December 28, 2005
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.