January 7, 2006
Gearing up for House v. Bell
As noted in this January preview, the Supreme Court this Wednesday will hear argument in House v. Bell, another capital case raising innocence-related issues. A very knowledgeable colleague has called House "a hugely important case, the 'sleeper' of this Term perhaps. "
For background on the facts, the Washington Post today has this long article titled "High Court to Consider DNA Innocence Claim; Death Row Prisoner Wants New Trial." For background on the law, you can access the parties' briefs here, and I have provided for downloading below a copy of the ABA's amicus brief in support of the defendant. In addition, the Medill School of Journalism provides here the questions presented and a range of links.
A new blog on habeas and the death penalty
Last spring on a day the courts were cranking out AEDPA opinions, I suggested here that someone should start a blog on habeas corpus issues. Seek and ye shall eventually receive: I just learned from Jason Lee, a current circuit law clerk and future federal public defender, that he has started a blog covering habeas corpus and death penalty issues. This new blog, Habeas Corpus Review, promises to provide "News and Commentary on the 'Great Writ of Liberty' and the Death Penalty." Based on what I see already, I expect to be a regular reader of HCR.
January 6, 2006
Oklahoma court develops Atkins procedures
As detailed in this article, the Oklahoma Court of Criminal Appeals (the highest state court with appellate jurisdiction in criminal cases) on Thursday issued a ruling in Blonner v. State, No. 2006 OK CR 1 (Okla. Ct. Crim. App. Jan. 5, 2006) (available here), in which the court establishes a detailed procedure for the resolution of mental retardation claims in capital cases.
Among the interesting aspects of Blonner is that court's opinion represents a partial reversal of course on these issues, and the opinion includes detailed jury instructions and a jury form that makes it read more like the work of a rules committee than the work of an appellate court. And, for this reason, Justice Lumpkin issues a stinging partial dissent complaining about a decision he believes "is best regarded as an example of judicial activism and legislation spinning out of control:"
The Court's inability to adopt a procedure and exercise the self-discipline to stick with it disregards the Rule of Law and demonstrates why there is such an aversion to legislating from the bench. For when Courts begin crafting the law rather than interpreting it, we create chaos and skewed doctrines that are not in touch with the will of the people. Even worse, we fail to follow the Rule of Law and introduce politics where it does not belong.
This is where we find ourselves today. The Court keeps "changing the rules," adding more procedures and loopholes that surely wreak havoc in pending trials. Indeed, the latest proposal requires a separate trial, jury, and appeal. The process is so micromanaged it literally makes one's head spin. In fact, it is difficult to find your way through today’s opinion without getting a headache....
The one-way ratchet of sentencing reform
Yesterday, in this post astutely titled "The kind of case that can prompt needed reforms," I relayed the story of a disconcerting state sentencing in a child sexual abuse case in Vermont. In the case, the judge apparently felt that, to ensure the defendant received needed treatment, he could only impose a sentence of 60 days imprisonment for what seems like a crime meriting a much longer sentence. And, at sentencing, the judge apparently disavowed the value of retribution and punishment in sentencing.
Because the facts are extreme, and the judge's comments provocative, I am not suprised to see this AP story indicating that the case has already "prompted a cry at the Statehouse for tougher sentences and more effective treatment." Here are more details about the quick political firestorm that one headline-grabbing case can create:
Republicans held a news conference Friday to introduce a bill that would require judges to impose a minimum sentence of 25 years in prison for aggravated sexual assault, sexual assault and second and subsequent offenses for lewd and lascivious conduct with a child younger than 12. Democrats responded by saying such a proposal already was part of their more comprehensive plans for getting tough on crime, a package that's the subject of hearings this week and next in the House.
A lot might be said about this case and the quick reaction it has generated. Notably, in this post entitled "Why People Are Skeptical of Judicial Discretion in Sentencing," Eugene Volokh thoughtfully explains why cases of this sort lend support for proponents of sentencing guidelines. But, as I noted in this comment, it is also worth reflecting on the one-way ratchet sentencing reform dynamic this case reveals: just one single seemingly too lenient sentence has prompted an immediate legislative response, but often decades of seemingly too harsh sentences (e.g., all the long crack sentences for mules in the federal system) will barely create a political ripple.
All the comments to Volokh's post make for interesting reading, although I am always amazed to see a purportedly libertarian/conservative crowd show no real concerns about the problems of over-incarceration. By my lights (and also, I think, Justice Scalia's as evidenced by his decision in Blakely), one of the greatest threats to liberty and freedom is the government having broad powers to lock people in small cages for very long periods of time. I am often disappointed that those who claim to champion liberty and small government are not leading campaigns against excessive punishments. Perhaps I should do a post entitled, "Why people are skeptical of libertarian/conservative concerns about liberty/freedom/small government."
One of my favorite comments on the Volokh post comes from Eric Muller of Is That Legal?: "I find this post to be a bit like one that links to an anecdote about an airplane crash and titles itself 'Why People Are Afraid To Fly.' The sentence in this case is an outrage, but my experience tells me it is also an extraordinary aberration — the sort of aberration that is more appropriately correctable by the nuanced remedy of appellate reversal than by the broad, cumbersome, and potentially dehumanizing remedy of across-the-board sentencing regulations."
Will SCOTUS take up a core state Blakely case this term?
Thanks to this post by Lyle Denniston at SCOTUSblog, you can read summaries of the six new cases on which the Supreme Court just granted cert. Two are criminal cases, but neither involves sentencing issues. (One, Zedner v. U.S. (05-5992), considers "whether the 70-day time limit under the Speedy Trial Act for bringing an accused to trial is subject to harmless-error analysis." We can thus prepare for a harmless-error spring: as detailed in these posts, SCOTUS in a few months will explore in Washington v. Recuenco whether Blakely errors can be subject to harmless-error analysis.)
In light of these six new grants, I am starting to wonder if the SCOTUS dance card is now almost full. As noted in this January preview, the Court is still actively considering cert. petitions from defendants in California and Tennessee (details here), who complain that their states' high courts have illegitimately dodged the application of Blakely. Though I have been speculating that cert. will be granted in one of these cases, this latest large set of SCOTUS grants leaves me less sure.
Martha Stewart conviction upheld
As detailed in a bunch of news stories linked here at How Appealing, the Second Circuit today affirmed Martha Stewart's and her co-defendant's convictions. You can access the opinion here, and find an extended summary and commentary here from the White Collar Crime Prof Blog. I suspect that many may react to this news by wondering, "But wait, didn't she already serve her sentence?" Of course, Martha did already serve five months behind bars and another five under home confinement, though I think she is still finishing up her two-year period of supervised release.
Beyond that technically, I think the Martha news should prompt some reflection on an important distinction between capital and non-capital cases concerning the pace of appellate review. Many seek habeas and other reforms to quicken the pace of the review of capital sentences because defendants are avoiding the application of their sentence during appellate review. But, for many non-capital defendants, the slow pace of appellate review can sometimes undermine the efficacy of even appealing. As in Martha's case, often a defendant may complete much of their sentence even before an initial appeal gets decided. (Or, recall the Arthur Andersen convictions overturned by the Supreme Court last year: prevailing on appeal provided little solace to a company that was functionally killed by the initial convictions.)
Seventh Circuit expounds still further on reasonableness review
In a decision that, coincidentally, echoes some of the Eighth Circuit's reasonableness work today, the Seventh Circuit in US v. Vaughn, No. 05-1518 (7th Cir. Jan. 6, 2006) (available here) has an important discussion of the scope and particulars of reasonableness review. Though covering a lot of interesting ground, Vaughn seems especially notable for its reiteration of the Seventh Circuit's view of the concepts of departure and appellate review after Booker. Here's a key snippet (with cites omitted):
[A]s we recently remarked, the concept of a discretionary departure — over which we previously had no jurisdiction — has been rendered obsolete in the post- Booker world. Instead, what is at stake is the reasonableness of the sentence, not the correctness of the departures as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory. Post-Booker, because we must review all sentences for reasonableness in light of the factors specified in § 3553(a), we necessarily must scrutinize, as part of that review, the district court's refusal to depart from the advisory sentencing range.
Eighth Circuit explains why within-guideline sentences are appealable
As we approach the one-year anniversary of Booker, the realities of reasonableness review are finally starting to be filled in. Yesterday brought a major crack/powder ruling from the First Circuit in Pho (basics here, commentary here and here), and today now brings a major ruling on the scope of appellate review from the Eighth Circuit in US v. Mickelson, No. 04-2324 (8th Cir. Jan. 6, 2006) (available here).
As discussed recently here, DOJ has been arguing in a number of circuits that, under the strict terms of 18 USC 3742, appellate courts lack jurisdiction to review a properly-calculated within-guideline sentence. The Eighth Circuit in Mickelson (in an opinion by former USSC Chair Diane Murphy) discusses this issue at length. Here is a snippet:
By selecting a reasonableness standard of review as most compatible with the Act and applicable to sentences either "within or outside" the range of the now advisory guidelines, Booker, 125 S.Ct. at 765, the Court conformed the Act to its sixth amendment remedy and provided for appellate review over all discretionary sentencing decisions for unreasonableness. As we recognized in United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005), calculation of the appropriate guideline sentence is only the first step in sentencing decisions under Booker, for the court must also consider the § 3553(a) factors before making its ultimate decision. Under this regime a guideline sentence, although presumptively reasonable, United States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir. 2005), can still be unreasonable when all the § 3553(a) factors are taken into consideration. The extent of a departure was always reviewed under the Act for reasonableness using the § 3553(a) factors, 18 U.S.C. § 3742(e)(3), and consideration of these factors under the discretionary guideline system is similarly subject to review for reasonableness.
Adoption of the rule urged by the government, that a sentence within the guideline range is not subject to reasonableness review, would have the effect of returning federal sentencing to something like the mandatory guideline system found unconstitutional in Booker. See 125 S.Ct. at 746. Under such a rule trial courts would be encouraged to sentence only within the guideline range to avoid having sentences overturned on appeal. This would effectively restore the rigidity in sentencing which the Booker majority held to violate the sixth amendment rights of defendants. See id. at 750-51. It is unlikely that Congress would have intended the appellate review it created in § 3742(a) to be construed so restrictively since the legislative history shows its purpose in enlarging such review was to reduce disparity and to identify potential sentencing problems. See S. Rep. No. 98-225, at 49, 151 (1983).
In contrast to the sentencing scheme before Booker when a sentence outside the mandatory guideline range was permitted only on very limited grounds, there are now more sentencing variables. Both the grounds to support a sentence outside the range and the sentencing judge's discretion in weighing those grounds have increased significantly. While appellate review of sentences within the guideline range was not seen as essential to the functioning of the original mandatory system, with advisory guidelines appellate review of sentences both within and without the guideline range is critically important to meet the congressional goals of eliminating sentencing disparities and refining the guideline system.
Notably, the Eighth Circuit's official opinion page also shows that today the Court has issued a number of other notable Booker rulings. Of particular note, Chief Judge Loken's concurrence in US v. Wing, No. 05-2263 (8th Cir. Jan. 6, 2006) (available here) adds some additional interesting spice to the Seventh Circuit's assertion, discussed here, that "the concept of 'departures' has been rendered obsolete in the post-Booker world."
More Pho follow-up
I have explained here my concerns with the First Circuit conclusion in Pho (basics here) that a district court's decision to apply a 20:1 crack/powder ratio rather than the 100:1 ratio "was incorrect as a matter of law." But there are more Pho issues to explore, especially with respect to what might happen in the wake of this important decision. (The basics of the Pho decision and some questions about its aftermath are well covered in this Providence Journal article on the case.)
For instance, I am wondering when other circuits will address this issue, and whether they will get in line behind Pho or instead give us a circuit split. I am also wondering how district courts in the First Circuit and elsewhere might respond to Pho and its ruling that "case-specific considerations" are required to justify a decision to deviate from the crack guidelines. Also, might any data or policy statements on this issue emerge from the Sentencing Commission (which has stated, in its most recent list of priorities, that it is working on the crack/powder matters again)?
In addition to looking ahead, there is more to say about the Pho decision itself. Spurred by my critique of Pho, Yale Law student Eric Citron — a self-described "sentencing junky" who provided this report on the Pho oral argument last month — wrote up a thoughtful four-paragraph defense of Pho. Because Eric expressed interest in a dialogue on these topics, I could not resist the urge to respond to each of his paragraphs. For Pho fanatics, this uber-commentary on the case can be downloaded here: Download a_dialogue_about_pho.doc
New Jersey death penalty moratorium nearly official
As detailed in this New York Times article, "[w]ith a crucial committee vote on Thursday, New Jersey lawmakers all but assured that the state's death penalty would be suspended for a year so that its fairness and expense can be studied." As the article notes, if "the bill that advanced on Thursday becomes law, as expected, then New Jersey would be the third state to impose a moratorium and the first to do so through legislation." (Bonus points to readers who know, without clicking through to the NY Times article, which two states have had moratoriums via executive decisions.)
Of course, as I noted here when this Garden State capital moratorium started gaining momentum, New Jersey has essentially had a de facto (and pricey) moratorium on executions for more than two decades. As detailed in a report discussed here, the state has spent over $250 million on administering its capital punishment system without having executed anyone. For a lot more background on capital punishment in New Jersey, this Trenton Times article provides additional coverage.
January 5, 2006
Why Pho seems wrong: what "law" was violated?
The First Circuit's decision in Pho (basics here) asserts that a district court's decision to apply a 20:1 crack/powder ratio rather than the 100:1 ratio in the guidelines "was incorrect as a matter of law." But as I read the opinion, I kept wondering what "law" was violated when the district judge decided, relying on the guidance of the sentencing commission, that this revised ratio would best effectuate Congress's commands in section 3553(a) of the Sentencing Reform Act.
Judge Seyla references 3553(a) throughout his opinion in Pho. But, like Judge Breyer in the Booker remedy, all the references in Pho fail to mention the one plain textual command of 3553(a): "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." Notably, in footnote 3, Judge Selya quotes 3553(a) at length, but leaves out any reference to this explicit instruction from Congress to sentencing judges. Also conspicuously absent in Pho's footnote 3 is the full text of 3553(a)(6), which commands judges to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
In light of the expert Commission work in this area — which finds that the guidelines' 100:1 ratio overstates the seriousness of crack offenses relative to powder cocaine offenses andcreates unwarranted sentence disparities between crack and powder sentencing — the application of a 20:1 ratio seems to be a more faithful application of Congressional directives in 3553(a) than is the opinion in Pho. (On this last point, consider the findings in Chapter 8 of the US Sentencing Commission's 2002 Report: "After carefully considering all of the information currently available — some 16 years after the 100-to-1 drug quantity ratio was enacted — the Commission firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act.")
Put simply, the Pho opinion elevates 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. (Where is a textualist like Justice Scalia when we need him?) Moreover, the only clear intent of Congress — namely that, as exaplined by the Pho court, "Congress plainly believed that not all cocaine offenses are equal and that trafficking in crack involves different real conduct than trafficking in powder" — is fully served application of 20:1 ratio. That ratio still, in one sense, treats crack offenses 20 times more seriously than powder cocaine offenses. But apparently that's not good enough, so says the First Circuit.
Of course, in all this Pho criticism, I may be somewhat biased due to my work on an amicus brief that was soon to be filed in another First Circuit case raising the same crack/cocaine issue. (It now looks like that effort might now be converted into a brief in support of a petition for rehearing en banc.) But I find the opinion in Pho frustrating because it effectuates the most shallow conception of the goals of federal sentencing reform and falls prey to what Marc Miller has fittingly described as "Sentencing Equality Pathology". After Blakely and Booker, I was hoping our common law of sentencing might do better, and today I am sorely disappointed.
Cooperating Dynegy executives get relatively light sentences
As detailed in this Houston Chronicle story, this afternoon "a former Dynegy vice president [Gene Foster] received 15 months in jail while a lower level employee [Helen Sharkey] received a one month sentence for their roles in a 2002 finance scheme." This would seem to be relatively good news for the highest profile Dynegy defendant, Jamie Olis, because (as discussed here) prosecutors had recommended significantly higher sentences for both Foster and Sharkey.
At the very least, these sentences suggest that Judge Sim Lake considers the prosecutors' recommendations too harsh; they may also provide a relative benchmark for the sentence being contemplated by Judge Lake for Jamie Olis. Of course these sentences also reveal that Judge Lake does not think he can or should go too lightly on these defendants: their laywers were asking for only a term of probation.
As detailed here, Jamie Olis' resentencing was postponed yesterday so that Judge Lake could consider more fully the arguments over loss calculations under the guidelines. In light of all these developments, I am sticking to my prediction that Judge Lake will impose a sentence on Jamie Olis of around 5 to 7 years.
Related posts with more background on the Jamie Olis case:
- Will it be a happy new year for Jamie Olis?
- Government arguing for 15+ years for Jamie Olis
- Attorneys for Jamie Olis urging a 5-year cap for resentencing
- Jamie Olis sentence overturned by the 5th Circuit!
- Potent commentary on Olis case
- Are the federal guidelines too tough on white-collar offenders?
Second Circuit rejects indictment claim after Booker
Today is quite the Booker day in the circuits, with notable rulings from the First Circuit and Sixth Circuit as well as the Eighth Circuit's releasing another copious set of sentencing opinions. The Second Circuit now adds to the fun with its ruling in US v. Sheikh, No. 05-1747 (2d Cir. Jan. 5, 2006) (available here), in which the Court rejects the defendant's argument "that the Fifth and Sixth Amendments require that district courts may only sentence defendants based on facts alleged in the indictment."
As discussed in this insightful post over at the Second Circuit Blog, the language used to rejected the defendant's claim in Sheikh could actually be a win for other defendants. The Sheikh court states that "district courts may continue to calculate Guidelines sentences and sentence defendants based on facts not alleged in the indictment, as long as those facts do not trigger a mandatory minimum sentence or increase the penalty beyond the prescribed statutory maximum sentence, without violating the Fifth or the Sixth Amendment." Slip. at 2 (emphasis added). As the Second Circuit Blog notes, the language I have emphasized above would actually appear to expand indictment rights in light of the Supreme Court's ruling in Harris that none of the Apprendi rights apply to the application of mandatory minimums.
First Circuit rejects reduced crack/powder ratio
In an important ruling in the on-going post-Booker debate over the federal sentencing disparity between crack and powder cocaine (basics here and here and here), the First Circuit today in US v. Pho, No. 05-2455 (1st Cir. Jan. 5, 2005) (available here), rejected a district court's decision to apply a 20:1 crack/powder ratio rather than the 100:1 ratio that is specified in the sentencing guidelines. Here is the opening paragraph of the opinion authored by Judge Selya:
We are called upon to answer a vexing question of first impression at the appellate level: May a federal district court, consistent with the teachings of United States v. Booker, 125 S. Ct. 738 (2005), impose a sentence outside the advisory guideline sentencing range based solely on its categorical rejection of the guidelines' disparate treatment of offenses involving crack cocaine, on the one hand, and powdered cocaine, on the other hand? The court below believed that it could and sentenced the defendants in accordance with that belief. After careful consideration, we conclude that the district court's approach was incorrect as a matter of law. Consequently, we vacate the defendants' sentences and remand for resentencing.
In part because I believe this opinion is wrong, and in part because I have to look up some of the words Judge Selya uses in the opinion, lots and lots commentary will follow soon.
UPDATE: Here are some of the key passages of Pho, which will surely warm the heart of fans of the sentencing guidelines and dishearten those eager to see a more nuanced understanding of guideline application after Booker:
The clear import of [the SRA's] statutory framework is to preserve Congress's authority over sentencing policy and to guarantee that the exercise of judicial discretion over sentencing decisions be based on case-specific circumstances, not on general, across-the-board policy considerations.
Nothing in Booker altered this distribution of authority over sentencing policy. Booker established that a district court may exercise discretion in fashioning sentences — but that discretion was meant to operate only within the ambit of the individualized factors spelled out in section 3553(a).
The decision to employ a 100:1 crack-to-powder ratio rather than a 20:1 ratio, a 5:1 ratio, or a 1:1 ratio is a policy judgment, pure and simple. After all, Congress incorporated the 100:1 ratio in the statutory scheme, rejected the Sentencing Commission's 1995 proposal to rid the guidelines of it, and failed to adopt any of the Commission's subsequent recommendations for easing the differential between crack and powdered cocaine. It follows inexorably that the district court's categorical rejection of the 100:1 ratio impermissibly usurps Congress's judgment about the proper sentencing policy for cocaine offenses.
Sixth Circuit publishes (opaque) approval of downward departure
Today the Sixth Circuit decided to publish its ruling last month in US v. Williams, No. 04-4152 (6th Cir. Dec. 14, 2005), published (Jan. 5, 2005) (available here), which rejects a government appeal of a district court's (pre-Booker) four-level downward departure in a felon-in-possession case. Given the case's procedural history and the opaque discussion in the opinion, the clearest aspect of Williams is that it is unclear.
First, at the outset of the discussion, the court states "[w]e review a district court's departure from the recommended Guidelines sentence under an abuse of discretion standard," but it then notes that after Booker "the sentence imposed by the district court must be reasonable." The rest of the opinion does not clarify which standard is being applied, and conspicuously missing is any discussion of the Feeney Amendment's (pre-Booker) modification of departure review standards. Second, through a discussion of the Sixth Circuit's prior Jackson opinion (discussed here), the Sixth Circuit's brief opinion in Williams seems to conflate a number of potentially distinct issues relating to departures and variances after Booker.
Despite its opaque reasoning, the decision in Williams does usefully reinforce the basic principle that district courts should thoroughly explain the bases for their sentencing determinations, especially when deciding not to follow the guidelines. Williams also highlights that, whenever a district court does adequately explain its sentencing decision, that decision is likely to be affirmed.
The kind of case that can prompt needed reforms
A helpful reader sent me this fascinating sentencing story from Vermont, commenting that "maybe this is why some jurisdictions have guidelines":
A Williston man who admitted repeatedly sexually assaulting a young girl for four years was sentenced Wednesday to spend 60 days in prison — a punishment that angered the victim's family but was defended by the judge as the only way to provide counseling for the perpetrator....
The problem, agreed the judge and attorneys, was that the state Corrections Department decided it would not offer any sex-offender treatment for Hulett while he is in prison.... Judge Edward Cashman's sentence, which he handed down after a two-hour hearing in Vermont District Court in Burlington, could incarcerate Hulett for the rest of his life if he fails to obtain counseling or otherwise follow instructions once he is freed in 60 days....
Prosecutors wanted Hulett incarcerated for at least eight years, and in impassioned pleas the girl's family members asked for a stern sentence. Cashman, though, told the crowded courtroom that punishment was not his priority in sentencing Hulett, but rather finding treatment for the man to prevent future abuse....
Prosecutor Nicole Andreson said punishment is a valid component of a sentence. "This is not only about Mr. Hulett," Andreson said in arguing for an eight-year minimum. "To sentence him to any less demeans the level of trauma he has caused. To sentence him to any less will send a disturbing message of tolerance to the community."
Cashman disagreed, saying retribution "accomplishes nothing of value." "We feed on anger," the judge said. "That's not my job. I've got to do something that solves problems. The one message I want to get through is, anger doesn't solve anything."
Hulett spoke briefly at the end of the hearing, crying as he apologized for his actions. "I want to get treatment. I need it," he said before officers led him from the courtroom to begin his prison term.
After the hearing, Andreson said the main question the hearing raised is why Hulett wasn't eligible for sex-offender treatment as an inmate.
A pigskin guidelines omen?
So, is it just a coincidence that the Texas Longhorns win the National Championship in the year that the US Sentencing Guidelines Manual has a burnt orange cover? Whether fate or fortuity, I'm glad the big game lived up to the hype. Perhaps having swing-voting Justice Sandra Day O'Connor help with the opening coin flip ensured we would get a game with lots of momentum swings back and forth. (Relatedly, considering that my Buckeyes did me proud and that the Nittany Lions won a thriller, I know there are a lot of sentencing/football fans who will have big smiles for quite some time after this exciting bowl season.)
In addition to now wanting next year's Guidelines Manual to be Scarlet and Gray, I cannot help but wonder if Jamie Olis is now especially disappointed that his resentencing has been postponed. The old canard about discretionary sentencing was that a defendant's fate could turn on whether the judge's breakfast put the judge in a pleasant or foul mood. On the assumption that everyone in Texas will be in a pleasant mood after Wednesday's amazing game, Thursday would probably be a good day to be sentenced in the Lone Star State.
Clemency and pardon news and notes
- This potent editorial from the Washington Post assails President Bush's "dismal" pardon work power. Inspired by the President's uninspiring pardon record (discussed here and here), the Post editorial make a beautiful case for the exercise of this unique executive power: "The pardon power was imagined as a lively check on the criminal justice system, a way for simple justice to prevail over all of the legalisms and procedures of the courts.... Continuous neglect of a legitimate power is itself a form of abuse."
- This AP story reports that California Gov. Arnold Schwarzenegger has now said "he would not hold a clemency hearing for Clarence Allen, who is scheduled to be executed Jan. 17." As detailed in prior posts here and here, Allen has cited his old age and severe illness in seeking clemency.
- This press release details the case for clemency being made to out-going Virgina Governor Mark Warner which cites exonerating evidence in the case of four former Navy men convicted of rape. This Washington Post editorial also talks up the case for clemency.
- This AP article details that the latest trend on Ohio's death row is for defendants to refuse to ask the governor for clemency.
An interesting question of guideline interpretation?
According to the opening sentence of Judge McConnell's decision for the Tenth Circuit in US v. Smith, No. 04-5085 (10th Cir. Jan. 4, 2005) (available here), the defendant's appeal "presents the interesting question of how to interpret the United States Sentencing Guidelines when the application notes suggest a broader interpretation than the plain language." Readers with their interest piqued will have to follow the link to see how this "interesting question" is raised and resolved, though I will give away the ending to this story of guideline intrigue: sentence affirmed.
January 4, 2006
Resentencing for Jamie Olis (but not for his co-conspirators) postponed
As detailed in this updated AP story, the "day before he was to re-sentence Jamie Olis, U.S. District Judge Sim Lake called a surprise hearing to tell Olis' lawyers and prosecutors that he wanted to hear expert testimony first." Lots of background on this case can be found in this post, and Tom Kirkendall already has this strong analysis of Judge Lake's decision to take more time to review recently-filed materials relating to the key loss issues.
Notably, the AP article states: "Olis' two co-conspirators will be sentenced Thursday, but Olis will wait until later this month, Lake said." Here is why their sentencings should still be quite interesting:
[Still] to be sentenced Thursday are two other former Dynegy executives charged in the scheme — Olis' former boss, Gene Foster, and former in-house Dynegy accountant Helen Sharkey. Both pleaded guilty to conspiracy in August 2003.
Prosecutors recommended that Foster, who testified against Olis, serve 2 1/2 years in prison and that Sharkey serve 18 months. But lawyers for Foster and Sharkey want Lake to sentence each to probation, or a combination of probation and home confinement for Sharkey, who gave birth last month to twin boys.
Notable (and nonsensical?) remedy for Vienna Convention violation
In fits and starts, the Supreme Court has been considering what must be done when foreign nationals claim violations of their consular rights under the Vienna Convention, and it will soon be hearing argument in two cases on these issues. But yesterday, down the road a stretch, a state court judge in Virginia has taken up these issues through a notable (and groundbreaking?) ruling in a death penalty case.
As detailed in this Washington Post article, a "Vietnamese man accused of strangling a Fairfax County woman and her 22-month-old daughter will not face the death penalty, a Fairfax judge ruled yesterday, because police violated the man's Vienna Convention rights by not informing him that he could contact his embassy." This ruling by Fairfax Circuit Court Judge Leslie M. Alden, which "came six days before the scheduled capital murder trial of Dinh Pham," is notable in part because it stems from the same jurisdiction as one of the cases to be considered by the Supreme Court.
But this ruling (which I cannot yet find on-line) has me scratching my head because of the remedy selected for the violation of the defendant's Vienna Convention rights. The article suggests that Judge Alden simply declared the death penalty unavailable, but "rejected the more drastic option of throwing out Pham's statement to police, and he still faces two murder charges and possible life in prison." Especially without seeing the opinion, it is hard understand the connection between the application of the death penalty and the rights violation here. Excluding the defendant's statement or perhaps going so far as to bar the prosecution altogether might logically flow from the Vienna Convention violation, but just taking the death penalty off the table seems to be a peculiar (though perhaps safe) response.
UPDATE: A terrific colleague was able to get me a copy of Judge Alden's ruling in Virginia v. Pham, which can now be downloaded below. Seeing the ruling clarifies matters considerably, and also make this case even more interesting. It appears that the defendant's lawyers moved for the preclusion of the death penalty, so arguably Judge Alden simply granted the limited remedy sought by counsel.
In addition, the final section of the opinion speaks expressly to the appropriateness of the remedy in this case, and that section builds a fascinating (and somewhat compelling) argument based on Virginia Governor Mark Warner's recent decision to grant clemency to death row defendant Robin Lovitt.
Attorneys for Jamie Olis urging a 5-year cap for resentencing
As detailed in this AP story, new papers flied by Jamie Olis' lawyers in preparation for his resentencing tomorrow argue "that a sentence exceeding five years is not 'necessary,' while less would be 'sufficient.'" Of course, this perhaps peculiar phrasing comes straight from Congress' command in 3553(a) that a federal sentencing judge impose "a sentence sufficient, but not greater than necessary, to comply with" the traditional purposes of punishment.
Last month, as noted here, the government filled its resentencing memo urging a guideline sentence of at least 188 months. And a few days ago, I posted here some of the earlier Olis filings, in which lawyers for Olis had avoided proposing a specific sentence but argued generally against the need for a significant prison term. In that post, I also predicted (and continue to predict) that Judge Sim Lake will impose a new sentence of around 5 to 7 years and that another round of appeals from the resentencing is perhaps inevitable.
- Will it be a happy new year for Jamie Olis?
- Government arguing for 15+ years for Jamie Olis
- Jamie Olis sentence overturned by the 5th Circuit!
- Media coverage of reversal of Olis sentence
- Interesting Olis developments
- Potent commentary on Olis case
- Are the federal guidelines too tough on white-collar offenders?
UPDATE: As explained in this post, the Olis resentencing will not be until later this month.
Lots of notable Alito news
As this AP report details, Judge Alito has just received a unanimous well-qualified rating from the American Bar Association. Meanwhile, the People For the American Way, which is advocating "Judge Alito Must Not be Confirmed", has just released a 150+ page pre-hearing report attacking Judge Alito's record. Not surprisingly, as revealed in the report's executive summary, PFAW is not focused on sentencing issues while making its case.
Those interested in the sentencing and criminal justice angles on Alito should be sure to check out this post, where I have assembled my coverage of Alito/SCOTUS work in the crime and sentencing arenas. Those interested in culinary angles on Alito should should be sure to check out this article, which explores the success of the coffee named Alito Bold Justice. (Based on this success, I suppose it is only a matter of time before Taco Bell adds to its value menu an Alito Burrito.)
Extended 11th Circuit discussion of prior conviction exception
Today the Eleventh Circuit in US v. Gibson, No. 04-14776 (11th Cir. Jan. 4, 2005) (available here), issued a long opinion, per Judge Tjoflat, primarily discussing (1) the application of the "prior conviction" exception to the Apprendi-Blakely rule, and (2) departures from the career offender guidelines. Here is a portion of the opinion's opening paragraph:
The district court concluded that under Blakely v. Washington, 542 U.S. 296 (2004), it could not classify Gibson as a career offender because the Government did not prove to a jury the nature of Gibson's prior convictions (i.e., that those prior convictions were felonies involving controlled substances) or the fact that Gibson was at least 18 years old at the time he committed the offense in this case. We conclude that the Supreme Court's decision in Blakely, and its subsequent decision in United States v. Booker, 543 U.S. 220 (2005), did not prevent the district court from considering Gibson's prior convictions, determining his age at the time he committed the instant offense, and designating him a career offender.
A quick skim of the Gibson opinion suggests that there are no dramatic new declarations in its 42 pages. Nevertheless, the Gibson opinion provides a very clear and useful review of the state of the law in the 11th Circuit. Also, recalling the Ninth Circuit's recent emphasis in Kortgaard that the "prior conviction" exception is "narrow" and the Seventh Circuit's recent assertions that Booker rendered obsolete the concept of departures, the Gibson opinion reminded me how differently the different circuit have been reconstructing the post-Booker world.
January 4, 2006 in Almendarez-Torres and the prior conviction exception, Blakely in Appellate Courts, Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack
January 3, 2006
More holiday season highlights
After having now watched over and over some great football highlights, I am inspired to assemble here some holiday season sentencing highlights. As detailed below, the end of 2005 did not slow down the sentencing action in many areas:
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- The Blakely earthquake hits Vermont
- A Blakely threesome from the Oregon Supreme Court
- Reviewing Oregon's big Blakely rulings
- Blakely at 18 months: a recap of state high court rulings
BOOKER DEVELOPMENTS AND COMMENTARY
- Will it be a happy new year for Jamie Olis?
- Plea deal for Enron CAO Causey
- Sentencing notes on CJ Roberts' first year-end report
- Recent sentencing rulings in the circuits
- Guideline enhancement data from USSC
- Amicus brief in crack sentencing appeal
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- Too old and sick to die?
- The next high profile California capital case
- Perspective for another death penalty year
- A lesson in the death penalty, Texas style
- "The Eighth Amendment is a jurisprudential train wreck"
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- A thorough review of GWB's pardon work
- The state of shaming punishments
- Making sure crime does not pay (in book profits)
- The importance and power of POs and PSRs
HIGHLIGHTS OF HIGHLIGHTS
- Gearing up for Alito hearings
- Holiday weekend highlights
- Major sentencing developments for first half of 2005
- Major sentencing developments for second half of 2005
Should state supreme courts refuse to follow Gideon, Miranda, Blakely?
How Appealing just linked to this stunning op-ed by Justice Tom Parker of the Supreme Court of Alabama, which apparently appeared on Sunday in The Birmingham News. In his jaw-dropping commentary, Justice Parker contends that his colleagues on the Alabama Supreme Court should have declined to follow Roper in order to keep a juvenile killer on death row. Here is part of his argument:
State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the Court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are "precedents."...
The Adams case presented the Alabama Supreme Court with the perfect opportunity to give the new U.S. Supreme Court the occasion to overturn the unconstitutional Roper precedent. If our Court had voted to uphold Adams' death penalty, he would have appealed the decision to the U.S. Supreme Court. Because the U.S. Supreme Court can accept only a handful of the petitions it receives, the Court may not have heard the case at all, and Adams would have been executed as he deserves. However, if the new John Roberts-led court had taken the case, it could very well have overturned Roper.
But even if, in the worst-case scenario, the Roberts Court had taken the Adams case but failed to overturn Roper, the Alabama Supreme Court would have been none the worse for standing up against judicial activism.
After all, the liberals on the U.S. Supreme Court already look down on the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state.
We Alabamians will never be able to sufficiently appease such establishment liberals, so we should stop trying and instead stand up for what we believe without apology. Conservative judges today are on the front lines of the war against political correctness and judicial tyranny.
These quotes highlight not only Justice Parker's passion, but also his limited ability to count heads. None of the new Justices are replacing anyone in the Roper majority, so it would be quite a feat for a Roberts Court to undue Roper.
Moreover, I continue to find it remarkable that persons purportedly concerned about pro-family policies and evangelical Christian blessings become so aggrieved by a decision which precludes states from executing juvenile offenders. I wonder if Justice Parker has read the recent editorial series from his own Birmingham News, entitled "Choosing Life in a Death Penalty State," which forcefully argues that a true pro-family, evangelical Christian commitment to a culture of life calls for doing away with the death penalty altogether.
Finally, I wonder if Justice Parker thinks that state supreme courts ought to actively resist the application of other contentious SCOTUS rulings like Gideon or Miranda or Blakely. (Of course, some might claim that California and Tennessee and a few other states are already actively resisting Blakely.)
UPDATE: I see Steve Vladeck at PrawfsBlawg has some more thoughts about the op-ed in this post titled "Apparently, the Supremacy Clause Doesn't Apply in Alabama."
Same old sentencing
As first noted here, I was kindly asked to comment on 2005 sentencing developments for a Year in Review issue of Legal Times. Thanks to permission from Legal Times, I can now post my short commentary, and it is available for download below.
The piece is entitled of "Same Old Sentencing: Federal guidelines, now advisory, still shape justice system." In a small space, I try to make of few interesting points about sentencing culture and sentencing doctrine in the wake of Booker and Roper. (For a more copious (and laborious) review of sentencing highlights from 2005, see my year-ending posts of note here and here.)
Dead Booker walking?: incentives to cooperate
The news of two recent high-profile plea deals that include agreements to cooperate — involving Enron CAO Richard Causey and lobbyist Jack Abramoff — has inspired me to revive my long-dormant "Dead Booker walking?" series. As detailed in this post, in anticipation of the brewing Booker fix debate, I hope in this series to explore those arguments which might be made in support of new sentencing legislation in response to Booker.
One possible argument for a Booker fix, which was expressed by AG Alberto Gonzales in a speech last summer (basics here, commentary here and here and here), is that the advisory guideline system created by Booker harmfully dilutes the incentive for defendants to cooperate with authorities. Here is how AG Gonzales explained this concern:
Our U.S. Attorneys consistently report that a critical law enforcement tool has been taken from them. Under the sentencing guidelines, defendants were only eligible to receive reductions in sentences in exchange for cooperation when the government petitioned the court. Under the advisory guidelines system, judges are free to reduce sentences when they believe the defendant has sufficiently cooperated. And since defendants no longer face penalties that are serious and certain, key witnesses are increasingly less inclined to cooperate with prosecutors. We risk a return to the pre-guidelines era, when defendants were encouraged to "play the odds" in our criminal justice system, betting that the luck of the draw — the judge randomly assigned to their case — might result in a lighter sentence.
I think there would be a strong argument for at least tweaking Booker if there is considerable evidence that key witnesses are now "increasingly less inclined to cooperate with prosecutors." But the recent Causey and Abramoff deals suggest that "key witnesses" remain willing to cooperate even though the guidelines are no longer mandatory. And evidence of continued post-Booker cooperation comes not only from high-profile cases, but also from the latest US Sentencing Commission statistics: these stats show post-Booker rates of cooperation that are comparable to pre-Booker rates of cooperation.
The persistence of cooperation not surprising given that Booker only made federal penalties somewhat less "certain," and Booker did not make federal penalties any less "serious." Moreover, the guidelines and other post-Booker sentencing realities still ensure in various ways that true cooperation gets rewarded at sentencing.
Of course, prosecutors might respond that the post-Booker disinclination to cooperate is reflected in the dynamics of plea negotiations — i.e., after Booker, prosecutors might have to work harder, or offer greater concessions, to get defendants to agree to cooperate. But given the extraordinary power that federal prosecutors have always had (and always will have) in plea negotiations, Booker's (slight?) recalibration of plea negotiating dynamics may be a virtue more than a vice.
Finally, in all the post-Booker debate over advisory guidelines, it is always critical to keep in mind, as I have stressed here and here, that (1) it was the Justice Department who vigorously urged the remedy of advisory guidelines if Blakely was deemed applicable to the federal system, and (2) the easiest (and most constitutionally sound) way to restore mandatory sentencing guidelines would be for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker. As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act or the guidelines, it would simply require Congress to express its intent for the guidelines to be mandatory even though aggravating facts triggering longer guideline sentences would now have to be proven to a jury or admitted by the defendant.
Prior posts in this series:
Notable Ninth Circuit decision finding plea invalid
Over a sharp dissent by Judge Kleinfeld, a Ninth Circuit panel today in US v. Adams, No. 04-30339 (DC Cir. Jan. 3, 2006) (available here), vacates a defendant's guilty plea "because we conclude that it was not knowing, voluntary and intelligent in light of the district court's failure to inform [the defendant] that he was subject to a mandatory fine under the Sentencing Guidelines." Judge Kleinfeld's dissent makes for especially great reading; it starts this way:
The majority decides this case contrary to binding circuit authority, and contrary to the views of all nine other circuits that have spoken to the question. Fortunately, the practical significance of the majority's holding should gradually dissipate as pre-Booker sentences complete their passage through appellate and post-conviction review. Unfortunately, there are plenty of pre-Booker sentences left to go.
DC Circuit rings in a not-so-new Booker year
The DC Circuit wins the prize for birthing the first new Booker baby of 2006, although the court's opinion today in US v. Godines, No. 04-3158 (DC Cir. Jan. 3, 2006) (available here) suggests that we are likely to see the same ole Booker in the new year.
The Godines opinion has some interesting tidbits of analysis, but the main ruling is simply that the district court's pre-Booker announcement of an "alternative sentencing rationale rendered harmless any error in the mandatory Guidelines sentence." Of interest is a concurrence which, though purporting to "clarify the state of the law of this circuit," seems to add an extra layer to Booker harmless error analysis.
UPDATE: I also now see a few sentencing dispositions on the Eighth Circuit's official opinion page that likewise suggest that Booker rulings in 2006 are going to look a lot like Booker rulings in 2005.
ANOTHER UPDATE: Folks interested in more new year analysis of Booker harmless error issues can also check out the Fourth Circuit's US v. Rodriguez, No. 04-4069 (4th Cir. Jan. 3, 2006) (available here), though that decision is most notable for its ruling about when a Booker error is preserved.
Lobbyist Abramoff strikes plea deal
According to this New York Times article, lobbyist Jack Abramoff "will plead guilty to three felony counts in Washington on Wednesday," which will give the Justice Department "a potentially critical witness to alleged patterns of corruption within the Republican leadership." Of course, as the article details, this plea deal is ultimately a story about sentencing:
Mr. Abramoff, 46, is pleading guilty to fraud, public corruption and tax evasion, setting the stage for prosecutors to begin using him as a cooperating witness against his former business and political colleagues. In exchange, Mr. Abramoff faces a maximum of about 10 years in prison in the Washington case.
After entering his guilty plea in United States District Court in Washington, Mr. Abramoff will also announce a plea agreement in a related Florida case, in which he was indicted last year. In that case, he is pleading guilty to fraud and conspiracy in connection with his purchase of the SunCruz casino boat line, and will face a maximum of about seven years' prison time....
[T]he deal reached with the Justice Department is all-encompassing, reducing the severe penalties Mr. Abramoff could have faced in either investigation, in exchange for his inside knowledge of certain lobbying work and legislative actions. One element of the deal is that any he can serve prison time in the two cases concurrently, although the sentencing will not take place until much further along in the investigation.
Looking forward to a big sentencing month
Though perhaps nothing can match the excitement of last January for sentencing fans, when Booker was finally decided, this January should also be quite the exciting sentencing month. Following a year with lots of sentencing highlights (assembled here and here), there is no slowing down at the start of 2006.
January 5: Jamie Olis, whose severe 24-year sentence for his role in the Dynegy fraud was reversed by the Fifth Circuit a few months ago, is scheduled to be resentenced. I have some Olis materials and predictions in this post.
January 9: The confirmation hearings for Judge Sam Alito begin. I have assembled major Alito/SCOTUS sentencing items in this post.
January 11: The Supreme Court hears argument in House v. Bell, another capital case raising innocence-related issues. The LA Times ran this recent article about the case.
January 12: The one-year anniversary of the Booker decision. As discussed here and here, there are rumors that both Congress and the Justice Department may celebrate this date with Booker fix activity.
Sometime in January(?): The Supreme Court will be continuing to consider cert. petitions from defendants in California and Tennessee (details here) complaining about these states' high courts dodging the application of Blakely. I have reason to believe that cert. will be granted on one of these cases sometime in January.
The next high profile California capital case
Less than a month after the high-profile Tookie Williams' case became a focal point for death penalty debate (details here and here), another planned California execution is generating media attention. As detailed in this article, California is scheduled to execute Clarence Ray Allen on January 17, and, at age 76, Allen will be the oldest inmate ever executed in California and the second-oldest in U.S. history."
The article on Allen notes the general "graying of death rows," as well as Allen's arguments to courts and in his clemency request that he is too old and sick to be executed. In this post from last week, you can download the clemency papers in the Allen case, which make for interesting reading.
January 2, 2006
Gearing up for Alito hearings
As I predicted back in October (here and here and here), Judge Sam Alito's background as a prosecutor (as well as his long record as a circuit judge) has led to plenty of criminal law discussion leading up to his confirmation hearings. Indeed, the Washington Post's recent long article, "Alito, In and Out of the Mainstream," included a section headed, "A Prosecutor's View." Based on an analysis of 33 criminal cases (listed here), that section had these insights:
[H]e sided with criminal defendants only three times, aligning with prosecutors more often than the average GOP-appointed judge in divided cases.... Alito voted in two-thirds of the criminal cases to uphold the rulings of a lower-court judge. His votes in one small group of those criminal cases — four appeals from inmates facing death sentences — were even more consistent. Every time, he voted against sparing the prisoner from execution. Nationally, federal appeals judges in disputed cases vote to give relief to prisoners sentenced to death about a third of the time.
Gearing up for the hearings next week, I have assembled below some of my coverage of Alito and SCOTUS work in the crime and sentencing arena:
ALITO NON-CAPITAL SENTENCING COVERAGE
ALITO CAPITAL SENTENCING COVERAGE
- Alito and the death penalty
- Alito and Feingold discuss the death penalty
- More on Alito the prosecutor and Alito on the death penalty
- Still more on Alito and the death penalty
- Critical commentary on Alito's death penalty work
- Counterpoint on Alito and the death penalty
- White paper critical of Alito's death penalty work
- Well, now the Alito nomination is in trouble...
GENERAL SCOTUS/SENTENCING COVERAGE
- Will the next SCOTUS nominee have any criminal law background?
- Does SCOTUS need a trial judge?
- Brave New Justice and sentencing issues
- Roberts, the cert pool, and sentencing jurisprudence
- Assailing the lack of criminal justice questions at the Roberts hearing
- Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
Reviewing Oregon's big Blakely rulings
As detailed in this post, the Oregon Supreme Court closed out 2005 with three important and interesting decisions addressing various "second generation" Blakely claims. Today, the Salem Statesman Journal has this effective article reviewing the rulings. Here are snippets:
The Oregon Supreme Court has cleared the way for juries to resentence hundreds of criminal defendants based on aggravating factors, lengthening their prison stays.... "It was not a good day for criminal defendants," said Peter Gartlan, the chief defender in the state Office of Public Defense Services, which argued one of the cases.
The justices sided with the state's arguments in a trio of decisions released on the final business day of 2005. They cleared some of the legal confusion that resulted from a 2004 U.S. Supreme Court decision that cast doubt on Oregon's criminal-sentencing guidelines. "These are important victories for the state," said Kevin Neely, a spokesman for Attorney General Hardy Myers....
Officials have estimated that the decisions could affect 200 to 300 cases, although no one has offered reliable figures.
Will it be a happy new year for Jamie Olis?
When discussing here and here the Fifth Circuit's reversal of the 24-year sentence of former Dynegy executive Jamie Olis, I predicted that his resentencing would be very interesting. That resentencing is scheduled for this Thursday, January 5th, and papers filed in the resentencing confirm my prediction. (Thanks to a helpful reader, below you can download sentencing memoranda filed by Olis and the government. They make for fascinating reading.)
As first noted here, despite the Fifth Circuit's reversal of the high loss calculation in the first Olis sentencing, the government is again claiming Olis should be held responsible for huge losses. The loss calculations, along with other arguments about Olis' culpability, lead the government to urge a guideline sentence of at least 188 months. Meanwhile, lawyers for Olis, stressing Olis' personal background and family situation while working through the sentencing factors of 3553(a), do not propose a specific sentence but argue generally against the need for a significant prison term.
Because of the intricate and high-profile facts and the reversal in the Fifth Circuit, the Olis case is a fascinating case study in the important and nebulous nature of loss determinations under the guidelines. But, even more compelling is the tension here between the long sentence that the guidelines seem to suggest, and the much lower sentence that would seem to satisfy Congress' command in 3553(a) that a sentencing judge impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" set forth in 3553(a)(2).
Since predictions are cheap, I will make some: the government won't even get more than 10 years for Olis, but the Houston Chronicle's wish for time served will not be granted, either. I think a sentence of around 5 to 7 years is likely, although I would not be surprised if it comes in much lower or much higher. And, whatever the number on January 5, it seems safe to predict someone will be appealing.
Perspective for another death penalty year
As detailed here and here and here, 2005 was another dynamic year for the death penalty. The outlook for 2006 is for more of the same: e.g., California has another high-profile execution planned for the coming weeks (details here), and the Supreme Court docket remains full of capital cases.
To gain further perspective on our legal culture of death, consider (in addition to this great Boston Globe feature) these recent newspaper pieces which take a capital look back and look forward:
- Charles Lane has this effective piece in the Washington Post, which explores "Changing Attitudes About the Death Penalty."
- This AP story explores recent developments in Ohio's use of the death penalty.
- This article from California notes that, as more cases are finally reaching the end of the appellate pipeline, the state may soon "carry out death sentences at a pace unseen in more than a generation."
UPDATE: The Los Angeles Times has this article about the capital case, House v. Bell, that the Supreme Court will be hearing next week.
January 1, 2006
A lesson in the death penalty, Texas style
Though football fans may be hoping USC will get a rosy lesson in Texas football this week, sentencing fans will be interested to see this Boston Globe magazine cover story in which reporters "went to Texas to see what we could learn from a land that embraces capital punishment." The article, which has this companion chronicle of the death penalty, has this assessment of Texas capital justice:
The record of Texas's capital punishment system, likened to a lottery by Texas Monthly magazine after a 2002 investigation, suggests how difficult it is to impose a death sentence justly. The Texas system’s shortcomings — among them court-appointed defense lawyers napping during a trial and inept crime labs — have been widely publicized. It is indigent defendants who end up with narcoleptic legal representation — and who end up on death row.
New sentencing laws for the new year
Ringing in the new year, newspapers are filled with stories of new and developing sentencing laws for 2006:
- As detailed in this AP story, the shame game comes to Tennessee in the form of a new law requiring drunk drivers "to do 24 hours of roadside cleanup while wearing orange vests emblazoned with the phrase 'I am a Drunk Driver'." TalkLeft here comments critically, and this post provides broader coverage of shame punishments.
- As this article details, Illinois is taking a more tradtional sentencing route to deal with drunk driving: new laws go into effect today that "substantially toughen penalties for certain repeat drunk drivers, people who drink and drive without a valid license or who are uninsured, drunk drivers transporting children, and people who kill another person when driving under the influence of alcohol."
- This article from California notes the recent enactment of "two new laws dealing with sex offenders" and details the provisions of pending bills that include broad residency restrictions and lifetime GPS tracking for sex offenders.
Sentencing notes on CJ Roberts' first year-end report
Today Chief Justice John Roberts issued his first "Year-End Report on the Federal Judiciary," and MSNBC has the full text here. I especially liked the first line: "New Year's Day in America means football, parades, and, of course, the Year-End Report on the Federal Judiciary." How Appealing has collected here some media coverage of the report, most of which focuses on the money issues that Roberts discusses.
To my disappointment, there wasn't any exploration of sentencing issues in the main part of Roberts' report, even though the Booker decision dramatically impacted the work of federal courts and the US Sentencing Commission. (Recall that the USSC is a part of the judiciary, and CJ Rehnquist in his year-end reports regularly discusses the USSC's work for the year.)
The Appendix to Roberts' report, which reviews the judiciary's workload, does have a number of sentencing-related items. The workload statistics reveal the impact of both Booker and Katrina. Here are excerpts:
Filings in the regional courts of appeals rose 9 percent to an all-time high of 68,473.... This increased stemmed from upswings in criminal appeals, original proceedings, and prisoner petitions following the U.S. Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005), and from continued growth in appeals of administrative agency decisions involving the Board of Immigration Appeals (BIA). As large as the increase is, it would have been higher had not the Court of Appeals for the Fifth Circuit’s operations been affected by Hurricane Katrina. That court's data include 92 appeals filings for the month of September, significantly lower than the 700 to 1,000 it reported for each month from October 2004 to August 2005. Nationwide, criminal appeals rose 28 percent to 16,060. The largest increases were in cases involving drugs (up 31 percent to 6,099), immigration (up 55 percent to 2,896), firearms and explosives (up 23 percent to 2,505), and property (up 15 percent to 1,967)....
Criminal case filings declined 2 percent to 69,575, and defendants in these cases declined one percent to 92,226. This drop was likely attributable in part to the effects of Hurricane Katrina. After Katrina, district courts in the Fifth and Eleventh Circuits reported fewer cases than normal. The decrease in filings in 2005 lowered the cases per authorized judgeship from 105 to 102. The median case disposition time for defendants rose from 6.2 months in 2004 to 6.8 months in 2005, as courts took longer to process post-Booker cases.