December 24, 2005
A Christmas sentencing classic
As folks get nestled all snug in their beds, I must pay homage to a true sentencing classic, 'Twas the Night Before Booker, that the mysterious Milbarge of the blog Begging the Question penned around this time last year as we were all breathlessly waiting for the Booker ruling. Here again is the opening refrain from Milbarge's brilliant sentencing lyrics in case you want your holiday mood to be flavored with sentencing memories:
'Twas the night before Booker, and all through the prison,
Inmates packed up the cells that they wouldn't be missing.
The lawbooks and transcripts were bound up with care,
In hopes that the verdict soon would be there.
I wonder if Milbarge might emerge from a winter slumber to pen an update in honor of Booker's upcoming birthday on January 12?
Seeking end of year "best" "most" "top" ideas and nominations
As 2005 winds to a close, I am thinking about possible end-of-year lists I could assemble like "Best sentencing opinions" or "Most interesting sentencing proposals" or "Top blog posts on sentencing topics." Lacking the inspiration to pick one idea and assemble candidates on my own, I would be grateful if readers would use the comments to (1) propose ideas for "best" "most" "top" lists, and/or (2) make nominations for any such list.
The Blakely earthquake hits Vermont
Yesterday, while the federal circuit courts were celebrating a Booker Festivus, the Vermont Supreme Court had its own version of a Blakely Festivus. As detailed in this news report, the "Vermont Supreme Court on Friday changed a quadruple murderer's punishment and deemed a nearly 20-year-old Vermont sentencing law unconstitutional."
The unanimous ruling came in State v. Provost, No. 2004-160 (Vt. Dec. 23, 2005) (available here). Here are some highlights from the provocative decision:
Vermont's homicide sentencing scheme is unconstitutional. The maximum sentence the court may impose under § 2303(a) without finding any facts in addition to the jury's verdict is life imprisonment with a minimum term of thirty-five years. Increasing that sentence to life without parole on the basis of any facts, other than a prior conviction, that the jury has not found beyond a reasonable doubt, violates the Sixth Amendment.... We hold that 13 V.S.A. § 2303(a) violates the rule in Apprendi and Blakely because it requires the sentencing court to weigh specific aggravating and mitigating factors not found by a jury beyond a reasonable doubt before imposing a sentence of life without parole....
We decline to follow the example of those courts that have created their own sentencing procedures to replace legislative schemes held unconstitutional in the wake of Apprendi and Blakely.... It is not at all clear whether the Legislature would prefer an indeterminate sentencing scheme placing greater discretion in trial judges, or a scheme requiring juries to conduct whatever additional fact-finding is needed.... Until the Legislature designs a constitutionally permissible means by which the factors can be weighed, there can be no basis for adjusting defendant's sentence above the presumptive term.
December 23, 2005
Interesting opinion on the right of victims to allocute at sentencing
Back in February, as detailed in posts here and here, the role of crime victims at sentencing was a topic of conversation at the US Sentencing Commission's major hearing focused on Booker issues(overall coverage linked here, specific highlights here and here). A focal point for the discussion at the federal level, as both Judge Paul Cassell and victim advocate Collene (Thompson) Campbell highlighted for the USSC, is Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act (codified at 18 USC § 3771).
This afternoon I received a copy of a fascinating opinion on this topic that was handed down earlier this week by none other that Judge Paul Cassell. In US v. Degenhardt, No. 2:03-CR-00297 (D. Utah Dec. 21, 2005) (available for download below), Judge Cassell issued a 19-page opus in response to the request by certain crime victims of a fraud to make a statement at sentencing. Here is the introduction to the opinion:
This criminal fraud case is before the court for sentencing. The government has advised the court that several of the victims wish to make a statement — or "allocute" — at the sentencing hearing. Their request presents a question under the current rules of Criminal Procedure, which gives only victims of crimes of violence or sexual abuse a right of allocution. This narrow provision, however, has been superceded by an Act of Congress — the Crime Victims Rights Act. The Act broadly guarantees victims of all crimes the right to allocute. Accordingly, the court will follow the congressional command and give the victims an opportunity to allocute at the sentencing.
Happy Booker holidays from the circuit courts
As a fitting way to honor a Booker Festivus, today the circuit courts have wrapped up the pre-holiday week by issuing a bunch of sentencing opinions. I have already seen notable decisions in the First, Sixth, Eighth and Ninth Circuits.
Since I have shopping to do, all I can do is note summarily that none of these rulings appears to be ground-breaking, but all of them continue to fill in a picture of a post-Booker federal sentencing universe that looks a lot like pre-Booker federal sentencing universe. (Also, I can give a shout-out to the Eighth Circuit, because at this official opinion page you can quickly see the basics and find links easy links to its copious Booker work.)
UPDATE: Late in the day, the Second, Fifth and Tenth Circuits also issued notable sentencing opinions. I suppose all the circuits have earned the right to take a long weekend off.
A Booker Festivus for the rest of us
Last year in this post, I celebrated a Blakely Festivus by engaging in a Blakely airing of grievances. To keep up the grand traditions of this special day, this year I am moved not only to encourage donations to the Human Fund, but also to air some of my Booker grievances:
1. Lower courts, in applying the Booker remedy, appear to have little concern for the Sixth Amendment and due process values that Blakely championed. Most of the lower federal courts, especially the circuit courts, continue to have no worries about basing severe sentence enhancements on uncharged or even acquitted conduct. Though a few brave district courts recognize that Blakely and the Booker merits majority both highlight problems with reliance on lax procedures at sentencing, most lower courts are more than happy to use the Booker remedy to continue with business as usual.
2. The Supreme Court, after having further muddled Blakely's meaning with its Booker remedy, appears to have little interest in cleaning up the messy state of sentencing jurisprudence. SCOTUS has already agreed to take up whether Blakely errors are structural, and I am also hopeful it will soon review how Blakely is being evaded in California and Tennessee. Nevertheless, by so far refusing to take up Booker plain error, and Blakely/Booker retroactivity, and the scope an validity of the prior conviction exception, the Court has revealed that it feels no guilt about making a jurisprudential mess and leaving clean-up duties to lower courts.
3. The US Sentencing Commission, though doing a good job releasing basic post-Booker statistics, still seems disinclined to take an active and bold leadership role. After conducting valuable public hearings in the months after Blakely and Booker, the USSC has been awfully quiet over the last 9 months as the post-Booker world unfolds. A major debate over a possible Booker fix seems likely in the coming year, and the USSC should be out front framing the issues for debate, rather than just waiting in the wings as proposals emerge from the Justice Department and in Congress.
4. The Justice Department, even though it asked for the Booker remedy and still possess dominant power in the federal sentencing system, favors an imbalanced Booker fix. Though there is no firm evidence to suggest that the post-Booker world of federal sentencing is dysfunctional, AG Alberto Gonzales is still advocating a Booker fix in the form of a minimum guideline system. Such a Booker fix seems unsound from both a legal and policy perspective, but the Justice Department's chief goal when advocating sentencing reforms seems to be simply maximizing the power of prosecutors and minimizing the power of all other players in the system.
Tellingly, Congress is so far left out of my grievance airing. Despite all the worries about the passage of mandatory minimums or other draconian sentencing laws in the wake of Booker, the legislative branch has so far been generally calm and tempered in its reaction. (A few members of the House are still interested in playing the "tough-on-crime" political game, but there seems to be a laudable new cautiousness on sentencing issues among many members of Congress.) Of course, there is buzz that this may all change come January upon the one-year anniversary of the Booker decision.
Say it with me: Serenity Now! Serenity Now! Serenity Now!
December 22, 2005
No mercy recommended for Dr. Death
Continuing the holiday clemency news, this AP story details that today the "Michigan Parole Board voted 7-2 to recommend denying the application for a commuted sentence or a pardon" for ailing Jack Kevorkian. Those who love the 90s surely recall why Kevorkian is known as Dr. Death:
Kevorkian is serving a 10- to 25-year sentence for second-degree murder after being convicted of giving a fatal injection of drugs in 1998. He was convicted in the poisoning of Thomas Youk, 52, of Oakland County's Waterford Township. Youk had Lou Gehrig's disease, and Kevorkian called it a mercy killing. The death was videotaped and shown on CBS' "60 Minutes."
As detailed in the AP story, Kevorkian's attorney filed an application with the parole board "because he is worried Kevorkian might not live until he is eligible for parole in 2007." This Reuters story provides additional details on Kevorkian and the parole board's ruling.
Is a picture worth 1000 more days in federal prison?
This interesting article highlights the perverted logic of the federal sentencing guidelines by detailing that, under the guidelines, a pervert who looks at pictures of children having sex can face a lot more prison time than a pervert who has sex with children:
A Daphne man pleaded guilty in Mobile's federal court Wednesday to driving to Florida to have sex with someone he thought was a 15-year-old girl. Another Daphne man pleaded guilty to possessing and receiving child pornography in an unrelated case. When both are sentenced in March, the child pornography defendant faces significantly more prison time — perhaps six times as much — under advisory sentencing guidelines.
"It's one of the strange things about the child pornography guidelines," said Assistant Federal Defender Lyn Hillman, who represents Lonnie Ray Hodnett. "I've had defendants on child porn charges (for whom) the guidelines would have ended up being lower if they had actually molested a child."...
UPDATE: In the comments and elsewhere, a number of folks have sensibly highlighted that the article referenced above is comparing apples and oranges in terms of the severity of the two offenses discussed. And, to avoid any misleading implications, I should point out that the federal guidelines in most cases will recommend longer sentences for offenders who have sex with children than for those who look at pictures of children having sex. Nevertheless, as the quote by the federal defender suggests, there are some instances in which looking at the wrong kind of pictures can get you as much or more federal time than engaging in the wrong kind of sex.
Also, for anyone interested in more perspectives on these important topics, consider this article about a federal sentencing for an on-line sexual solicitation and this article about a state sentencing of a coach having sex with an underage team member.
Death sentences continue to decline
As noted at TalkLeft and How Appealing, the Los Angeles Times has this article drawing from a new DPIC report indicating that the number of death sentences handed out in 2005 marked a new low in recent years. The LA Times article also effectively reviews other major death penalty developments in 2005, most of which suggest that we are continuing to see the death penalty slowly dying.
This press release provides more details about the DPIC report (which does not yet appear to be on-line). And below are a few of the posts in which I have previously spotlighted declines in death:
- The decline of death?
- The slowing pace of executions
- Death is definitely different this month
- More on the decline of death
- American cultures of life and cultures of death
- More on a new death penalty culture
UPDATE: The DPIC's year-end report is now available at this link. The report is rich with data and here is its conclusion:
America has become less comfortable with the use of the death penalty and more accepting of the sentence of life without parole as an alternative to capital punishment. Legislators, jurors, judges, and victims have shown greater interest in avoiding the risks, the costs, and the unpredictability of the death penalty when many of the same objectives can be accomplished with a sentence that is already widely used.
Death penalty numbers were generally down in 2005 and some states took action to eliminate the death penalty completely. Religious organizations, judges, conservative political leaders, and editorial writers from papers around the country raised new challenges to capital punishment.
There were some counter-trends as well. On the federal level, there was an expanded use of the death penalty and efforts in Congress to restrict further the capital appeals process. Nevertheless, public support is at its lowest point in the modern era and the problems that have caused this erosion in support continue to plague the system.
December 21, 2005
The new holiday fad: clemency debates
- This AP story details why "Actor Ethan Hawke is asking New Jersey's acting governor to grant clemency to a 65-year-old woman in prison for more than 16 years for murdering her boyfriend, a Trenton police officer."
- This AP story details why California's attorney general's office is opposing clemency for Charles Ray Allen, arguing that "that oldest convict on California's death row should be executed for the viciousness of his crimes despite his age and failing health."
- This story details why the attorney for "John Walker Lindh, the young Marin man who was captured while fighting for the Taliban in Afghanistan, has asked President Bush to commute his client's 20-year sentence."
Government arguing for 15+ years for Jamie Olis
Two months ago, as discussed here and here, the Fifth Circuit overturned the 24-year federal sentence of former Dynegy executive Jamie Olis. Resentencing is scheduled for January 5th, and yesterday the government filed a brief recommending that Olis still be sentenced to more than 15 years in prison. According to this Houston Chronicle piece, the government "lowered its estimated loss to between $20 million and $50 million in its brief, which called for Olis to be sentenced to at least 188 months."
Additional press coverage of the government's new sentencing calculation can be found in this AP story and this CFO.com story. If I can get my hands on the government's filing, which should be very interesting reading, I will be sure to post it.
UPDATE: I see here that Tom Kirkendall calls the government's new sentencing recommendation for Olis "an over-the-top and spiteful request." Also, Peter Henning here rightly notes that "whether the district court will accept that figure remains to be seen, and the case illustrates the key role that the loss calculation plays under the Guidelines for fraud cases."
A new round of Bush pardons
Thanks to this post at TalkLeft, I see that President Bush, just in time for holidays, has granted a new set of pardons. Details about the eleven individuals receiving the pardons and their crimes and sentences are available in this press release. Notably, more than half of these pardons are for crimes committed about forty years ago or longer.
Interestingly, three of the five pardons for more recent crimes go to persons convicted and sentences of drug dealing during the 1980s (and the drug being dealt in two of these cases was cocaine, while marijuana was involved in the other case). Along with Jeralyn at TalkLeft, I cannot help but wonder whether some special connections explain why these three particular drug dealers were the beneficiaries of pardons. (It should be recalled, however, as TalkLeft noted here that four of the persons receiving pardons in the last round of pardons were also drug offenders.)
This newspaper article from Colorado provides more details about Wendy St. Charles, who received a pardon from her 1984 conviction "for conspiracy to conduct a narcotics enterprise and distribution of cocaine." The article details that St. Charles is now a "licensed attorney who works for MDC Holdings, Inc., the largest Denver-based home-building firm" and that "Larry Mizel, chair of the MDC Holdings Inc., and his wife, Carol, are major supporters of the Republican Party and its candidates."
Related posts discussing previous batches of pardons from President Bush:
- More pardons from President Bush
- More (minor) pardons from President Bush
- More insights on the recent Bush pardons
- Bush's stingy pardon practice
- More pardon buzz
- Media criticism of Bush's pardon practice
- The Washington Post on Bush's pardons
Terrorism fears leads to sentence enhancement
Of course, the big legal debate these days over the war on terrorism concerns President Bush's authorization of warrantless surveillance. (Balkinization and Concurring Opinions and PrawfsBlawg and Orin Kerr at Volokh have great coverage.) But this story from San Diego highlights how terrorism concerns can also impact federal sentencing:
A federal judge took the unusual step yesterday of tripling the suggested sentence for a Somali community leader convicted of immigration crimes, saying the harsher sentence was justified because of national security concerns.
After Omar Abdi Mohamed declined to make a statement to the court, U.S. District Judge John Houston sentenced the self-described Muslim missionary to 18 months in prison. Mohamed has already served two years while awaiting the outcome of his case....
Mohamed, 45, was never charged with terrorism. He was convicted in two trials of six felony charges that he lied on visa and naturalization applications. He was acquitted of more serious charges, particularly that he lied during a citizenship interview about his association with the two charities in question, Global Relief Foundation and the Al-Haramain, which the U.S. government has linked to terrorist fundraising.
In explaining his departure from the sentencing guidelines, which suggest a six-month sentence, Houston said he was not focusing on whether Mohamed lied, but on the undisputed facts of the case. He said he found sufficient evidence that Mohamed received $300,000 from those terror-linked charities, regardless of whether he lied about it. "He was acquitted of lying about the receipt of money, but the evidence was clear that he received the money," Houston said. "In my mind, I can consider the receipt of money as affecting national security."
December 20, 2005
Sobering realities of race and the death penalty
Though the latest hot topics for debate over capital punishment concerns clemency and deterrence, the debates over race and the death penalty never go out of style. And the latest hot spot for these issues is Maryland, as evidenced by this Washington Post op-ed by former Maryland Governor Parris Glendening and this Baltimore Sun op-ed by Ray Paternoster who was the senior author of the 2003 Maryland Death Penalty Study (which can be accessed in full here).
Both op-eds are very interesting reads. In his piece, Glendening laments that the current state administration is failing to face up to "serious questions about the impact of race and geography in capital sentencing" in Maryland. In his piece, Paternoster reiterates the findings from his study that "race and geography were factors in the decisions that lead to death row," and he expresses disappointment that his study "has only fueled misunderstanding and polarized both sides of the debate about capital punishment in Maryland." (A discussion of similar issues can also be found to the north in this op-ed arguing that "New Jersey's capital punishment law has and continues to be applied in an absolutely inconsistent, arbitrary and irrational manner.")
Paternoster's commentary especially reinforce my sad and somewhat cynical conclusion that no one genuinely cares about the problems of racial disparity and discrimination in the application of the death penalty. It often seems that death penalty opponents raise race issues simply as another argument to support the abolition of capital punishment. Meanwhile, death penalty proponents often refuse to grapple seriously with race issues for fear that, practically speaking, any real effort to stamp out racial disparity in the administration of capital punishment could stamp out capital punishment altogether.
For a good overview of a number of race issues in the application of the death penalty, the materials here and here at the DPIC are quite informative (and depressing). The number I always find most remarkable and telling is that, of the 1000+ executions in the modern death penalty era, only 12 executions have been for crimes in which a white defendant murdered a black victim (roughly 1% of all executions), whereas 208 executions have been for crimes in which a black defendant murdered a white victim (roughly 20% of all executions).
Lots of interest around the blogosphere
Interesting times produce interesting posts at many of my favorite cyber-haunts:
- Over at blackprof, where there are lots of great recent posts on a range of topics, Dorothy Roberts has this astute commentary on the way in which the media covers "white" drug addiction and crime.
- Over at PrawfsBlawg, where there are lots of great recent posts on a range of topics, Will Baude has this follow-up commentary questioning the readiness with which Becker and Posner accept claims about the deterrent impact of capital punishment in the US.
- Over at the Federal Defender Blogs, where there are lots of great recent posts on a few topics, the Third Circuit Blog has this coverage of the important recent Third Circuit decision declaring invalid a significant new Bureau of Prisons regulation, and the Ninth Circuit Blog has this coverage of the important recent Ninth Circuit decision on Booker sentencing and review (previously discussed here).
News flash: "embarrassment is not in the sentencing guidelines"
Though the thickness of the federal sentencing guideline manual might suggest nothing is left out of guideline calculations, this article reports on a notable sentencing today in which the government's lawyer was quick to say "embarrassment is not in the sentencing guidelines." Here are some highlights from the rest of the story:
Anthony Doria, who founded the Vermont Law School and ran for the U.S. Senate, is headed to prison for defrauding a woman of $115,000. Doria was sentenced in federal court to one month in prison, five months of home confinement and three years of probation on federal tax evasion charges. He must also make restitution to his victim....
Prosecutors claimed Doria took the money from Barbara Umbrecht of Newport, N.H., in 1998 and 1999. She believed he was investing the money on her behalf. Umbrecht said she was disappointed with the sentence.
Doria's lawyer, Barbara O'Connor, had asked U.S. District Court Judge J. Garvan Murtha to allow Doria to serve his time in a prison medical center. "A jail term for Anthony Doria, at 78 years of age, seems unproductive," said O'Connor. She said the embarrassment caused by the charges was "extreme punishment."
Assistant U.S. Attorney Elizabeth Woodcock said "embarrassment is not in the sentencing guidelines." "Mr. Doria did nothing good for Mrs. Umbrecht," she said. "He wasn't investing her money, he wasn't even putting it in savings. He was spending it."
In other New England news, this interesting story about a federal case in Maine — evocatively headlined "Tearful pimp gets 11½ years" — reveals that, though there's no crying in baseball, there's sometimes a lot of crying at sentencing.
Appeal waivers and ineffective assistance
Today the Eleventh Circuit issued an interesting opinion discussing ineffective assistance of counsel for failure to pursue an appeal in Gomez-Diaz v. US, No. 04-11105 (11th Cir. Dec. 20, 2005) (available here). Here is how the opinion begins:
Francisco Gomez-Diaz filed a timely 28 U.S.C. § 2255 motion challenging his conviction and sentence on federal offenses. He alleged, among other things, that counsel appointed to represent him failed to file a notice of appeal as he requested.
It is well-settled that a lawyer who disregards instructions from his client to appeal has acted "in a manner that is professionally unreasonable." Roe v. Flores- Ortega, 528 U.S. 470, 477 (2000). Prejudice is presumed. Id. at 483. The issue on this appeal is whether that general rule applies in a case where the defendant signed, as part of his plea agreement, a limited waiver of his right to appeal his sentence. We hold that it does.
The echoes of Blakely where it all began
Today the newspaper The Columbian has this very interesting article, entitled "Judges eye more say over penalties," about the next wave of Blakely debate in Washington state. Here's how the article begins:
The state's Superior Court judges want back some of the discretion they had to impose stiff sentences for violent crimes before the U.S. Supreme Court took it away from them two years ago.
They want the 2006 Legislature to make Washington's mandatory sentencing guidelines nonbinding, and they seek authority to double the maximum sentence the guidelines allow in "exceptional" cases. Without that discretion, they say, they are being forced to mete out sentences far too lenient for some heinous crimes.
But a state commission is recommending that lawmakers reject the judges' request for new sentencing authority and nonbinding guidelines. The commission's majority says that could return Washington courts to the days before sentencing guidelines were enacted in the early 1980s, when judges in different parts of the state imposed widely varying sentences for the same crimes.
December 19, 2005
Further exploration of question "Is Capital Punishment Morally Required?"
Earlier this year, Cass Sunstein and Adrian Vermeule circulated a provocative article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs" (which I first noted here and critiqued here). I now see from this page that the paper, along with critical responses and a reply, will fill much of the December issue of the Stanford Law Review.
As first noted in this post, Carol Steiker had posted on SSRN a few weeks ago her response: No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty. And now I see SSRN also has the contribution from John Donohue and Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate.
Serious fans of serious debate over the death penalty should be sure to read all of these Stanford Law Review pieces (as well as, of course, the Sunstein and Vermeule reply, which I cannot yet find on-line). Also, given the SLR's amazing October issue, which I fawned over here and here and here, I may start thinking of SLR as a short-hand for the Sentencing Law Review.
UPDATE: Coincidentally, today over at The Becker-Posner Blog, Richard Posner has a post on "The Economics of Capital Punishment," and Gary Becker follows with a post entitled "More on the Economics of Capital Punishment." Both posts seem to support capital punishment because of its purported deterrent impact.
I must say that I find the posts by both Posner and Becker to be surprisingly simplistic. Neither of them seriously engages with the robust empirical debate over the evidence of capital punishment's purported deterrent effect. Even more disconcertingly, neither explains or even explores why capital punishment should be limited to murderers (and not extended, for example, to drunk drivers) if its deterrent effect is a sufficient condition for its use. As I first explained in this post, I find the deterrence arguments especially challenging when we consider drunk driving fatalities.
Statistics show that there are over 17,000 alcohol-related driving fatalities each year (data here), and I have to think we could significantly reduce that number by executing just a few drunk drivers. Drunk driving seems like a much more deterrable crime than some other killings, and recent history suggests that laws and public awareness can have a significant impact on alcohol-related driving fatalities.)
Are Posner and Becker prepared to advocate the execution of drunk drivers because of the death penalty's likely deterrent impact in this setting (at least in states like California, Florida, and Texas that have a high number of alcohol-related driving fatalities)? Becker closes his post by claiming "the capital punishment debate comes down in essentials to a debate over deterrence," but thinking about this claim through the lens of drunk driving fatalities really tests this debatable assertion.
The limited impact of Blakely in Apprendi-land
Back in August, as detailed here and here, the New Jersey Supreme Court in Natale applied Blakely to the state's presumptive sentencing scheme and then adopted its own version of the Booker remedy by making the state's sentencing scheme advisory rather than mandatory. Today, in this effective article, the Asbury Park Press reports the unsurprising news that, in the wake of Natale, most state resentencings have left original sentences undisturbed:
Those who work in the criminal justice system, including judges, attorneys and corrections officers — who must transport the defendants from state prisons to the courthouses where they were originally sentenced — have been expending time and resources on the resentencings that, for the most part, are resulting in prison terms that are unchanged.
"They come here fascinated, thinking, "We're going to get our sentences reduced,' Deputy Public Defender Frank Gonzalez said of the defendants who have been brought back to court in Ocean County to be resentenced. "It has not been as fruitful or beneficial to the defendants as we had anticipated," said Gonzalez, who oversees the Public Defender's Office in Ocean County. "The bottom line is, we have not gotten much out of these resentencings, if anything at all."