February 28, 2005
Gearing up for March Madness
March is, of course, one of the most exciting sports months as we fill out our NCAA brackets and our fantasy baseball rosters. But, with the busy Booker calender humming along and with other big events on the near horizon, March is also shaping up to be an exciting sentencing month. Consider:
March 1: Arguments in the New Jersey Supreme Court in major Blakely cases, which can be followed via live webcast at 10am at this link. UPDATE: Due to the severe weather, these arguments have been postponed until March 14.
March 1 and 2: The next decision days for the Supreme Court, allowing for more watching for decisions in Roper v. Simmons, the juvenile death penalty case, and Shepard v. US, the criminal history case.
March 7: En banc arguments in the Tenth Circuit on Booker issues (basics here).
March 9: En banc arguments in the Eighth Circuit on Booker plain error (basics here).
March 10-11: As detailed here, Ohio State's Justice for Children Project, in conjunction with the Ohio State Journal of Criminal Law and the OSU Center for Law, Policy, and Social Science, will sponsor a conference entitled "The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law." The event's full brochure is linked here.
March 25: As detailed here, the William and Mary School of Law presents a symposium entitled "In Prison for 30 Years for Fraud: Sentencing and the Constitution After Sarbanes-Oxley."
In addition, I anticipate that before the end of March we may see a proposal from the Justice Department for some sort of "Booker fix" and/or Senate hearings examining the Booker fallout. In addition, as explained here, I am very hopeful that we will get updated post-Booker sentencing data from the US Sentencing Commission in March.
Can the plain error mess be cleaned up?
This week the Booker plain error mess got even messier. The Seventh Circuit in Paladino joined the Second Circuit adopting something of a plain error middle-ground (and the Second Circuit reiterated its Crosby approach in Williams), while the First Circuit in Antonakopoulos joined the Eleventh Circuit in taking a tough line on plain error (and the Eleventh Circuit reiterated its Rodriguez approach in Duncan). Meanwhile, in an effort to undue the most generous plain error standard, the government has sought en banc review of Hughes in the Fourth Circuit and Ameline in the Ninth Circuit (the Ameline briefs are collected here).
In the midst of these developments, I asked here whether the Supreme Court might try to clean up the plain error mess. The problem is that, even if SCOTUS were to grant cert. on this issue, it might still be a year or more before we would get a definitive decision. These realities have me pondering whether Congress or the US Sentencing Commission could, on a quicker timeline and in service to the goal of sentencing uniformity, do something now to harmonize plain error decision-making. Though I doubt either Congress or the USSC will act in this arena, it is fascinating (and quite challenging) to think through whether and how Congress or the USSC could even try to clean up the plain error mess.
Booker items in the Third Branch
The Third Branch, the official newsletter of the federal courts, has a troika of Booker items in its February 2005 issue: this Booker-focused interview with Judge Sim Lake, chair of the Judicial Conference Committee on Criminal Law, this account of varied official reactions to Booker, and this review of the memo from Judge Lake and USSC Chair Hinojosa to courts stressing the importance of continuing to submit sentencing documents to the US Sentencing Commission.
February 27, 2005
Sentencing around the blogsphere
Just a few moments on-line this morning has allowed me to see more than a few recent sentencing items on other blogs. TalkLeft has two interesting posts on death penalty issues with this post on a Nevada bill to eliminate the death penalty for juveniles, and this post about an effort to raise the burden of proof in Illinois death penalty cases. And Howard Bashman is back at How Appealing (huzzah!), and he has linked here a lot of the coverage of the Supreme Court's criminal justice decisions last week.
On the Booker front, I see here that the PRACDL is seeking to collect information from lawyers about each sentencing hearing they attend "so as to give us all a better idea of how Judges are sentencing post-Booker." And the Second Circuit Blog here has coverage of the Second Circuit's recent Williams decision (basics here).