reader reported via e-mail that Blackwell's sentence of 72 months "was on the upper end of the guideline range of 63-78 months, and the judge made an upward departure on his fine [in order] to sentence him to pay $1,000,000."
Some of my prior coverage of the many interesting post-Booker white-collar sentencing issues can be found in these posts:
Two different California perspectives on reefer madness
Two cases coming from California involving sentencing for marijuana offenses caught my attention this afternoon:
- This article reports on a state case in which a "judge chose probation over prison yesterday as the sentence for an Oceanside man convicted of growing marijuana he said was for medicinal use." The article not only discusses controversies over California's medical marijuana laws, but also notes that this week "federal agents raided 13 medical marijuana dispensaries around the county after an investigation in which undercover agents bought marijuana without showing the paperwork required by the state law."
- This decision today from the Ninth Circuit highlights why federal intervention can be so consequential. In the decision, the court quickly rejected Fifth and Eighth Amendments arguments against the imposition of a ten-year mandatory minimum sentence for offenses involving 1000 or more marijuana plants.
Indiana Supreme Court gives broad interpretation to prior conviction exception
The Indiana Supreme Court this week finally resolved Ryle v. State, a major Apprendi's "prior conviction" exception case which addressed whether (1) juvenile adjudications and (2) being on probation can be subject to judicial factfinding to enhance sentences. (I have spotlighted Ryle in prior posts here and here and here because it seems like a good test case for these important post-Blakely issues that have divided lower courts.)
In Ryle v. State, No. 49S02-0505-CR-207 (Ind. Dec. 13, 2005) (available here), a unanimous court concluded that judges can find facts about juvenile convictions and probation status without running afoul of the Sixth Amendment's jury trial right. Here is the opening paragraph in Ryle:
When the trial court ordered an enhanced sentence for appellant Kenna D. Ryle's manslaughter conviction, it cited his four juvenile adjudications and the fact that he was on probation when he committed the crime. Our analysis of Apprendi v. New Jersey leads us to conclude that these factors are proper sentencing considerations for a trial judge and need not be submitted to a jury.
The Ryle decision is an interesting read, and it provides another example of a court eager to give Apprendi and Blakely a functional reading, rather than apply these decision as drawing a bright line about what findings must be made by a jury. (I explore whether Blakely draws a bright line in this post.)
More about the Ryle ruling can be found in this newspaper article about the decision. The Indiana Supreme Court this week also resolved a similar case on the same basic grounds: Williams v. State, No. 49S02-0512-CR-643 (Ind. Dec. 13, 2005) (available here).
The Indiana Supreme Court's broad interpretation and application of the prior conviction exception stands in sharp contrast to the work of a number of other lower courts which have, as detailed in posts here and here and here, given the exception a narrow reading. I continue to wonder how deep these splits will need to be before the Supreme Court finally takes up a case to address head-on the continued validity and precise scope of the "prior conviction exception."
New report on NY reform of Rockefeller drug laws
Thanks to this item from the Drug Policy Alliance, I see that the Legal Aid Society has just released an interesting report analyzing the impact and efficacy of New York's partial reform of its Rockefeller Drug Laws last year. The New York Times today has this article discussing the findings of the report.
The Legal Aid Society report, which can be accessed here, is entitled "One Year Later New York's Experience with Drug Law Reform." The Legal Aid Society has also produced this fact sheet about the New York Drug Law Reform Act of 2004 (DLRA), and that fact sheet includes these assertions:
After One Year
- Hundreds of people did not get out of prison.
- The re-sentencing process is much slower than expected.
- District Attorneys are often fighting re-sentencing and asking for high sentences.
- The DLRA did not significantly lower the prison population.
- The State Department of Correctional Services has not expanded drug treatment in prison, as required.
December 14, 2005
Latest FSR issue on Blakely in the States
I am pleased to announce that another issue of the Federal Sentencing Reporter is at the press. This latest issue shifts FSR briefly away from the Booker beat — which we've covered in our last two issues examining "The Booker Aftershock" and "Is a Booker Fix Needed?" — and back to the Blakely beat. Recall that, in the months after the Blakely decision, FSR produced three Blakely issues, which are discussed here and here and here. (General information about ordering FSR is here and the journal can accessed electronically here.)
The return to the Blakely beat has this latest FSR issue focused on the "State of Blakely in the States." As you can see from the issue's contents, which are listed below, the amazing editorial team of Prof. Steve Chanenson and The Vera Institute's Dan Wilhelm has assembled a fantastic collection of original articles on how the Blakely earthquake has rumbled through the states.
The materials in this FSR issue reinforce my sense that the story of Blakely in the states is even more conceptually rich and dynamic than the story of Booker in the federal system. And, for a conceptual rich and dynamic overview of state Blakely matter, be sure to read this FSR issue's Editors' Observations, which can be downloaded below.
- Steven L. Chanenson and Daniel F. Wilhelm, Evolution and Denial: State Sentencing after Blakely and Booker Download state_of_blakely_ed_obs.pdf
- Don Stemen and Daniel F. Wilhelm, Finding the Jury: State Legislative Responses to Blakely v. Washington
- Dale G. Parent and Richard S. Frase, Why Minnesota Will Weather Blakely's Blast
- Ronald F. Wright, Blakely and the Centralizers in North Carolina
- Lenell Nussbaum, Sentencing in Washington after Blakely v. Washington
- Tom Lininger, Oregon's Response to Blakely
- Bennett Barlyn, Sentencing Law Under the Knife: Judicial Surgery, the New Jersey Supreme Court and State v. Natale
- David Louis Raybin, The Anticipated Resolution of the Blakely Split of Authority in the States: Will the United States Supreme Court Dance the Tennessee Waltz?
- Jonathan D. Soglin and J. Bradley O'Connell, Blakely, Booker, & Black: Beyond the Bright Line
- Tony Ortiz, The New Mexico Sentencing Commission's Legislative Proposal Subsequent to Blakely v. Washington
The next death penalty debates in California
In this post, I made the obvious point that debates over the death penalty will rage on after the execution of Stanley "Tookie" Williams on Tuesday. And thanks to this post at How Appealing collecting news stories, I see that death debates haven't even take a breather in California:
- This story explains that "Clarence Ray Allen, the next inmate scheduled to die in San Quentin State Prison's execution chamber, may pose a quandary as vexing for Gov. Arnold Schwarzenegger as Stanley Tookie Williams."
- This story explains that California "State legislators in early January will consider what is likely to be a contentious proposal to postpone executions for as long as three years. On Jan. 10, an Assembly committee plans to consider legislation that would place a moratorium on executions until a special commission finishes examining whether California's criminal justice system allows innocent people to be convicted."
December 13, 2005
Extended Fifth Circuit discussion of appeal waivers
Following the lead of the Second Circuit's recent work on related issues, the Fifth Circuit in US v. Burns, No. 04-11357 (5th Cir. Dec. 13, 2005) (available here), has issued a thoughtful opinion which discusses appeal waivers at length. Here is the closing paragraph in Burns:
We join the other circuits in holding that an otherwise valid appeal waiver is not rendered invalid, or inapplicable to an appeal seeking to raise a Booker or Fanfan issue (whether or not that issue would have substantive merit), merely because the waiver was made before Booker. Apart from being made pre-Booker, Burns's waiver is clearly otherwise valid, voluntary, knowing and intelligent, and applicable to the Fanfan issue which constitutes his sole ground of appeal.
Oh data, data, data, I now have lots of clay...
And when I have more time, with data I shall play!
Pardon the lousy effort to add a little musical holiday spirit to this post; I'm punchy after a long day. And yet, I now have new energy because the US Sentencing Commission on its website has just made available this fascinating 32-page data report with selected federal sentencing data for Fiscal Year 2004. Here's how the USSC describes its (Blakely-impacted) latest data release:
The Commission has released selected data for Fiscal Year 2004. More comprehensive data will be released soon in the Fiscal Year 2004 Annual Report and SourceBook.
The following information is divided into three sets of tables to reflect the Supreme Court's decision in United States v. Blakely, which was handed down on June 24, 2004. Table 2 and 3 report information based on all cases sentenced during fiscal year 2004 (October 1, 2003 through September 30, 2004). The remainder of the information is divided into two sets of identical tables (Table 10, 11, 13, 16, 26 and 26A). The tables in each section are numbered identically with subtitles that indicate the relevant time period (pre-Blakely and post-Blakely). Because of this distinction, the reader should review carefully the subtitle to ensure that the correct time period is being referenced. The first set of tables are based solely on pre-Blakely cases, which include cases sentenced on October 1, 2003 through June 24, 2004. The second set of tables are based solely on post-Blakely cases, including cases sentenced on June 25, 2004 through September 30, 2004.
As previously highlighted in this post and many others about post-Booker sentencing data, perhaps the most important story for the future of federal sentencing is not what the data say, but what various key players (and especially the USSC and the Justice Department) say about the data. So, what everyone makes out of the raw
clay data that the USSC has now given is the big story that is still in development.
Eleventh Circuit approves sentences based on hearsay evidence of uncharged murders
In his opinion for the majority in Blakely, Justice Scalia expresses concern about defendants possibly being punished for an uncharged murder and possibly being punished based on weak hearsay testimony proven to a judge only by a preponderance of the evidence. If these issues truly concern Justice Scalia (and other members of the Blakely majority), the Supreme Court ought be interested in a cert. petition coming from today's decision by the Eleventh Circuit in US v. Baker, No. 00-13083 (11th Cir. Dec. 13, 2005) (available here). (Tech warning: the PDF of this opinion is causing Adobe to crash for me sometimes.)
Starting at page 124 of an 137-page opinion(!!), the 11th Circuit in Baker affirms long sentences for a number of co-defendants in a large drug conspiracy on the basis of hearsay testimony concerning their involvement in an uncharged murder. Fans of Crawford debates will especially enjoy the court's work in footnote 68, where the Eleventh Circuit explains why Crawford is to be inapplicable at sentencing.
- Sentenced for an uncharged murder
- Sentenced for three uncharged murders
- Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes
White paper critical of Alito's death penalty work
Perhaps not coincidentally on the day of the highest profile execution in many years, the American Constitution Society today has posted on-line this white paper by Prof Goodwin Liu and Lynsay Skiba entitled "Judge Alito and the Death Penalty." The 14-page paper strikes themes similar to Prof Liu's 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. Here is an opening paragraph from the white paper:
In his 15-year career on the U.S. Court of Appeals for the Third Circuit, Judge Samuel Alito has participated in 10 capital cases. Five were decided unanimously by three-judge panels. The other five provoked strong disagreement between Judge Alito and his colleagues. In each of the five contested cases, Judge Alito ruled against the inmate. His opinions, which we examine in detail, show a disturbing tendency to tolerate serious errors in capital proceedings. They reveal troubling perspectives on federalism, race, and due process of law, and they have worrisome implications for the protection of individual liberties in the war on terror.
As detailed in the prior posts listed below, there is a lot to say on these topics:
- 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
- Critical commentary on Alito's death penalty work
- Counterpoint on Alito and the death penalty
The death penalty debate continues on...
Though the execution of Stanley Williams and Schwarzenegger's denial of clemency have garnered plenty of media attention, the Chicago Tribune in this article asks the question: "Will execution move the debate?"
My partial answer can be found in this post and perhaps through my comments on Minnesota Public Radio's Midmorning show today. Also, Will Baude at Crescat has these interesting thoughts about some aspects of modern death debates. Relatedly, though there are now lots of post-execution stories of interest, I find the headlines of these two articles especially notable (and telling?): "Pope, many Europeans express outrage over execution of 'Tookie' Williams" and "Los Angeles 'quiet' after Williams execution."
I also find especially interesting that the blogosphere — as evidenced by posts at Volokh, TalkLeft, and Crime & Federalism — seems ready and eager to move the debate to another (questionable?) death sentence.
Two Booker pipeline cases of note from the DC Circuit
The DC Circuit, perhaps because of the size of its docket, has had the fewest post-Booker sentencing rulings. But the DC Circuit, perhaps because of the size of its docket, makes sure that all of its post-Booker sentencing rulings are worth reading.
Today we get two sentencing decisions of note from that DC Circuit: US vs. Gomez, No. 04-3063 (DC Cir. Dec. 13, 2005) (available here) and US vs. Simpson, No. 04-3129 (DC Cir. Dec. 13, 2005) (available here). Both Gomez and Simpson principally address Booker pipeline issues — Gomez is about plain error, Simpson is about alternative sentencing. And because both Gomez and Simpson cover these Booker pipeline issues thoughtfully and in detail, both rulings merit a close read by anyone still dealing with such issues.