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.