December 31, 2005
Major sentencing developments for second half of 2005
My assembly (via posts of note) of sentencing highlights the first half of the 2005 was, not surprisingly, dominated by the Booker decision and its aftermath. The highlights from the second half of 2005 show more variety, particularly because of the SCOTUS transitions:
- Justice O'Connor retiring; what will her replacement think of Harris and Almendarez-Torres?
- Considering O'Connor's capital sentencing legacy
- Judge Roberts round-up
- Huge Blakely day in North Carolina
- The evolution of white-collar sentencing
- Sentencing from the halls of Congress
- Judicial federalism: diverse state high court Blakely rulings
- Alabama House seeks mandatory castration(!) for certain sex offenders
- Iowa Supreme Court upholds broad sex offender residency restrictions
- Trying to parse the USSC's latest data
- An engaging (but incomplete) habeas debate
- Justice Stevens speaks out against death penalty
- Judge Roberts on capital punishment
- Roberts, the cert pool, and sentencing jurisprudence
- Pondering the next SCOTUS Blakely/Booker case
- DOJ's Orwellian defense of mandatory minimum guidelines
- Brave New Justice and sentencing issues
- Reefer madness in the 8th Circuit
- District court tonic for the Booker blues
- A post-Booker burden of proof primer
- CJ Rehnquist has died
- The current SCOTUS sentencing head-count
- Roberts nominated to be Chief
- Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
- Assailing the lack of criminal justice questions at the Roberts hearing
- FSR Issue asks: Is a Booker Fix Needed?
- Is the Booker remedy here to stay?
- Invigorating the sentencing process after Booker
- Some September sentencing highlights
- Fantastic NY Times piece on lifers
- A bit of Booker fix buzz
- My Booker data "wish list"
- What will a Justice Harriet Miers mean for sentencing jurisprudence?
- Miers, religion, and criminal justice issues
- First opinion of Roberts Court is a win for a criminal defendant! On habeas!
- SCOTUS taking up Blakely harmless error issue!
- State Blakely mess: the split over Blakely's application to presumptive sentencing
- Does Blakely draw a bright line? What is that line?
- Miers is out, who's next?
- Alito it is ... this should get interesting
- Why some defendants hope Alito is like Scalia
- A terrific examination of Alito and criminal law
- American cultures of life and cultures of death
- Tenth Circuit argument in Angelos mandatory minimum case
- Did Texas execute an innocent man?
- More buzzing about possible wrongful execution(s)
- December dramas for the death penalty
- Ground zero for post-Booker crack/powder debate
- Pondering Tookie's fate, Schwarzenegger's dilemma and punishment theory
- Schwarzenegger denies Tookie Williams clemency
- Death sentences continue to decline
- Further exploration of question "Is Capital Punishment Morally Required?"
- The number 1,000,000 in sentencing perspective
- Booker discussion topic: are departures obsolete?
- A Booker Festivus for the rest of us
- Recapping a busy first half of the last month of 2005
- More academic arguments for Blakely retroactivity
- Latest FSR issue on Blakely in the States
- Blakely at 18 months: a recap of state high court rulings
More review of the capital year
In this post, I noted an array of items reviewing death penalty developments in 2005 (of which the DPIC report discussed here is the most comprehensive). Today I see that the Washington Post now has this insightful editorial discussing "The Year in Death." The piece discusses the "signs — albeit inconsistent signs — of the death penalty's decline." (For additional details on these signs, check out items and links in this post.)
A thorough review of GWB's pardon work
As a follow-up to President George Bush's recent holiday grants of 11 more pardons, USAToday ran this effective article reviewing "the 69 people pardoned and two people whose sentences have been commuted during Bush's five years in office." The article, which includes this informative companion piece providing "A history of pardons," has this assessment of GWB's efforts:
President Bush demonstrated again this month that penitent lawbreakers have little chance of gaining a pardon unless their crimes were non-violent and occurred years before he took office. Political connections probably aren't much help, but Texans seem to have a bit of an advantage....
Some legal analysts say Bush's infrequent use of the authority given to him by the Constitution is a missed opportunity. He has not used clemency to signal displeasure with long mandatory-minimum sentences or to highlight the rehabilitation of people who emerged from prison to contribute to their communities.
"He's being careful to the point of trivializing his pardon power," says Margaret Colgate Love, the federal pardons attorney from 1990 to 1997. "If he did absolutely nothing, he would be criticized as being stingy." The pardons he has granted for old, innocuous cases, she says, are "the least he can do. They say nothing."
Related posts discussing President Bush's pardon work:
- A new round of Bush pardons
- 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
Major sentencing developments for first half of 2005
Last year I celebrated the close of 2004 with this narrative sentencing year in review. Amazingly, 2005 has proven to be an even more dynamic and interesting sentencing year than 2004 (which I did not think was possible), and I am certain I cannot do it justice in a short narrative. Instead, I will close out the year with a month-by-month post review of 2005 sentencing highlights (and lowlights).
As I started to assemble this list, I discovered that even abridged highlights from nearly two thousand posts in 2005 would run very long. Thus, I have divided the list into two posts. Below are highlights for the first half of the year; the second-half highlights will appear in a follow-up post:
- Suggesting sentencing resolutions
- Gonzales hearing highlights (torture-free)
- SCOTUS speaks: Booker and Fanfan have arrived!!
- Collected Booker commentary
- More collected Booker (and Wilson) commentary
- Always remember to show your work
- Requiring proof beyond a reasonable doubt in any legislative fix
- Is there a "new right" on criminal sentencing issues?
- The Booker battles: questions of perspective
- Ex post facto headaches from any legislative response to Booker
- Gearing up for Booker hearing week
- House hearing highlights
- Heading home after a great DC week (includes USSC hearing highlights)
- Sorting through the Circuit circus
- Songs in the key of 3553
- Criminal justice, constitutional law, federalism and hot button issues
- SCOTUS declares unconstitutional juvenile death penalty in Roper
- More Roper thoughts and the development of state constitutional law
- Three-ring circus ... err, three-way circuit split
- SCOTUS rules in Shepard (and muddies the prior conviction waters)
- Summarizing Shepard (and seeking state insights)
- A potent argument for Apprendi's retroactivity
- State debates over whether to Blakely-ize or Booker-ize
- Booker and crack/powder cocaine sentencing
- Shaming, remorse, apologies and victims
- Retroactivity contrasts and contentions
- Booker and Blakely stories shifting to warp speed
- Puzzled by Tennessee's Blakely waltz
- Details concerning the brewing Booker fix
- Questions about the brewing Booker fix
- Still more voices speaking out against brewing Booker fix
- Sentencing world in warp speed
- State of state Blakely fixes and high court rulings
- More evidence of the decline of death
- Sex (offenders) in the city
- Is the Booker plain error split now finally cert. worthy?
- Further reflections on burdens of proof and acquitted conduct
- Reasons for rooting for criminal justice federalism
- The waiting is the hardest part...
- DOJ planning national sex offender registry (note the copious comments)
- The Fool(ish bills) on the Hill
- SG is seeking cert. on plain error!
- A capital waste of time?
- A quick sentencing perspective on a possible new Justice
- A Blakely blank spot in sentencing reform principles
- California Supreme Court dodges Blakely
- SCOTUS refuses to take on Booker plain error
- Not now or not ever on Booker plain error?
- AG Gonzales calls for a Booker fix
- Background on AG Gonzales' proposed Booker fix
- Questions about AG Gonzales' speech
- Initial end-of-Term reflections on criminal justice and sentencing
December 30, 2005
Intricate Ninth Circuit ruling on consecutive sentencing
To ring out the year, the Ninth Circuit issued today a long and intricate opinion on consecutive sentencing in US v. Fifield, No. 04-30299 (9th Cir. Dec. 30, 2005) (available here). Fifield covers lots of ground, including some Blakely/Booker issues. Here's how it starts:
On appeal, Fifield presents three questions relating to the district court's decision to make the federal sentences run consecutively to the state sentences. First, he argues that under Federal Rule of Criminal Procedure 32, he was entitled to specific notice that the district court was considering ordering the sentences to run consecutively. Second, he contends that the district court violated 18 U.S.C. §§ 3584 and 3553 by failing to state in open court its reasons for deciding to run the sentences consecutively. Third, he maintains that the decision to run the sentences consecutively violated his Sixth Amendment right to a jury trial because the decision was based on facts that were neither found by a jury nor admitted.
We disagree with all three procedural contentions.
A Blakely threesome from the Oregon Supreme Court
The recent FSR issue on Blakely in the States and this list of state Blakely rulings highlight that, despite all the Booker attention, the most interesting (and intricate) sentencing story of 2005 concerned the many dynamic state Blakely developments. To cap off a remarkable state sentencing year, the Oregon Supreme Court today issued three important and interesting decisions addressing various constitutional issues that involve what might be called "second generation" Blakely claims.
The Blakely threesome from Oregon Supreme Court — State v. Heilman, No. S51479 (Or. Dec. 30, 2005) (available here) and State v. Upton, No. S52316 (Or. Dec. 30, 2005) (available here) and State v. Sawatzky, S52332 (Or. Dec. 30, 2005) (available here) — covers a wide array of important issues and defy brief summaries. My quick review suggests that the Court is breaking important (and perhaps new) ground concerning, inter alia, defendant's rights of notice and the application of the ex post facto and double jeopardy principles in the post-Blakely world. Significantly, in this ménage à trois of high court opinions coming from the house of Oregon , the defendant's constitutional claims consistently get little love (although they are handled with care).
The importance and power of POs and PSRs
Everyone involved in federal sentencing proceedings knows well the importance and power of federal probation officers (POs) through their work in preparing presentence reports (PSRs). As this FJC item notes, though "the judge makes the final call on a sentence, he or she depends heavily on the PO's presentence report and sentencing recommendation." Even a few ivory tower academics have taken note of POs and PSRs (see article here at pp. 450-54), although presentencing work is arguably the most important and least examined aspect of the federal sentencing process.
Thanks to this interesting article in the New York Times about the high-profile criminal case involving the Staten Island ferry crash in October 2003, the importance and power of POs and PSRs seems to be reaching new heights. Here are some highlights from the article:
A high-ranking federal probation official has recommended sharply reduced prison terms for two men who pleaded guilty in the Staten Island ferry crash in October 2003 — three months for the assistant captain, Richard J. Smith, and six months for his supervisor, Patrick Ryan — according to papers released yesterday.
The official, Chief Probation Officer Tony Garoppolo, found the "lion's share" of blame in the crash, which left 11 people dead and injured dozens more, rests with the senior management at the city's Department of Transportation, not with Mr. Smith, who passed out at the helm, or Mr. Ryan, the director of ferry operations....
The release of the analysis and recommendations was highly unusual.... Officials at the Department of Transportation declined to comment. But the city's Law Department said in a statement that it "strongly disagrees with the conclusory and many unsupported 'findings' " in the report, which it said "were clearly based on incomplete and one-sided information."
"The Eighth Amendment is a jurisprudential train wreck"
Benjamin Wittes, who writes editors for the Washington Post specializing in legal affairs, has this terrific new article, entitled, "What is cruel and unusual?", appearing in the December 2005-January 2006 issue of Policy Review. As the title suggests, the piece examines the Supreme Court's Eighth Amendment jurisprudence, and the article's first line (which is the title of this post) leaves little doubt as to Wittes' views of the High Court's work in this area. Here is the full text of the first paragraph of Wittes' article:
The Eighth Amendment is a jurisprudential train wreck. Its proudly humane language banning "cruel and unusual punishments" may remain among the Bill of Rights' most famous sound bites, but nobody today has the faintest clue what it means. The reason is as simple as it is sad: The Supreme Court's case law has left the amendment without coherent meaning. No principle guides its reach. No methodology solemnly pronounced in any case do the justices predictably follow in the next. A punishment upheld today can be, without alteration, struck down tomorrow with no justice even admitting that his or her mind has changed. The justices no longer even pretend to examine whether a punishment offends the amendment's textual prohibition. Instead they apply perhaps the single most impressionistic test ever devised by the court: whether the challenged practice has run afoul of "the evolving standards of decency that mark the progress of a maturing society." Unsurprisingly, nine judges of wildly different politics, temperaments, and backgrounds do not generally agree on the standards or the methodology for assessing society's maturation, much less its substance. As a consequence, more than two centuries after its incorporation into the Constitution, the amendment has been rendered nothing more than a vehicle to remove from the policymaking arena punitive practices that offend a majority of the court at any moment in time.
Interesting capital reviews in California and Texas
In addition to the strong work of DPIC reviewing death penalty developments in 2005, interesting aspects of the year in capital punishment in California and Texas is effectively examined through a number of other helpful sources:
- Over at Criminal Appeal, Jonathan Soglin here provides a comprehensive review of the 2005 work of the California Supreme Court in death penalty cases. He details that the court "issued decisions in 26 death penalty appeals, affirming all 26 death sentences."
- The Dallas Morning News today has this fascinating article, entitled "Death penalty losing capital: Sentences decline in Dallas, state, nation amid new limits, alternatives." The article is filled with interesting tidbits of information about the death penalty in Texas. Consider:
In Texas, death sentences have dropped from 37 in 1999 to 15 in 2005, the fewest additional inmates on death row since 1991....
Intentional or not, the decline in death penalty cases has saved Dallas County taxpayers about $1 million in trial costs this year, according to county estimates based on the county's historic trend of five such cases a year.
December 29, 2005
Blakely at 18 months: a recap of state high court rulings
To celebrate the 18-month anniversary of the Blakely decision (which was this past Saturday), I have updated my list of chief state Supreme Court rulings on Blakely's applicability to particular state sentencing systems. Dividing the rulings by whether Blakely was applied or dodged, we now have:
STATE HIGH COURT RULINGS FINDING BLAKELY IMPACTING STATE SENTENCING
Minnesota: Minnesota Supreme Court orders Blakely briefing, reporting on Minnesota v. Shattuck (Minn. Dec. 16, 2004). UPDATE: A number of hawk-eyed readers rightly reminded me that I should have listed here the main follow-up decision in Shattuck: Minnesota Supreme Court finishes up some important Blakely work, reporting on State v. Shattuck (Minn. Aug 18, 2005), amended (Oct. 6, 2005).
Oregon: Oregon Supreme Court decides Dilts (and ducks issues), reporting on Oregon v. Dilts (Or. Dec. 16, 2004).
STATE HIGH COURT RULINGS FINDING BLAKELY NOT IMPACTING STATE SENTENCING
New Mexico: New Mexico Supreme Court deepens state split over Blakely, reporting on New Mexico v. Lopez (N.M. Oct. 14, 2005).
New York: New York's highest court upholds state's felony offender law!, reporting on People v. Rivera (N.Y. June 9, 2005).
Tennessee: Tennessee dodges Blakely, so says divided state supreme court, reporting on Tennessee v. Gomez (Tenn. Apr. 15, 2005).
In addition to these 17 rulings, major Blakely cases have been handed down in Alaska by its intermediate court (see here and here), and leading cases are still in the works in Michigan and Ohio. There may be significant on-going Blakely litigation in a number of other states as well.
I suspect that the stories of Booker in the federal system will continue to capture most of the headlines (and scholarly commentary), especially as we approach the one-year anniversary of the Booker decision. Nevertheless, as evidenced by the recent FSR issue on Blakely in the States, the dynamic state Blakely developments is really the most interesting on-going sentencing story. And, for that reason, I am pleased to be playing a role in a future issue of the Ohio State Journal of Criminal Law that is to be focused on Blakely in the states.
A busy sentencing day in the circuits
Proving yet again that they always earn their pay, circuit judges are not taking a break from issuing notable sentencing rulings this holiday week. Today, in addition to the 11th Circuit's work on harmless error, I now see these additional rulings:
From the Third Circuit: US v. Booth, No. 03-3893 (3d Cir. Dec. 29, 2005) (available here), discusses acceptance of responsibility and ineffective assistance of counsel.
From the Fifth Circuit: US v. Alvarado-Santilano, No. 05-10261 (5th Cir. Dec. 29, 2005) (available here), discusses intricate criminal history issues. UPDATE: And US v. Hardin, No. 05-50312 (5th Cir. Dec. 29, 2005) (available here) discusses the calculation of drug quantities.
From the Seventh Circuit: US v. Hankton, No. 03-2345 (7th Cir. Dec. 29, 2005) (available here), discusses the calculation of drug quantities, role enhancements and double-counting claims.
From the Tenth Circuit: US v. Moreno-Trevino, No. 04-4144 (10th Cir. Dec. 28, 2005) (available here), discusses application of the "additional point" for acceptance of responsibility (and cites a recent Federal Sentencing Reporter article along the way).
Another notable Booker harmless error ruling from 11th Circuit
The Eleventh Circuit has been tough on defendants claiming plain error when a Booker error was not preserved. But, as evidenced by its Glover ruling last month, the Eleventh Circuit has been more defendant-friendly when a Booker error was preserved and the government claims the error is harmless. This trend continues with the Circuit's ruling today in US v. Cain, No. 04-15754 (11th Cir. Dec. 29, 2005) (available here).
In Cain, the Court is able to cover a lot of Booker pipeline basics in the course of refusing to find a Booker error harmless based solely on a sentence at the top of an applicable guidelines range. Here is the introduction:
James Hubert Cain appeals his conviction and 41-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The issue of first impression we address is whether a district court's constitutional error under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), is harmless beyond a reasonable doubt where the district court (1) sentences the defendant to the maximum Guidelines range but (2) provides no indication of whether its sentence would have been the same or higher in an advisory Guidelines system. We affirm Cain's conviction, but we vacate his sentence and remand for resentencing consistent with Booker.
Well, now the Alito nomination is in trouble...
In the wake of the Harriet Miers' nomination being brought down by conservatives, could the Sam Alito nomination be brought down by death row inmates? I am inspired to ask this silly question by this article, entitled "Death Row Inmate Campaigns Against Alito's Nomination to Court." Here is the introduction:
You might think Antuan "Tony" Bronshtein would be grateful to Judge Samuel A. Alito, President Bush's nominee to replace Justice Sandra Day O'Connor on the U.S. Supreme Court. After all, Bronshtein, a convicted killer and Pennsylvania death row inmate, has a new lease on life, at least temporarily, thanks to Alito's controversial decision as a federal appeals judge to set aside Bronshtein's death sentence.
But he is not grateful. Instead, Bronshtein is campaigning to block Alito's Supreme Court nomination. In letters written from his prison cell to members of the U.S. Senate and the press, the Soviet-born convict argues that Alito violated established law, his own writings, and Bronshtein's civil rights — all to burnish his reputation as a hard line, pro-death penalty judge and improve his Supreme Court prospects.
Thanks for the link to How Appealing, where SCOTUS fans gearing up for the Alito hearings next month will find a lot of additional interesting articles here and here. And, relatedly, this CNN.com discussion of Roberts work as Chief is intriguing.
The state of shaming punishments
The Chicago Tribune today has this effective article exploring the rationales, appropriateness and efficacy of shaming punishments. Here are just some highlights from an interesting piece, which is full of anecdotes on creative sentencing and worthy of a full read:
"The only reason for the continued use [of these sentences] is that we have had success," said Michael Cicconetti, a judge in Painesville, Ohio, who has handed out a lot of such sentences. "We don't see these people back. For some people jail means nothing. For them it's three hots and a cot."...
James Cohen, a professor at the Fordham University School of Law, said there has been a trend toward "shaming" sentences for about 15 years, but he added that such punishment is a tradition in the U.S. "There is a long, long history of shaming people," Cohen said, noting the colonial practice of putting people in stocks on village greens. He said such "punishment" sentences might have become more common because there has been a trend away from rehabilitation programs for criminals....
Cicconetti said he is not sure whether he's a trendsetter in creative sentencing. Such sentences are issued by judges "almost every day," he said.
Below are some prior posts discussing and debating shaming punishments were :
- For Shame ... I mean, Against Shame
- Reconsidering shame
- Ain't that a shame
- A shame-full proposal
- Shaming, remorse, apologies and victims
- Creative (and effective?) shaming
- More on the shame game
- The real shame about shaming punishments
Making sure crime does not pay (in book profits)
Earlier this month, as detailed here, former OSU marketing professor Roger Blackwell was sentenced to six years in federal prison for his role in an insider-trading scheme. This newspaper article details an interesting follow-up ruling in the case: the sentencing judge has now "reaffirmed his decision to prohibit Roger D. Blackwell from making money by writing a book about Blackwell's insider-trading crimes" while on supervised release. Here are more details on the ruling (which I cannot yet find on-line):
In a seven-page order issued Tuesday, U.S. District Judge James L. Graham rejected Blackwell's attorneys' objections to the ban. They objected on the grounds that it was not part of standard sentencing guidelines and violated the First Amendment....
Graham said the ban, which also includes work on movies or other media products, is appropriate because Blackwell’s crimes "involve breaches of his fiduciary duty and betrayal of the trust and confidence reposed in him."... Graham said the former professor "is free to continue to proclaim his innocence to whomever will listen," but should not be able to reap any financial reward from his crimes while in supervised release....
Graham noted that the ban he ordered "is narrowly tailored to achieve the goals of rehabilitation and deterrence" and doesn't halt Blackwell’s career as an author of business textbooks or publications about marketing.
December 28, 2005
Pennsylvania court establishes standard for applying Atkins
As detailed in this article, the Pennsylvania Supreme Court on Tuesday "set standards by which murder defendants can prove they are mentally retarded and avoid the death penalty, but the high court also urged the General Assembly to act on its own." These standards were announced in Commonwealth v. Miller, No. 399 (Pa. Dec. 27, 2005) (available here). Miller is a nuanced and intricate opinion, and it includes this notable dodge:
We need not reach the question of whether a mental retardation claim is to be resolved by a judge or jury at trial, since the case before us involves the proper procedure for resolution of an Atkins claim on collateral review.
Guideline enhancement data from USSC
Interestingly, the US Sentencing Commission's Booker page now has two new data reports (available here), but they are likely to be of interest only to guideline data junkies or to those who might urge a "Blakely-ization" response by Congress to Booker. Here is the USSC's description of the new data:
Guideline Application Frequencies for Fiscal Year 2003. The materials contained herein are basically two comprehensive data tables. The first [at this link], entitled Use of Guidelines and Specific Offense Characteristics: Fiscal Year 2003, details the use of each guideline, alternative base offense level, and Specific Offense Characteristic (SOC) in Fiscal Year 2003. The second [at this link], entitled Chapter Three Adjustments, Use of Specific Offense Characteristics, Upward Departures and Trial Rates: Fiscal Year 2003, gives the number and percentage of cases involving the use of the pertinent guidelines sections.
Even putting aside that this data is two years old, for anyone not steeped in guideline minutiae, these tables will be as mysterious as they are mind-numbing. But true sentencing nerds should realize that these tables detail all the enhancements based on judicial fact-finding applied under the guidelines in Fiscal Year 2003. Or, put differently, these tables show all the enhancements in FY 2003 that, unless based on facts found by a jury or admitted by the defendant, were imposed in violation of the Sixth Amendment rights applied in Blakely and Booker.
The USSC's release of this data now is quite peculiar and also tantalizing. Might it suggest the USSC is actively considering whether the guidelines could be "Blakely-ized"? Might it suggest that an interested person in the legislative or executive branch has sought the release of this data? Or might it suggest that the USSC is still focused on now-dated Blakely-related data issues when the USSC should be more concerned with more pressing Booker-related data issues (such as those outlined in my formal letter to the USSC or in my Booker data wish list)?
Seventh Circuit upholds long sentence for "moderate quantity" of crack
Proving yet again that reasonableness review seems unlikely to have much bite (at least for defendants seeking to challenge long sentences), the Seventh Circuit today in US vs. Lister, No. 04-4304 (7th Cir. Dec. 28, 2005) (available here) upheld as reasonable a sentence of nearly 40 years in a drug case involving, in the Seventh Circuit's words, only a "moderate quantity" of crack.
Lister covers a number of issues, including acceptance of responsibility and aspects of reasonableness review. The Lister court ultimately concluded that the district judge sufficiently justified a long (within-guideline) sentence in the case. But it did add this interesting comment along the way:
Because this sentence was based on an adequate consideration of the § 3553(a) factors, we cannot say that it is unreasonable. We take this opportunity, however, to respectfully remind the district court that 1.84 kilograms of cocaine base is a moderate quantity compared to those higher amounts contemplated by 21 U.S.C. § 841. Yet, in comparison, the 405 month sentence nearly reaches the statutory maximum. Such a term leaves little room for the proportional sentencing that motivated Congress to pass the sentencing guidelines, a motivation recognized and supported by the Supreme Court's second holding of Booker.
Plea deal for Enron CAO Causey
As detailed in stories from the Washington Post and the Houston Chronicle, Enron's ex-Chief Accounting Officer Richard Causey is expected to plead guilty on Wednesday as part of a plea deal, three weeks before he was to face trial on fraud charges along with Enron's former top two officials, Ken Lay and Jeff Skilling. The blogosphere already includes great commentary on this development from TalkLeft and Houston's Clear Thinkers.
Of course, this news is fundamentally a sentencing story. In the wake of the long sentences given to the likes of Bernie Ebbers and the Rigases and other fraud offenders after losing at trial, Causey had to think a loss at trial could likely result in a sentence of 20+ years. By copping a plea, Causey now can assess his likely sentence in years, rather than decades.
The basic terms and sentencing provisions of Causey's plea deal, which are not yet public, should be quite interesting. And what this might mean for the scheduled January 17 trial of Ken Lay and Jeff Skilling remains to be seen.
UPDATE: Ellen Podgor over at White Collar Crime Prof Blog has this interesting post inquiring: "The Causey Plea - Why So Late?"
ADDITIONAL UPDATE: This NY Times report on Causey's plea today indicates that he "will face a sentence of seven years that could be reduced by a maximum up to two years depending on his cooperation at trial. He also agreed to pay a $1.25 million fine." Ellen Podgor adds more comments on the deal here. And now I see TalkLeft has some great additional coverage here.
Too old and sick to die?
As detailed in this AP article, Clarence Ray Allen, the "75-year-old condemned inmate with a January 17 execution date, has asked the California Supreme Court to block his death penalty on grounds of his advanced age and serious illness." Interestingly, as the article notes, the California Supreme Court has ordered state prosecutors by next week to respond to Allen's claim that it is "unconstitutional cruel and unusual punishment to execute a person of his age and infirmities."
As the AP article also notes, Allen's lawyers have made similar arguments in his clemency petition to Governor Arnold Schwarzenegger. A helpful reader has sent me the clemency papers in the Allen case, which you can download below. They make for interesting reading.
Clemency petition: Download allen_petition_for_clemency.doc
Clemency opposition: Download allen_opposition_to_clemency_petition.rtf
Reply to opposition: Download allen_reply_petition_clemency.pdf
UPDATE: This Sacramento Bee article notes that Allen's attorneys are claiming that "State executioners will be violating the Americans with Disabilities Act if they make the aged and infirm Clarence Ray Allen walk the final steps to his death." The also also discusses, and provides this link to, a letter supporting clemency that "Schwarzenegger received from former California Supreme Court Justice Joseph R. Grodin who, as a member of the panel in 1986, wrote the opinion upholding the defendant's death sentence."
Fifth Circuit on appeal waivers and terrorist enhancement
It seems that December is a month for notable circuit court discussions of appeal waivers (see here and here) and terrorism enhancements (see here). The Fifth Circuit gets into the act on both fronts with US vs. Harris, No. 03-51139 (5th Cir. Dec. 27, 2005) (available here).
The defendant in Harris wins a battle but loses the war: the panel concludes that the defendant did not waive his right to appeal the terrorism enhancement he received in the calculation of his guideline range, but then concludes that such an enhancement was legally proper.
December 27, 2005
The curious world of violent crimes
As I have noted before here and here, how a "crime of violence" or a "violent felony" is interpreted under federal provisions can often be very important and very curious. Moreover, nearly every day some circuit court is wrestling with this issue; today brought two circuit opinions of note in this arena:
- The Third Circuit in US v. Bowers, No. 05-4908 (3d Cir. Dec. 27, 2005) (available here), wades into a circuit split and concludes "that the crime of felon in possession is not a crime of violence within the meaning of § 3156(a)(4)" (which concerns pretrial detention).
- The Ninth Circuit in US v. Ladwig, No. 04-30393 (9th Cir. Dec. 27, 2005) (available here), holds that a felony conviction for making a harassing telephone call under Washington state law qualifies as a "violent felony" for purposes of the sentencing enhancements in the Armed Career Criminal Act, 18 U.S.C. § 924(e).
Amicus brief in crack sentencing appeal
As detailed in posts linked here and here and here, the First Circuit has taken center stage in the on-going post-Booker debate over the federal sentencing disparity between crack and powder cocaine. The First Circuit recently heard oral argument on the issue earlier this month (discussed here and here and here), and the government has also appealed the non-guideline sentence in US v. Perry where Judge Smith extensively explained his justification for not applying the 100:1 crack/powder ratio in the guidelines.
Professor Mark Osler, upon the invitation of the ACLU of Rhode Island, has authored a draft amicus brief to be filed in the First Circuit in the Perry case. I have assisted with the brief, and Mark is hopeful that some other academics might join me in signing on before the brief is filed next week. This amicus brief is available for downloading below, and here is the summary of the argument:
This court should decline the government's invitation to create new law contrary to statutory requirements and Supreme Court precedent. The sentencing court, relying on the guidance of the sentencing commission, concluded that the guidelines overstate the seriousness of crack offenses relative to powder cocaine offenses, then acted on that conclusion. While the government is unhappy with the outcome, the sentencing court committed no error in following statutory direction and the plain meaning of the Supreme Court in Booker v. United States, 125 S. Ct. 738 (2005).
The government wrongly construes the standard of reasonableness to require elevating the perceived intent of Congress over the plain text of 18 U.S.C. § 3553(a), which the Booker Court identified as the guide for district court sentencing decisions and for circuit court review of whether a sentence is reasonable. A careful examination of 18 U.S.C. § 3553(a) makes clear that the statute not only allows, but requires an independent judicial evaluation of the guidelines' assessment of the "seriousness of the offense" and also requires district judges to take steps to "avoid unwarranted sentencing disparities." That is exactly what Judge Smith did in this case.
The government asks this Court to expand the ambit of reasonableness review to create a universal and broad rule that it is improper for district courts to countenance a particular sentencing consideration (seriousness of crack cocaine offenses relative to powder cocaine offenses). Accepting the government's invitation to turn reasonableness review into a debate over sentencing policy would fly in the face of the Supreme Court's admonition to the Courts of Appeal not to make such broad rulings, and would risk a de facto recurrence of those circumstances which caused the Supreme Court to strike down mandatory sentencing guidelines in the first place.
Where an "eye for an eye" is taken literally
A thoughtful reader sent me this interesting article on a notable international sentencing case:
The lawyer for an Indian migrant worker sentenced to have his eye gouged out as punishment by a Saudi Arabian court said he has launched a new appeal against the verdict.....
New Delhi announced on Friday it had sent a "mercy petition" calling on Riyadh to pardon the worker, Puthen Veetil Abdul Latheef Noushad, sentenced for blinding a Saudi national in 2003....
Under Saudi law, if the appeals court confirms the verdict, the supreme court must then look at the verdict, which, if approved, can only be carried out following a decision by the king, Mr Mutawa said.
Noushad had been working at a petrol pump in Dammam on the Saudi east coast since 1995. He had a fight with a Saudi customer over payment in April 2003 that put him in jail. The Saudi man later lost his eyesight, but the Indian said it was not because of the injuries he inflicted, and that he had acted in self-defence....
Saudi Arabia applies a strict form of Islam, which includes also meting out the death penalty for murder, rape, apostasy, armed robbery and drug trafficking, and cutting hands for theft. Public flogging and stoning to death are the penalties for extramarital sexual relations.
Holiday weekend highlights
Proving yet again that the calender does not slow down sentencing developments (or an obsessive blogger), here are some highlights from the long holiday weekend:
- The Blakely earthquake hits Vermont
- Interesting opinion on the right of victims to allocute at sentencing
- Christmas clemency and pardon stories
- Reviewing Alito's work in criminal cases
- Seeking end of year "best" "most" "top" ideas and nominations
- A Booker Festivus for the rest of us
December 26, 2005
Legal Times year-end sentencing commentary
The latest issue of Legal Times, dated today, provides a Year in Review for 2005. The issue includes this group of commentaries asking "Have We Learned Anything?" in which "practitioners and professors look back at what the last 12 months have taught us."
I was kindly asked to comment on sentencing developments in 2005, and I wrote a short piece that runs under the title of "Same Old Sentencing." Though you need a subscription to get access to the full commentary, the teaser at Legal Times highlights my theme:
As 2005 draws to a close, Douglas Berman points out a broader and perhaps more important lesson has emerged from the aftermath of U.S. v. Booker — namely that sentencing developments are often influenced more by sentencing culture than by sentencing doctrine.
Around the blogosphere
Even on the tail end of a long holiday weekend, the blogosphere provides plenty of interest for criminal justice fans:
- CrimProf Blog notes here that its own Mark Godsey will be on Larry King Live tonight at 9pm to talk about a remarkable DNA exoneration.
- White Collar Crim Prof Blog explores here whether, with a trial approaching, former Enron Chief Accounting Officer Richard Causey might be about to plead guilty.
- How Appealing links here to a number of interesting stories about death penalty developments in California.
- SCOTUSblog notes here that it has filed a petition seeking cert. on an interesting little sentencing issue (not involving Blakely/Booker) that has divided the circuits.
- Over at the Federal Defender Blogs there are a number of new interesting posts on recent circuit rulings, especially at the always active Ninth Circuit Blog.
I want to thank the academy, Themis, and...
I am flattered to discover that, over at the Blawg Review Awards 2005, I have been honored with an award for "Best Blawg by a Law Professor." (Apparently, I am far more appreciated by Themis, the Goddess of Justice and Law who judged and decided these awards, than by the voters in the 2005 Weblog Awards for Best Law Blog.)
Of course, I am biased when I now say that folks behind the Blawg Review Awards 2005 are obvious geniuses. Biased or not, I think the list of award-winning blawgs makes for a terrific reading list for the modern lawyer. But it also revives my interested in creating some kind of BCS for blogs.
More great holiday sentencing reading
My sentencing reading list for the holiday break has included the Latest FSR issue on Blakely in the States and the great recent law review articles on the death penalty. And now I see on SSRN that Michael M. O'Hear, who has been writing up a storm latety, has two interesting looking pieces to add to this reading list:
Abstract: Since passage of the Sentence Reform Act of 1984 ("SRA"), 18 U.S.C. § 3553(a)(6) has required sentencing judges in federal court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." At the same time, the SRA also required judges to adhere in most cases to the Federal Sentencing Guidelines, leaving (a)(6) with little independent significance. In January 2005, however, the Supreme Court ruled in United States v. Booker that the Guidelines could no longer be treated as mandatory. Since then, numerous sentencing judges have invoked (a)(6) in a variety of different circumstances to justify non-Guidelines sentences. This Article surveys the cases, examines the origins and purposes of (a)(6), and proposes a new analytical framework for judges to use when implementing the provision. Under this approach, (a)(6) would require that a sentencing judge consider the average actual sentence imposed in past cases involving a similar offense of conviction, and expressly justify any deviation from this empirical norm.
2. Is Restorative Justice Compatible With Sentencing Uniformity? (due to appear in the Marquette Law Review):
Abstract: Restorative justice (RJ) procedures offer an alternative to conventional criminal justice procedures. RJ emphasizes dialogue between criminal offenders and their victims, consensual conflict resolution, and the repairing of harm. RJ skeptics, however, frequently argue that RJ procedures undermine uniformity in sentencing. This Article considers the merits of these claims, concluding that RJ is compatible with some versions of uniformity, but not with others. While uniformity, as a sentencing ideal, has many supporters, uniformity means quite different things to different people. In particular, the Article contrasts "static" and "dynamic" versions of uniformity. The static approaches rely on sentencing factors that are external and antecedent to the processes of the criminal justice system. The dynamic approaches, by contrast, permit consideration of the interactions between offenders, victims, and criminal justice professionals within the system. The Article demonstrates that the dynamic paradigms are more compatible with RJ than the static. The Article also suggests some reasons to view the static paradigms (which pose relatively greater difficulties for RJ) with skepticism.
December 25, 2005
Reviewing Alito's work in criminal cases
The New York Times has this story discussing Judge Sam Alito's work in criminal cases while on the Third Circuit. Here's the chief conclusion of the piece:
Judge Alito's opinions in criminal cases are meticulously written, with careful deference to the findings of trial court judges and juries and scrupulous determination to fit his decisions into the framework built by past cases. He hews to the rules.
This conclusion seems sound, but it hardly facilitates predicting Alito's vote on key sentencing issues to be facing the Supreme Court. After the decisions in Blakely and Booker, it is hard to be sure exactly what the rules are for the Sixth Amendment. As I lament in my recent University of Chicago Legal Forum article, Reconceptualizing Sentencing (discussed here and here and at SSRN here), the Supreme Court has failed to build a conceptual framework for its rulings in this area. Similarly, the Court's Eighth Amendment framework for deciding death penalty cases continues to evolve; a Justice Alito may find that there are many different capital rules to which he might hew.
The NY Times article includes a quote from a defense lawyer that may provide a better basis for predicting how Alito will rule on criminal cases than his penchant for hewing to rules:
"The perception is, he's coming from an extremely conservative point of view," said George Newman, a defense lawyer in Philadelphia who has argued cases before the judge. "He's not a good defense judge."
Christmas clemency and pardon stories
Christmas time often prompts chief executives to grant clemencies or pardons, and this year is no exception. A few days ago, as discussed here, President Bush granted 11 pardons, and Margy Love has this terrific commentary on these pardons over at the White Collar Crime Prof Blog. Over the last few days, some governors have also gotten into the holiday spirit with clemencies or pardons:
- This article discusses a clemency granted by New York Gov. George Pataki to a drug offender.
- This article discusses the two persons who received pardons from Colorado Gov. Bill Owens.
- This article discusses the pardons granted by Texas Gov. Rick Perry to two men cleared of rape and murder charges by new DNA testing.
- This article discusses the pardons granted by Virginia Gov. Mark Warner to two men convicted of sexual assault who were recently cleared after a review of DNA evidence.