March 3, 2005
More rapid remands on Booker grounds
This week has not (yet) brought any major circuit rulings on Booker. But we are continuing to see from many circuits what might be called rapid remands — remands on Booker grounds without any significant discussion of plain error or harmless error issues.
I see on-line tonight such rapid remands on Booker grounds already this week from the Third, Fourth, Sixth, Eighth and Ninth Circuits. See US v. Marquez, 2005 WL 455858 (3d Cir. Feb. 28, 2005); US v. Newill, 2005 WL 468312 (4th Cir. Mar. 01, 2005); US v. Graham, No. 03-4346 (6th Cir. Mar. 1, 2005); US v. Sdoulam, 2005 WL 474337 (8th Cir. Mar. 02, 2005); US v. Morin, 2005 WL 450106 (8th Cir. Feb. 28, 2005); US v. Perez, 2005 WL 466053 (9th Cir. Mar. 01, 2005).
In addition, on Tuesday the Fourth Circuit in US v. Collins, 03-4848 (4th Cir. Mar. 2, 2005) (available here) gave Booker issues a bit fuller airing, though ultimately ordered a remand based on the court's prior work in Hughes (basics here).
The Third Circuit Blog has some interesting comments here about the remand practices of the Third Circuit, and Appellate Law & Practice here has some amusing comments about the Sixth Circuit's work in Graham.
March 2, 2005
Judicial perspectives on Booker
During the run up to Booker, I pondered here whether federal judges would become actively involved in the post-Booker policy debate. Judges have, of course, weighed in through opinions in various ways, and at last month's US Sentencing Commission hearings, Judge Thomas Hogan reported in his testimony that the Judicial Conference will be consider a recommendation from its the Criminal Law Committee later this month.
In the meantime, The Constitution Project and American Constitution Society are providing another means to hear a judicial persective on the post-Booker world. As detailed here, these groups are sponsoring next week a panel discussion on sentencing in the post-Booker world entitled "Booker: the Judges' Perspective." The panel is to be moderated by NPR's Nina Totenberg and will include Third Circuit Judge Samuel Alito, DC District Judge Paul Friedman, and Mass. District Judge Nancy Gertner.
Using international law in a post-Booker world
The discussion of foreign laws and practices in Roper (basics here) has already become a subject of much blog-dialogue as evidenced here and here and here. But today I received an interesting note from a self-described "retired Australian lawyer/law professor" who suggests that international law ought to be coming to bear in the post-Booker world. Here are some choice selections from his amusing and insightful missive:
Re: Booker, Fanfan et al, I have been fascinated by the legal sophistry which permeates the U.S. sentencing system. It is amazing that such a developed country could get itself into the mess that it has....
One issue that I have found most puzzling is the ex post facto/due process problem and, in particular, whether one result of Booker is that, for offences committed prior to 12 January 2005, a person may possibly receive a sentence which is higher than that which he/she would have received under the mandatory sentencing range on facts found by the jury or admitted by the defendant (the system which operated before 12 January 2005).
A question for you: Given that the US is a signatory to the Universal Declaration of Human Rights, why doesn't article 11(2) of the Declaration prohibit the imposition of a higher penalty? Why don't US trial lawyers/law professors not raise this issue as a starting point? The UN Declaration of Human Rights has been referred to in well over 100 cases in U.S. courts. I have copied and bolded the relevant paragraph....
Universal Declaration of Human Rights
Article 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Consider also that the American Convention on Human Rights, signed by the US on 1 June 1977, similarly provides in Article 9: "A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom."
I suspect that the US judicial response is that these two Declarations do not legally bind the United States Government in the sense of creating obligations enforceable in US courts, but they certainly do establish the relevant and applicable rule of international law which is part of US federal domestic law.
When the Supreme Court declared in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibited the execution of mentally retarded offenders, the Court punted a number of tough administrative issues when it left to the states "the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences." As noted in this post about a recent California Supreme Court ruling, three years later the states are still sorting through post-Atkins administrative issues.
Because chronological age is much easier to determine than mental retardation, the states should have a much easier time administering Roper. Nevertheless, there are still, I believe, some short-term administrative challenges for states that have been applying capital sentencing systems to juvenile offenders. For instance, I had no ready response when a colleague today asked: "Do the cases go back to the trial judge for re-sentencing or default to life?" This question also led me to ponder whether a juvenile offender sentenced to death at a time when a jurisdiction did not have the alternative of life without parole could now claim parole eligibility. (I assume some of these issues have been hashed out post-Atkins or earlier, though I doubt definitively.)
[UPDATE: I see this newspaper article from Florida suggesting that two of the three offenders on Florida's death row for killings committed when they were juveniles may become eligible for parole because their crimes were committed before Florida had life without parole as a sentence option.]
Moreover, I suspect there are more than a few on-going capital proceedings involving juvenile offenders that might need to be significantly adjusted. For example, as this article details, there is a high-profile murder trial involving a juvenile offender on-going in Philadelphia. Might the defendant in this case seek a mis-trial by claiming it is now inappropriate for a death-qualified jury to determine his guilt?
More Roper thoughts and the development of state constitutional law
Not surprisingly, the blogsphere continues to buzz about the Supreme Court's decision in Roper yesterday (early blog buzz is linked here, my early comments are linked here). Will Baude here at Crestcat Sententia shares some thoughts and also has links to the thoughts of many others. I was particularly intrigued by Orin Kerr's "evolving standards of decency" analysis here and Eugene Volokh's state constitutional law insights here and here over at The Volokh Conspiracy.
I especially want to run with the state constitutional law idea because, in my view, it has been insufficiently discussed and litigated in the arena of criminal sentencing. Interestingly, in the search and seizure context, states have often interpreted state constitutional provisions to provide broader protection to individuals than the Fourth Amendment provides, see generally Marc Miller & Ronald Wright, Criminal Procedures (2d ed 2003), sometimes because the language of the comparable state constitutional provision is broader, see generally Hawaii Const. Art. I, sec. 7 (safeguarding the right to be secure against "invasions of privacy").
But I have not seen too many interpretations of state constitutional provisions which provides a broader reading of, say, Eighth Amendment-type provisions as possible limits on non-capital criminal sentences. Notably, more than a few states (including Texas) have a state constitution prohibition on "cruel OR unusual punishments" even though the federal constitution only bans "cruel AND unusual punishments." But, unfortunately, despite severely long sentences in many states, we have not often seen state courts willing to develop a robust jurisprudence concerning the plausibly distinct protections provided by distinct state constitution prohibitions.
These issues seem especially ripe for development in the wake of Blakely and the mess the Supreme Court is making of the federal constitution's jury trial right. Notably, some state constitutions (including Ohio's) provide that the right to trial by jury "shall be inviolate;" it strikes me that exceptions to the federal jury trial right created by Harris (for mandatory minimum judicial fact-finding) and Almendarez-Torres (for prior conviction judicial fact-finding) might be subject to challenge under such state constitutional provisions.
I have seen brief mention of state constitutional claims in only one or two post-Blakely decisions, and I wonder if lawyers are even thinking to raise such claims on a regular basis as the Blakely fall-out gets litigated in the states. Readers are highly encouraged to leave comments or send me e-mails with any notable past or present developments relating to sentencing and state constitutional law.
UPDATE: Ken Lammers from CrimLaw discussed state constitutional law and litigation realities here, and Jeralyn Merritt from TalkLeft was kind enough to provide this link with all the state constitutions.
March 2, 2005 in Blakely Commentary and News, Blakely in the States, Death Penalty Reforms, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Notable 5th Circuit Booker dodge and criminal history decision
A few weeks ago I noted here the surprising Booker silence from the Fifth Circuit. Every other circuit with the exception of the DC Circuit has now addressed various Booker issues — many in grand ways; but now, a full seven weeks after Booker, we still have not gotten any Booker wisdom from a circuit that typically resolves nearly 70 sentencing appeals each month. I cannot help but speculate that significant internal debates within the Fifth Circuit is keeping it from addressing Booker issues in the many appeals that are now stacking up.
Notably, the Fifth Circuit did resolve a sentencing appeal yesterday in US v. Montgomery, No. 03-11131 (5th Cir. Mar. 1, 2005)(available here), but did so in a way that allowed it to avoid addressing Booker issues. The defendant in Montgomery contested a sentencing enhancement based on being classified as an armed career criminal, which in turn was based on the district court's judgment that Montgomery had three prior "violent felonies." The Fifth Circuit remanded for resentencing by concluding that Montgomery's "prior conviction under a Texas retaliation statute does not qualify as a violent felony." And, explained the Fifth Circuit, "[i]n light of this conclusion, we need not address the impact of the Supreme Court's recent Booker decision on Appellant's alternative argument that the sentence enhancement violated his Sixth Amendment rights."
Among the interesting aspects of this Montgomery disposition is that the Supreme Court is likely soon to decide the Shepard case, which will address in another context how to interpret and apply Armed Career Criminal Act's sentencing enhancements. Thus, delaying a decision in Montgomery might have been justified (though not essential) in light of an expected Supreme Court decision. The same cannot be said for delaying a decision on Booker issues.
Suspect Seventh Circuit standards?
Bill Theis has this extended post at the Seventh Circuit Blog raising a series of thoughtful questions and concerns about the recent plain error work of the Seventh Circuit it Paladino and Lee (discussed here and here). In addition, a few readers and the comments here have suggested that Judge Posner's statement in Paladino that a trial judge "must justify departing from the guidelines, and the justification has to be reasonable" indicates that the Circuit ascribes to Judge Cassell's view of the guidelines still having heavy weight post-Booker.
Roper around the blogsphere
I am back home in chilly Ohio, but keeping me warm is the heated discussion of Roper all through the blogsphere. Here a quick run-down with some links:
- Orin Kerr at The Volokh Conspiracy
- Waddling Thunder at Crestcat Sententia
- Dylan at Slithery D
- David at the Blue Mass. Group
March 1, 2005
Off line while Ohio bound
I am heading to the airport for my flight back to Ohio from LA, and thus I will be off-line for a while (though I hope to catch up on all the post-game analysis of Roper late tonight). As I did previously here and here and here and here, below I have thematically organized and linked some recent posts:
ROPER DECISION AND COMMENTARY
- SCOTUS declares unconstitutional juvenile death penalty in Roper
- Talk of foreign practices in Roper
- Using Roper's focus on age in post-Booker sentencings
- More evidence of the death of death?
BOOKER CIRCUIT COURT DEVELOPMENTS
- The plain error patterns continue
- Can the plain error mess be cleaned up?
- 11th Circuit does a Booker remand
- 7th Circuit speaks on plain error (and follows Crosby)
- Sixth Circuit addresses retroactivity
OTHER BOOKER DEVELOPMENTS AND COMMENTARY
- Intriguing Booker-free Gonzales comments and other DOJ news
- PAG follow-up on recent USSC hearings
- Still more Booker GVRs from SCOTUS
- How should variances that still result in prison terms be coded and considered?
- Gearing up for March Madness
More evidence of the death of death?
The Supreme Court's ruling in Roper only has a direct impact on a very small number of cases, since very few juveniles are sentenced to death even in those states which had permitted the practice. But the ruling is of grand symbolic importance, and may provide additional evidence to support my prior speculation here that the punishment of death may itself be dying a slow death. (Consider also that, with only five executions in the first two months of 2005, this year is on pace for the fewest executions in the United States in over a decade.) Though I do not expect complete abolition any time soon, opponents of the death penalty are surely to be encouraged by the direction of recent capital sentencing developments.
Using Roper's focus on age in post-Booker sentencings
The Supreme Court's ruling in Roper (basics here and here) includes much interesting discussion of the "diminished culpability of juveniles" and the "mitigating force of youth," due in part to the "immaturity" and "vulnerability" of juveniles. Though much is said in all the Roper opinions about what this should mean for purposes of the death penalty, my Booker-oriented mind has me thinking about what this should mean for non-capital sentencing.
Of course, "death is different" and rarely does capital sentencing jurisprudence impact non-capital sentencing decision-making (even though I think it should). Nevertheless, if the Constitution now demands a categorical bar on the death penalty for crimes committed before 18 because of some offenders' "immaturity" and "vulnerability" and the general "mitigating force of youth," shouldn't these same realities and concerns come to bear in at least some non-capital sentencing cases?
The US Sentencing Guidelines have long declared age a "discouraged" sentencing factor, though post-Booker we have seen a few judges question whether that determination jibes with the commands of 3553(a). In my view, Roper adds significant force to an argument that age must (or at least should) be a significant consideration in some non-capital sentencing decisions.
Talk of foreign practices in Roper
The Roper case was being closely watched as a litmus test for the Supreme Court's concern with foreign laws and practices, because most of the world's nations do not permit the execution of juvenile offenders. The final section of Justice Kennedy's opinion for the Roper Court includes an interesting discussion of these matters. Here are a few excerpts:
Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court.s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments."
The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.... It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.
Not surprisingly, Justice Scalia is none too impressed with the work of the majority in Roper, and especially its discussion of foreign practices:
The Court thus proclaims itself sole arbiter of our Nation's moral standards — and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.
SCOTUS declares unconstitutional juvenile death penalty in Roper
In a 5-4 decision authored by Justice Anthony Kennedy, the Supreme Court has held in Roper v. Simmons that the death penalty "is a disproportionate punishment for juveniles," and thus the Eighth Amendment prohibits the execution of a murderer who committed his crime before age 18. Justice Kennedy's opinion for the Court is here, Justice Stevens' concurrence is here, Justice Scalia's dissent is here, and Justice O'Connor's dissent is here. Another 80+ pages of SCOTUS wisdom for our reading pleasure. SCOTUS Blog already has a brief report on the case here, and I hope to provide some additional commentary on this notable ruling soon.
UPDATE: The first part of Justice Kennedy's opinion for the Court closely tracks the Court's 2002 decision in Atkins prohibiting the execution of persons with mental retardation:
As in Atkins, the objective indicia of consensus in this case — the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice — provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as "categorically less culpable than the average criminal." 536 U. S., at 316.
And Justice Kennedy's discussion of "theory" considerations also track Atkins and concludes with this interesting explanation of the Court's reversal of Stanford and its 1989 approval (per Justice Scalia) of the juvenile death penalty:
To the extent Stanford was based on review of the objective indicia of consensus that obtained in 1989, it suffices to note that those indicia have changed. It should be observed, furthermore, that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty; a State’s decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders, including juveniles. Last, to the extent Stanford was based on a rejection of the idea that this Court is required to bring its independent judgment to bear on the proportionality of the death penalty for a particular class of crimes or offenders, it suffices to note that this rejection was inconsistent with prior Eighth Amendment decisions. It is also inconsistent with the premises of our recent decision in Atkins.
Intriguing Booker-free Gonzales comments and other DOJ news
As detailed in this New York Times story and this Washington Times story, Attorney General Alberto Gonzales delivered his first major policy speech on Monday at the Hoover Institution. The full text of the speech can be found here, and I was intrigued to discover that the speech did not mention Booker or the federal sentencing guidelines either directly or indirectly. (Recall that, as detailed here, a month ago out-going AG John Ashcroft gave a speech at the Heritage Foundation in which he criticized the Booker ruling and said Congress, in response to Booker, "should reinstitute tough sentences and certain justice for criminals.")
Meanwhile, in other notable DOJ news spotlighted by this official press release, Assistant Attorney General Christopher Wray of the Criminal Division officially tendered his resignation on Monday. As head of the Criminal Division, Wray was a key player in the Blakely/Booker saga, and it is hard not to speculate about the possible impact this transition could have as DOJ formulates its post-Booker plans.
It has been a poorly-kept secret that there is an internal debate within DOJ about how to respond to Booker, though the buzz of late seemed to be that we could expect something official and consequential from DOJ within a matter of weeks. I encourage readers to use the comments to suggest whether we should now read the DOJ tea leaves differently in light of Gonzales' Booker silence and Wray's departure.
PAG follow-up on recent USSC hearings
I have received a copy of a letter that the Practitioners' Advisory Group sent Monday to the US Sentencing Commission, which follows up on a number of topics covered during the USSC's Booker hearings in mid February (hearing highlights and commentary are linked here). The letter, which can be downloaded below, is captioned "Supplemental Comments About Sentencing and Reporting Procedures, Victim Participation, and Procedural Reform."
Perhaps the letter's most noteworthy feature is its extended engagement with issues relating to victim participation in sentencing matters, an issue spotlighted by Judge Paul Cassell in his USSC testimony and in recent posts here and here. Also interesting is the PAG letter's discussion of a post-Booker sentencing checklist distributed by Judge Weinstein to the federal defenders, judges and magistrates in the Eastern District of New York. I also provide that checklist for downloading below.
Still more Booker GVRs from SCOTUS
I was very well treated by the kind folks at Loyola Law School during my Monday faculty workshop, and election law uber-blogger Rick Hasen noted that today's SCOTUS work included more Booker-inspired GVRs (that is, cert. Granted, judgment Vacated, case Remanded in light of Booker). Indeed, as detailed in this list of orders, today there were more than 50 Booker-inspired GVRs (to go along with the more than 30 GVRs from last week noted here).
The plain error patterns continue
The Booker story in the circuits is now perhaps getting a bit boring, as circuits continue on their distinctive plain error paths. For example, the Eleventh Circuit today continued its tough plain error approach by reissuing here its opinion in US v. Curtis denying a Blakely/Booker claim. Meanwhile, late last week, the Second and Third and Ninth Circuits remanded cases on Booker grounds in their own distinctive ways. See US v. Daidone, 2005 WL 435409 (2d Cir. Feb. 25, 2005); US v. Moore, 2005 WL 428785 (2d Cir. Feb. 24, 2005); US v. Able, 2005 WL 428758 (3d Cir. Feb. 24, 2005); US v. Sumner, 2005 WL 428832 (9th Cir. Feb. 24, 2005).
The most interesting of the recent Booker decisions comes from the Seventh Circuit per Judge Easterbrook. Though US v. Lee, No. 03-4239 (7th Cir. Feb. 25, 2005) (available here), essentially reiterates the court's major plain error holding in Paladino (basics here), the tone of the opinion is essential Easterbrook as the Lee court details all the settings in which Booker remand might not be necessary.
February 28, 2005
A final LA Booker day
While everyone back east struggles with a winter storm, I have the good fortune of one last day in sunny LA thanks to a kind invitation to do a faculty workshop from the kind folks at Loyola Law School. I will likely be off-line the rest of the day while I talk about sentencing procedures in a post-Booker world, though I hope to be able to catch up on any Monday developments late tonight.
More insightful Booker metaphors
In this post I spotlighted some of the Booker song references I have seen, and this comment has added a Booker version of Bob Dylan's "Times They Are a-Changing." But at the AFDA seminar I attended last week, there seemed to be a pop culture reference shift to movies and books, with The Wizard of Oz, The Perfect Storm and Alice in Wonderland all getting a Booker spin.
Professor Margareth Etienne (along with Atlanta Federal Defender, Natasha Perdew Silas) gets credit for turning the Supreme Court's sentencing jurisprudence into a trip to Oz. And today Margareth sent me a draft of a forthcoming Booker commentary which shows she has no shortage of useful Booker metaphors. In the piece that can be downloaded below — which is titled "Into the Briar Patch?: Power Shifts Between prosecution and Defense after United States v. Booker" and is forthcoming in the Spring 2005 issue of the Valparaiso Law Review — Margareth explains how the "Tar Baby story is instructive in understanding the latest developments in the regulation of federal sentencing."
East coast sentencing updates
Here is some news in the Monday morning papers on sentencing developments in New York and New Jersey:
- The New York Times has this article focusing on the new doubts of Helene Weinstein, speaker of the NY Assembly, about the death penalty as NY contemplates revising its capital punishment statute which was declared unconstitutional by New York's highest court last summer in LaValle (basics here).
- The New Jersey Star Ledger has this story concerning arguments being heard tomorrow by the Supreme Court of New Jersey in two cases that address the impact of Blakely on New Jersey's statutory sentencing scheme. This argument can be followed via live webcast at this link, and background and some of the brief in the case are available here.