February 16, 2005
Pondering a victim's role in sentencing
One quite intriguing issue that came up twice during today's US Sentencing Commission hearing (highlights here) concerned the role of crime victims at sentencing. Both Judge Cassell and victim advocate Collene (Thompson) Campbell discussed briefly victim participation in the federal sentencing process in the wake of Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act (codified at 18 USC § 3771).
The tail end of Judge Cassell's testimony talks through these victim rights issues in some depth (and includes the text of the new statute). And the Q & A at the USSC hearing today spotlighted some of the intriguing issues raised by having to give victims a defined role in sentencing (e.g., should victims have a right to see (and contest findings within) a presentence report?).
The particulars of working victims into the sentencing process will present various challenges, but my first question is who exactly qualifies as a victim under the new federal law. The new statute states: "For the purposes of this chapter, the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense."
In the context of some offenses, the victims as so defined will be obvious; but often there could be tough legal questions about who could claim to be "directly and proximately harmed" by various federal offenses. Are there any "victims" in drug cases, in firearm possession cases, in immigration cases? Are there hundreds of thousands of victims in large corporate frauds that impact financial markets? (Notably, the statute has a provision stating that if "the court finds that the number of crime victims makes it impracticable to accord all of the crime victims" the new statutory rights, "the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.")
Moreover, because the statute gives victims a right to be "reasonably heard" at a plea proceedings, it would seem that "victim" status has to be determined based on offenses charged and not just offenses that are the basis of a conviction. But that in turn leads me to wonder exactly when victims' rights vest (I would think at the time of the offense rather than the time of indictment), and also whether such rights might at some point devest (perhaps upon the dropping of a charge or an acquittal).
In sum, though granting victims rights in the criminal justice system sounds good in theory, I suspect it will prove quite challenging in practice. Notably, the new Crime Victims Act gives the Attorney General a year to promulgate regulations to enforce these rights, and I am now very interested to see what those regs will say. I would bet some of these issues have been addresses in some states that may have similar legislation, but federal laws and crimes are likely to present its own unique issues.
Another Booker ruling from the Sixth Circuit
Continuing to set the Booker pace (and continuing to make my head spin), the Sixth Circuit gave us another take on Booker review with its decision Tuesday in US v. Murdock, No. 03-1811 (6th Cir. Feb. 15, 2005) (available here). The main Booker part of the opinion reaches the conclusion that Murdock's sentencing enhancement was not Blakely problematic because it involved a legal conclusion based on facts admitted by the defendant through his plea. Then the court explains:
We note that "[t]here may be some federal criminal defendants whose cases were on direct review at the time the Supreme Court issued Booker who are entitled to remand even though their sentences are consistent with the Sixth Amendment." United States v. Milan, No. 02- 6245/6302 (6th Cir. Feb. 10, 2005), slip op. at 8. This opinion should not be read to foreclose a defendant’s argument, in the appropriate case, that this Court should vacate and remand his sentence on the ground that the district court regarded the Sentencing Guidelines as mandatory at the time of his sentencing. However, Murdock has made no such argument in this case, and we decline to do so on his behalf.
I read this passage to hold that Murdock essentially forfeited a claim based on what I have called here the "statutory error" which arose from the pre-Booker (and now improper) mandatory application of the guidelines in his case. However, as I reader Booker, the Sixth Circuit after this finding still had an obligation to review Murdock's sentence under the new 3553(a)-defined reasonableness, which it did not do.
February 15, 2005
Interesting midwestern Blakely perspectives
This week has brought interesting new perspectives on Blakely and Booker from intermediate appellate courts in Indiana and Ohio.
From Indiana we get Abney v. State, No. 25A05-0407-CR-394 (Ind. App. Feb. 15, 2005) (available here), which is not all that exceptional in its basic holding: the court mostly reiterates prior state rulings that Indiana's presumptive sentencing system is subject to Blakely, but then is able to affirm a sentence because the trial court had relied on some Blakely-compliant aggravating sentencing factors. But the case is noteworthy because, as spotlighted by the Indiana Law Blog here, a concurring judge argues that Booker's gloss on Blakely indicates that Indiana's sentencing laws are not in fact Blakely problematic.
From Ohio, where earlier this month as noted here the First District appellate court concluded that Booker's gloss on Blakely did make Ohio's sentencing system problematic, we get another appellate panel (like the one noted here) providing an extended and thoughtful constitutional defense of Ohio's sentencing system. In State v. Trubee, 2005-Ohio-552 (3d App. Dist. Feb. 14, 2005) (available here), the court draws on Justice O'Connor's Apprendi dissent to contend that a "close examination of the Supreme Court's rulings demonstrates that the Court has implicitly found that the structure of Ohio's sentencing scheme does not violate a defendant’s constitutional rights." Notably, to perhaps ensure rapid resolution of these matters by the state supreme court, the Trubee court decided to "sua sponte certify this decision pursuant to App.R. 25 to the Ohio Supreme Court for conflict with the recent decision of the First District Court of Appeals."
There they go again...
Thanks to Appellate Law & Practice, I see that the circuits are back in Booker action, and later tonight I hope to discuss a few federal and state Booker/Blakely cases that hit my virtual desk today.
But catching my eye first is the amusingly opaque unpublished Booker disposition coming from the First Circuit today in US v. Brichetto, No. 04-1820, (1st Cir. Feb. 15, 2005)(available here). In this case, the First Circuit makes its first mention of Booker with this lone comment while affirming a conviction: "Brichetto has appropriately waived the Booker claim of sentencing error he originally pursued on appeal." I am inclined to assume this means the defendant withdrew his claim (perhaps for fear of getting a tougher sentence on remand), but the use of the term "waived" has piqued my curiosity about whether "appropriately" is the same as "voluntarily" in this case.
A few highlights from Day 1 of the USSC hearings
The US Sentencing Commission did itself proud through its first day of Booker hearings: it invited a diverse set of witnesses who addressed a diverse array of important post-Booker topics and shared advice that should help the USSC in its challenging post-Booker work. The richness of the testimony and the Q & A cannot be fully captured in this space, but below I spotlight a few substantive and rhetorical highlights drawn from the written testimony of today's witnesses (most of which is linked here at the USSC's website). Later tonight, I hope to have the time and energy to do a few posts with commentary concerning today's festivities.
Chief US District Judge Thomas Hogan (DC): "[T]he US Judicial Conference has not yet taken an official position on sentencing in the wake of the Booker decision.... [T]he Judicial Conference's Criminal Law Committee has taken the lead and is now hard at work developing policy recommendations for the Conference's consideration [which likely] will be considered at the March 15, 2005 meeting of the Judicial Conference."
Chief US District Judge Lawrence Piersol (SD): "I believe that Booker provides a nearly perfect sentencing system.... I urge the Commission to take the position that the 'Bowman fix' is no fix at all — it is somewhere between a flat tire and a blowout.... The Bowman 'fix' would at the least be declared unconstitutional in some Circuits so we would have a year or two where federal sentencing law would be in an upheaval while that issue was being initially resolved."
US District Judge Paul Cassell (Utah): "[T]he Commission invited me to suggest changes to the Guidelines and other bodies of law that might be appropriate in the wake of Booker. I would like to respectfully offer seven tentative suggestions.... The common theme to these suggestions is that they would all encourage judge to say more closely attuned to the Guidelines."
US District Judge Lynn Adelman (ED Wisc): "Booker does two things that will lead to a more just system: (1) it restores federal judges to a meaningful role in the sentencing process; and (2) it makes clear that fairness in sentencing requires consideration of factors other than reducing sentencing disparities."
US District Judge Richard Kopf (Neb): "[J]udges obviously know more about the individuals we sentence than many other people [but] the significance of this truism to the statutory goals of sentencing is often zilch.... [T]he importance of 'knowing the person' is overstated by those who want excuses to do something different than what the Guidelines dictate.... Congress and the Commission should go slow and see what happens. If most district judges exercise the restraint that I predict they will, and circuit judges use Guidelines-sensitive standards for the defiant, Booker will turn out to be, in the words of one famous federal prisoner, 'a good thing.'"
Mary Price (FAMM): "The Blakely and Booker opinions launched what you recently described as a national conversation about sentencing. Your voice must figure prominently in that discussion. This is not a time to tinker around the edges of reform or rush to adopt measures designed to just meet, or worse, avoid, constitutional requirements.... We ask you to think big and reach back to foundation principles of justice."
Collene (Thompson) Campbell (MOVE): "We must make certain that fair and reasonable, but realistic and tough, sentencing guidelines are in place and followed. We must be positive that our standards are not weak, or give into those with a propensity for violence.... This Commission must build into its sentencing policies and procedures a requirement that Judges are obligated to give the victim a right to be heard and must take into consideration and understand the impact of the crime, along with the views of the victim, prior to making any sentencing decisions."
Paul Rosenzweig (Heritage): "Booker will not endure [because] the pushme-pullyou solution in Booker can long withstand either political or constitutional scrutiny.... There are so many questions that underlie the 'reasonableness' standard that I feel utterly confident in predicting years of litigation, multiple circuit splits, and the frequent necessity for clarifying Supreme Court intervention."
February 15, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Curious grants of new trials based on Booker
A reader this morning passed along two notable Booker decisions issued earlier this month which have only recently come on-line. In parallel rulings in two fraud cases, US v. Williams, 2005 U.S. Dist. LEXIS 1980 (N.D. Ohio Feb. 4, 2005), and US v Rohira, 2005 U.S. Dist. LEXIS 1981 (N.D. Ohio Feb. 4, 2005), Senior US District Judge Ann Aldrich relies upon Booker to grant defendants a new trial because, to quote from the Williams opinion headings, the "Jury Was Never Expressly Charged with Finding the Amount of Loss beyond a reasonable doubt and Agent's Unreliable Estimate Probably Tainted their Deliberation on That Issue" and "Unreliable Loss Estimate Likely Influenced Jurors' Decision on Guilt or Innocense [sic]" and "Jury's Consideration of Amount of Loss at Trial Is Inextricably Linked to Its Consideration of that Same Issue at Sentencing."
Based on a quick read, I fear that these rulings may be reading too much into Booker because of broader concerns the court may have about convictions apparently based on shaky evidence. (In a footnote, the court states: "The prosecution's use of this deeply flawed estimate of a central fact [the amount of fraud loss] may constitute grounds for a new trial independent of Booker and Blakely.") But the decisions still serve as a sober reminder of the concerns and potential confusions raised by Sixth Amendment issues and the Booker court's distinctive and curious resolution of such issues.
An inside-the-Beltway Booker analysis
An on-time flight and a hotel room available early gives me a little blogging time before heading over to this afternoon's US Sentencing Commission hearing. I am pleased to see that the USSC now has a lot of the hearing witnesses' written testimony linked through this agenda page so even folks outside the Beltway can follow the action.
I hope to comment at length tonight about what transpires at today's USSC hearings, but first I have other items of interest to share. Perhaps fittingly as I was in transit to DC, another government document about Booker arrived in my in-box: a research report entitled "Federal Sentencing Guidelines: Background, Legal Analysis, and Policy Options" authored by the Congressional Research Service of the The Library of Congress. The short report, which can be downloaded below, provides a useful overview of Booker and the policy issues facing Congress. The report is dated February 9, so I assume it was prepared in conjunction with last week's House hearing in Booker (highlights here).
February 14, 2005
Off to DC for a big week
I leave in the early morning Tuesday to head to Washington DC in order to testify in the late afternoon at the US Sentencing Commission hearings. Details on the USSC hearings and some of the written testimony are available here.
I will be in DC through Friday because late Thursday I have the honor of participating in a panel discussion sponsored by the Supreme Court Fellows Program concerning the impact of new technologies on how the media covers the Supreme Court. (Dahlia Lithwick — who has been described as "the rockingest Supreme Court columnist ever ever ever" — is a co-panelist, and she recently got in the spirit of the event through this interesting American Lawyer piece which explains that "the Web has changed [Supreme] Court reporting quite significantly, and changed the way the Court does business almost not at all.")
Though I expect to have hotel internet access, blogging is likely to be a bit light through the week. But, by being a busy Booker beaver, I leave behind many posts on a range of Booker/Blakely issues. Here's an abridged summary with links:
BOOKER CIRCUIT COURT RULINGS
- Sorting through the Circuit circus
- Another important (and opaque) 3d Circuit remand
- More (a lot more) notable circuit Booker work
- Reports on Booker circuit action
OTHER BOOKER INFO AND COMMENTARY
- Thoughts on post-Booker data collection
- One needed quick fix: a new USSC Commissioner
- Taking (insightful) stock of the post-Booker world
- Reports on recent Booker district court sentencings
- Mark your Booker calenders (list of events has been updated tonight)
- Celebrating a month of Booker (includes a Word version of a month of post-Booker blog posts)
BOOKER HEARINGS INFO AND COMMENTARY
- The next big hearing and some written USSC Hearing testimony
- More reports on the House hearing
- House hearing highlights
BLAKELY IN THE STATES
- The New Jersey Blakely saga continues
- The Ohio Blakely saga continues
- Booker wisdom for the states from the Vera Institute
And, if somehow all these materials do not fulfill all your sentencing law and policy needs, you can head over to this new webpage I have created to assemble sentencing law resources, which now includes a (still-in-development) Booker basics page.
The next big hearing and some written USSC Hearing testimony
After the circuits went wild at the end of last week (some details here, commentary here), today has been, at least according to my in-box, a mercifully quiet day for court decisions. And that quiet has, thankfully, given me needed time to complete my written testimony for the US Sentencing Commission hearing that starts tomorrow afternoon and is formally entitled "entitled "U.S. v. Booker/Fanfan and the Impact on Federal Sentencing."
The Commission had provided is Public Hearing Agenda here and some Topics of Discussion here for this exciting next round of Booker hearings. I must say that I am a bit fearful that even I may soon start suffering from Booker overload. Last week's House hearing (highlights here) had only four witnesses and was still a bit overwhelming. (Notably, a full webcast of that hearing is now available here.) The USSC is bringing in twenty (20!) big-time witnesses for its two days of hearings, and I suspect every one of them will have important and interests insights and ideas to share.
I have the pleasure of sharing Tuesday's final panel, which is to provide "A View from Academia," with Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation, and Adjunct Professor, George Mason University School of Law. You can have an opportunity to see how things look from academia by reading my written testimony and Paul's testimony, which I provide for downloading below.
UPDATE: I am very pleased to have now received a copy of Judge Paul Cassell's written testimony for the USSC hearing tomorrow. It runs fifty pages (50!), though parts I and II cover the ground of Judge Cassell's Wilson opinions. But Part III makes specific recommendations to the Commission about how to improve the Guidelines after Booker (e.g., encouraging the Commission to reemphasize that "forbidden" factors remain forbidden and to discourage 5K1.1 downward departures for substantial assistance absent a government motion). And Part IV touches on the rights of victims to participate in the federal criminal justice process in the wake of Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act. Interesting stuff.
February 14, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Sorting through the Circuit circus
Though I can barely find time to read all the circuit court Booker rulings (recently detailed here and here and here and here and here), my growing sense is that the appellate handling of "pipeline case" is a disparate mess. Of couse, given Justice Breyer's opaque closing paragraph in Booker, this comes as no big surprise (I expressed my fear of a remedy mess here hours after Booker came down). But the situation seems to be developing into a (twelve-ring) circus that risks significantly undermining a federal sentencing system which is purportedly committed to administering equal justice.
To clarify my own thinking about the rapid-fire circuit dispositions, I have below outlined my own understanding of how Booker should be understood for pipeline cases now on appeal. I would be eager for readers to use the comments to provide feedback on my analysis.
The two types of Booker errors: I believe each part of the Booker opinion defines a different type of error. Justice Stevens' opinion explains that there is a constitutional error (based in the Sixth Amendment) when a judge enhances a sentence in a mandatory sentencing system based on facts not admitted by the defendant or proved to a jury beyond a reasonable doubt. Justice Breyer's opinion explains that, given the Court's finding of constitutional error, there was a statutory error (based in the severability principles) when a federal judge applied the guidelines as mandatory rather than advisory with heightened attentiveness to the instructions of 3553(a).
Notably, only some pre-Booker sentencings involved constitutional error, since not every pre-Booker guideline sentence depended upon judicial fact-finding. But every pre-Booker sentencing involved statutory error, since every pre-Booker guideline sentence was imposed based on the assumption that the guidelines were mandatory and was imposed without heightened attentiveness to the instructions of 3553(a). Indeed, the cases before SCOTUS define these realities: Booker's sentence included judicial fact-finding so it involved both constitutional error and statutory error; Fanfan's sentence was not based on judicial fact-finding so it involved only statutory error. Both cases were remanded for resentencing.
The Booker remedial instructions: In his final paragraph, Justice Breyer explains that "we must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review." I think that means that both constitutional and statutory errors must be recognized and remedied in all federal cases not yet final. However, Justice Breyer also suggests that reviewing courts will be able to "apply ordinary prudential doctrines" to ensure that not "every appeal will lead to a new sentencing hearing." And here is how Justice Breyer explains the application of these prudential doctrines:
[Reviewing courts can determine] whether the issue was raised below and whether it fails the "plain-error" test. [And] in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.
What I think Booker means for pipeline cases: Putting all these pieces together, I believe circuit courts, in cases with constitutional error, can and should apply plain error analysis if the Sixth Amendment was not raised below. However, even if the plain error standard is not satisfied OR if a sentence did not involve "a Sixth Amendment violation," circuit courts still must, because of statutory error, apply harmless error analysis to determine if resentencing is still warranted AND also must review every sentence for reasonableness even if application of "ordinary prudential doctrines" makes resentencing unnecessary.
February 13, 2005
Thoughts on post-Booker data collection
In this post reflecting on last week's House hearings (highlights here), I stressed the importance of focusing upon data rather than anecdote when assessing federal sentencing post-Booker. But, even as we properly focus on sentencing data post-Booker, we should be mindful of the great Disraeli/Twain quote: "There are three kinds of lies: lies, damned lies and statistics."
The challenge for the US Sentencing Commission and others will be not only to collect and analyze post-Booker sentencing data, but also to present this data accurately and effectively. I thought the data report on the 733 cases sentenced on or after January 12 as of February 4 in Judge Hinojosa's testimony to the House Subcomittee last week was very well presented, but its accounting of the cases still raised a lot of "coding" questions in my mind.
Moreover, I fear a lot of coming data confusion in part because we do not even have a settled nomenclature for new-fangled post-Booker sentences that are neither within the guidelines nor represent "old-world" departures: the Second Circuit in Crosby suggested the term "non-Guidelines sentence"; Judge Cassell has coined the term "variance"; the defense bar is partial to "statutory sentence".
On this subject, I see White Collar Crime Prof Blog has this interesting post on related data issues which reports on Judge Nancy Gertner's proposal for developing a "sentencing information system" which seeks to move away from "act of departure" reporting to a "why departing" reporting system. My casebook co-author Marc Miller should be credited for promoting sentencing information systems in this recent article, which notes their use in Scotland and New South Wales. Whether and how data could be collected and assembled to create an effective sentencing information system for federal sentencing is one of the many interesting post-Booker issues to watch.
One needed quick fix: a new USSC Commissioner
Though the move of US Sentencing Commissioner Michael O'Neill from the USSC to the Hill to become Counsel for the US Senate's Judiciary Committee is old news (I first reported it here), it is interesting to see that the USSC has just posted on its website O'Neill's official resignation letter. It is also still fun to speculate on the role O'Neill may be playing in his new job as the Senate contemplates hearings and a possible legislative response to Booker. (I am inclined to believe that O'Neill had a hand in encouraging Judiciary Committee Chair Arlen Specter to take the "let Booker percolate a while" approach reflected in comments reported here.)
Meanwhile, since O'Neill's departure means the USSC will be one Commissioner short at a crucial time, this development does present an opportunity for one important quick fix in the wake of Booker. The President ought to expeditiously name, and the Senate ought to expeditiously confirm, a replacement for O'Neill so that the USSC can be working again at full force ASAP.
The New Jersey Blakely saga continues
As I have detailed in posts here and here and elsewhere, the story of Blakely in New Jersey (aka the state which gave us Apprendi) is quite engaging and dynamic. Responding to the state's lament that "uncertainty regarding the effect, if any, of the Blakely opinion on [New Jersey's] ordinary term sentencing system has had a paralyzing effect on sentencing judges, defense attorneys, and prosecutors," the New Jersey Supreme Court recently agreed to review three major Appellate Division Apprendi and/or Blakely rulings on an expedited schedule.
NJ attorney Steve Sanders — who has been involved in these cases as an amicus for the Association of Criminal Defense Lawyers of New Jersey — has been kind enough to pass along some of the briefs in these cases. For the interested reader, I have provided these briefs for downloading below. Among the notable aspects of the briefs is that the defendants say that Booker shows that Blakely is applicable to NJ's sentencing laws, while the State argues that Booker reinforces its argument that NJ's scheme is perfectly constitutional.
The Ohio Blakely saga continues
I have previously highlighted that Ohio's sentencing laws and practices make the state a Blakely bellwether because Blakely's impact on Ohio's sentencing scheme could be extreme or extremely minor (background here and here). To its great credit, as detailed in memos linked here, Ohio Criminal Sentencing Commission has been tracking Blakely developments closely, and it has been regularly updating this memo with the latest Ohio appellate court decision on Blakely. (Relatedly, the Ohio Criminal Sentencing Commission has also recently produced this report entitled Monitoring Sentencing Reform which asserts that Ohio has generally achieved its stated goals with the sentencing reform it enacted a decade ago.)
As reported here a last week, though most of Ohio's intermediate appellate courts had found Blakely largely inapplicable in Ohio, the First Appellate District in State v. Bruce, 2005-Ohio-373 (Ohio 1st Dist. Feb. 4, 2005) (available here), concluded that Booker significantly altered the Blakely analysis in Ohio. The Bruce court explained that, though it had previously concluded that "Blakely did not materially affect the Ohio sentencing scheme," the Supreme Court's "recent decision [in] Booker [makes] clear that this interpretation was wrong."
But this week, in Ohio v. Abdul-Mumin, 2005-Ohio-522, 2005 WL 315062 (Ohio App. 10 Dist. Feb. 10, 2005) (available here), Ohio's Tenth Appellate District explained in the most thorough decision I have seen why it believes Ohio's sentencing scheme does not have Blakely problems. Here's the heart of the Court's concluding analysis:
By enacting [Ohio's sentencing presumptions], the Ohio General Assembly did not change the definition of any existing offense. It simply conferred favored status upon minimum sentences for first-time imprisonment, and provided directives to guide the use of factors that have always been considered by sentencing courts to bear upon the appropriateness of a particular punishment, i.e., "the seriousness of the offender's conduct" and the need to "adequately protect the public from future crime by the offender or others."... [T]he factors involved in the imposition of appellant's non-minimum sentences did not enlarge appellant's penalty for any offense beyond the maximum authorized by the jury's verdict. As such, their use was not violative of appellant's Sixth Amendment right to a trial by jury.
Though the Abdul-Mumin court makes a quite spirited defense of Ohio's sentencing laws in the face of Blakely, I know that not everyone will be convinced of its analysis. Specifically, I had a student last semester who examined Blakely in Ohio and concluded that Blakely must be applicable to Ohio's sentencing laws. That student recently completed a polished write-up of his conclusions and he has allowed me to share his perspective on Ohio's Blakely problems here:
Taking (insightful) stock of the post-Booker world
Though I already celebrated a month of Booker in this post here, a collection of terrific items in the papers and around the blogsphere this morning allows us all to take stock of our sentencing world a month after Booker.
First, this article in the Baltimore Sun provides a terrific overview of post-Booker developments in federal sentencing. Similarly, the White Collar Crime Prof Blog has a great post here surveying and assessing the post-Booker landscape, as well as another fine post here spotlighting that DOJ is still able to brag in press releases about tough sentences imposed on white-collar offenders.
Second, in this terrific op-ed in the Washington Post, Andrew Goldstein provides a fantastic account of the importance of transparency in sentencing decision-making. Though particularly stressing why, post-Booker, "it is crucial for judges to openly explain their sentences," the piece does a wonderful job of highlighting more broadly why every actor and institution involved in the development of sentencing law and policy ought to publicly explains its decisions.
Third, as a reminder of broader issues in a post-Booker world (which, as noted here, I realize do exist), the Los Angeles Times has this terrific article about the ways Governor Arnold Schwarzenegger is embracing and promoting rehabilitation-oriented policies and programs in California. TalkLeft here has a nice summary account of the article. Notably, while the article suggests Arnold is "veering sharply from the law-and-order mantra of his Republican Party," I think this work by The Terminator (or should we call him now The Rehabilitator) is just another example of the new criminal justice right I have identified and that Grits for Breakfast has noted in Texas.
Another important (and opaque) 3d Circuit remand
A reader pointed out that I missed an important (published) remand from the Third Circuit in my review of all the late week Booker action from the circuits (detailed here and here and here and here). As in its unpublished Mortimer ruling, the Third Circuit's Booker disposition in US v. Davis, No. 02-4521 (3d Cir. Feb. 11, 2005) (available here), does not provide much factual background or legal analysis. Yet, the one paragraph Booker discussion in Davis hints that the Third Circuit might be employing the broadest remand standard of any circuit. Here is the entire Booker discussion appearing on the last page of the Davis opinion:
Appellants challenge their sentences under US v. Booker, 125 S. Ct. 738 (2005). In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker.
Reading Mortimer and Davis together, I am inclined to think that the Third Circuit has decided to remand every Booker claim without even bothering with plain error review. (The Third Circuit Blog comes to this same basic view here based on just the Mortimer ruling.) Of course, if it is the Third Circuit's plan to remand every case, it ought to make that clear.
As I hope to explain in a later post, I think a circuit plan to remand all sentencing cases still on direct review that were imposed under mandatory guidelines might be the most just and efficient way to deal with the Blakely/Booker pipeline cases. In other words, I believe it would be most prudent for the circuits to generally forgo using prudential doctrines to affirm sentences imposed under the old mandatory guidelines system.