January 4, 2006
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.