March 11, 2006
A high-profile case for sentencing based on acquitted conduct
As detailed in articles here and here, a "federal jury served up a mixed verdict Friday to former Atlanta Mayor Bill Campbell, convicting him on three counts of tax evasion, but acquitting him on four corruption charges." Interestingly, this Los Angeles Times account closes by noting that "after the verdict, the prosecutors were subdued but insisted that they were not disappointed that the jury had found Campbell guilty only on the three tax counts and not the racketeering and bribery charges."
Informed followers of federal sentencing know one reason why prosecutors might not be too disappointed by the split verdict: notwithstanding the acquittals, Campbell can still be sentenced for racketeering and bribery if the sentencing judge believes he is guilty by a preponderance of evidence. (As detailed here, the Eleventh Circuit in Duncan ruled soon after Booker that it was still permissible for judges to enhance sentences based on acquitted conduct.)
This Atlanta Journal-Constitution article previews Campbell's sentencing (which likely won't be for a few months) and rightly spots the acquitted conduct issue:
Following Friday's verdict, prosecutors said Campbell was guilty of not reporting $147,000 in income for 1997, 1998 and 1999. Steve Sadow, one of Campbell's former attorneys, said that if that is the case, prosecutors could argue that Campbell did not pay about $40,000 in taxes. Under federal sentencing guidelines, this amount calls for Campbell to spend between 10 months and 16 months in prison, said Sadow, who is an expert in sentencing guidelines.
The sentencing range could increase to between 21 months and 27 months in prison if [US District Judge] Story finds that $10,000 of unpaid taxes in any one year came from corrupt activities. And even though Campbell was found not guilty of the substantive corruption counts, the acquitted conduct can still be used against him at the time of sentencing, Sadow said. "There is going to be a real fight over all of this," Sadow predicted.
Posts on acquitted conduct and related issue:
Weekend sentencing reading
Here are a few recent sentencing-related papers of note from bepress and SSRN:
- Christ, Christians & Capital Punishment by Mark Osler
- A Comparative Perspective on the Sentencing Chaos in the U.S. by William T. Pizzi
- Mitigation and the Capital Defendant Who Wants to Die: A Study in the Rhetoric of Autonomy and the Hidden Discourse of Collective Responsibility by Daniel R. Williams
- Institutional Coordination and Sentencing Reform by Daniel C. Richman
Former state prosecutor finds religion
The Capital Times, a Wisconsin paper, has this interesting article about a former prosecutor-turned-pastor who is now speaking out about excessive incarceration and calling truth-in-sentencing "evil." Here's a snippets from the article:
It had been gnawing away at him for years, especially after the Wisconsin Legislature passed the "truth in sentencing" law in 2000. "I became concerned about the legal system's obsession with fairness, which is very different from justice," Jerry Hancock, a former attorney in the Dane County District Attorney's Office, noted during an interview at a west side coffee shop this week. "I mean, people can get a fair trial. But the results may be unjust."
Fairness, he adds, "is very important. But a system that ends up with more than half the inmates being African-American and Hispanic is not just. And I wanted to deal with those issues from a whole different perspective." So in 2001, Hancock, who had spent three decades in the criminal justice system, pointed his life in a new direction. With the encouragement of his wife Linda, he started taking classes at Chicago Theological Seminary so that he could become a minister and provide spiritual guidance for prisoners and their families, as well as for victims of violent crime.
Related posts on religion and criminal justice:
- Religion, sentencing and corrections
- Meth, mandatories and moral values
- Is there a "new right" on criminal sentencing issues?
- Miers, religion, and criminal justice issues
- Having faith in prisons
More on capital habeas reform in Patriot Act
In this post, I noted an important article from the Daily Journal discussing a provision of the new Patriot Act aimed at expediting capital habeas corpus petitions in federal court. Additional coverage of this issue is available from DPIC here and also from this article from Friday's Austin American-Statesman. Here is the start of that article:
For the 406 inmates on Texas' death row, the Patriot Act's wiretapping provision isn't the most worrisome thing in the bill. It's a change to federal habeas corpus procedure that could make it easier for Texas to execute them.
Under the new Patriot Act that President Bush signed into law Thursday, all states can now ask the U.S. attorney general to decide whether they qualify for a "fast-track" review. Getting fast track is based on whether a state's court-appointed defense attorneys meet a minimum competency standard. If a state qualifies, its prisoners have less time to file federal habeas petitions, and the federal judges reviewing state prisoner appeals are more limited in what they can consider.
Conference on wrongful convictions and the death penalty
Thanks to the DPIC, I see that The UCLA School of Law has an amazing-looking death penalty event planned for next month entitled, "The Faces of Wrongful Conviction: A Conference Examining Wrongful Convictions and the Administration of the Death Penalty in California." Basic information about the conference is available here, and the planned program is set forth on this page.
March 10, 2006
Eleventh Circuit ducks notable post-Booker notice issue
The Eleventh Circuit in US v. Scott, No. 05-12511 (11th Cir. Mar. 10, 2006) (available here), has rendered an interesting opinion in an interesting case involving a federal inmate being sentenced for threatening to harm the federal judge who imposed his original sentence. By finding a guideline calculation error, Scott remands for resentencing without having to address the reasonableness of an upward variance or whether "the district court should have informed [Scott] before the sentence hearing that it was contemplating sentencing him above the guidelines range based on the § 3553(a) factors, and should have given him notice of the grounds for doing so."
Eighth Circuit reverses another below-guideline sentence BUT also finds a within-guideline sentence unreasonable
Continuing the pattern detailed in this post, the Eighth Circuit today in US v. Lazenby, No. 05-2214 (8th Cir. Mar. 10, 2006) (available here) has reversed as unreasonable another below guideline sentence. Here is the official summary of the ruling from the Eighth Circuit's official opinion page:
District court granted Lazenby an unreasonable downward variance, as her sentence is 83% below the 70-month bottom of her advisory guidelines range; while defendant has demonstrated post-offense rehabilitation, the sentence imposed lies outside the limited range of choice dictated by the facts of the case; further the sentence results in an unwarranted disparity among defendants guilty of similar conduct; defendant Goodwin's sentence, while at the bottom of the advisory guidelines range, was not reasonable under the facts of this case, and her sentenced is reversed and her case remanded for resentencing.
IMPORTANT UPDATE: A reader has helpfully highlighted that I read Lazenby too quickly and failed to see that the opinion does break new ground with a ruling that a co-defendant's sentence was unreasonable for being within the guideline range. As the court explains:
Goodwin's appeal is more difficult. The district court expressly considered the Guidelines and the sentencing factors in § 3553(a) and imposed a sentence at the bottom of the advisory guidelines range. This sentence is presumed reasonable; only highly unusual circumstances will cause this court to conclude that the presumption has been rebutted. But a number of circumstances make this case highly unusual.
Bad Booker fix arising?
The possibility that the Justice Department might use next week's House hearing on Booker (details here and here) to push for a "minimum guideline system" Booker fix (a.k.a. topless guidelines) has provided inspiration for another Booker-skewed musical number. With apologies to John Fogerty, here is a rendition of "Bad Moon Rising" for these Booker times:
I see the bad fix arising.
I see topless guidelines on the way.
I see appeals and circuit splitting.
I see bad times today.
Don't go down tonight,
Well, your bound to be reversed,
There's a bad fix on the rise.
I hear DOJ ablowing.
I worry the end is coming soon.
I fear dockets over flowing.
I hear defendants' rage and ruin.
Don't go down tonight,
Well, your bound to be reversed,
There's a bad fix on the rise.
Hope you got your motions together.
Hope you are prepared to go up High.
Looks like we're in for nasty litigation.
One eye is taken for an eye.
Other Blakely and Booker song parodies and musical fun:
- Take a Walk on the Blakely Side
- 'Twas the Night Before Booker
- Same as it ever was...
- A musical summary of Booker appeals
- Songs in the key of 3553
White-collar sentencing and prison realities
The Kansas City Star has this interesting article on the white-collar sentencing world entitled, "About to do time? Let’s pick a prison: White-collar offenders shop the system." The article discusses both federal sentencing and federal prison realities for white-collar offenders. Here is a snippet:
In past years, white-collar offenders often got off with probation and a warning. No longer — thanks to harsher sentencing guidelines, tough prosecutors and stern judges.
Now, it's less a question of whether you'll be sentenced to prison, but how long you'll serve and where, with defense lawyers taking nearly a consumer advocacy role helping clients get the lightest sentence possible in the least restrictive prison environment. Usually that means a minimum-security camp close to home.
Some related posts:
- Pondering white-collar sentencing
- A pattern of white-collar leniency?
- White-collar Booker breaks
- Are the federal guidelines too tough on white-collar offenders?
- Tough sentences for white-collar offenders
Follow-up on First Circuit's work in Jiménez-Beltre
Though I am now fixated on Booker fix buzz because of the big hearings next week in the House and USSC (details here and here), the notable work on post-Booker sentencing by the First Circuit in Jiménez-Beltre (basics here) merits some additional attention and praise.
First and foremost, I believe Jiménez-Beltre is the first circuit opinion to endorse the notion that the guidelines should be given "substantial weight" in post-Booker sentencing. But, of course, the doctrines and patterns of reasonableness review in all the circuit have made it pretty clear that most circuits have at least implicitly endorsed this concept.
Second, the First Circuit should be praised for its relatively quick and effective en banc work. Argument in Jiménez-Beltre was only a month ago, and the court was able to produce a ruling with four quite thoughtful opinions in short order. I wish other circuits had the good sense to take up major post-Booker issues en banc: these matters impact thousands of sentencings and hundreds of appeals in nearly every circuit and they clearly merit the collective deliberation and input that en banc proceedings foster.
Third, though I am personally impressed most by the separate opinions of Judges Lipez and Torruella, there is something for everyone in Jiménez-Beltre. I suspect Judge Howard's concurrence (which really is a dissent in its reasoning) will get cited in many government briefs, and prosecutors and defense attorneys in the First Circuit will surely emphasize different aspects of Judge Boudin's majority opinion. Discussing Jiménez-Beltre at length here at the PRACDL blog, Tom Lincoln captures the decision's mixed message:
While Jiménez-Beltre does leave some flexibility to the defense, it is far from what most defense counsel who have followed Booker developments would have desired. If you ask me whether it could have been worse, the answer is yes, of course.
A local perspective on Foster
This short piece in the Marietta Times entitled "New sentencing rule felt locally" provides additional local perspective on the possible impact of the Ohio Supreme Court's recent Foster ruling, which found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy. Here is the article's lead: "Recent changes to Ohio's law, which call for the resentencing of hundreds of convicted felons, is expected to be a drag on local courts for some time, but lead to tougher penalties for some offenders."
Recent posts on Foster:
- Ohio applies Blakely and the Booker remedy!
- What is exactly the Blakely remedy in Ohio?
- A prosecutor's view on Foster
- A sentencing judge's view on Foster
- Fascinating Foster follow-up on Ohio sentencing reforms
- Ohio defenders seek reconsideration of Foster's retroactive application
March 9, 2006
Buzz about the House hearing on Booker
As detailed here, next week is going to be about brackets and Booker hearings. And I now have more information about the likely witnesses for the House Subcommittee's oversight hearing scheduled for Thursday March 16 on "US v. Booker: One Year Later — Chaos or Status Quo?". The four persons likely to testify will be:
- USSC Chair Judge Ricardo Hinojosa
- Criminal Law Committee Chair Judge Paul Cassell
- Attorney James Felman (who should, I think, be able to present an ABA position)
- A representative of the Department of Justice
Among the many interesting storylines will be whether DOJ will use this hearing to push for a "minimum guideline system" Booker fix (aka topless guidelines). Recall that AG Alberto Gonzales endorsed this idea when calling for a legislative "Booker fix" in a speech this past summer (basics here, commentary here and here and here). Relatedly, I wonder if the Sentencing Commission will make any specific legislative recommendations or will just be content to set forth data and express its eagerness to work with Congress.
Anticipating a Booker fix showdown, I can provide lots of background on the brewing Booker fix debate. For example, there is my on-going "Dead Booker walking?" series which explores arguments that DOJ might make in support of a Booker fix:
Additional useful background can also be found in the recent Legal Affairs' Debate Club at this link where Professor Frank Bowman and I explored the future of federal sentencing. And, of course, three recent issues of the Federal Sentencing Reporter linked below have Booker coverage galore:
Applying Ford and Atkins in the Fourth Circuit
As detailed here by Howard, the Fourth Circuit today issued an interesting split 7-6 en banc ruling in Walton v. Johnson, No. 04-19 (4th Cir. Mar. 9, 2006) (available here), that ultimately rejects a Virginia death row inmate's habeas claims that "he is both mentally incompetent and mentally retarded and, therefore, his execution is precluded under Ford v. Wainwright, 477 U.S. 399 (1986) (prohibiting the execution of insane inmates), and Atkins v. Virginia, 536 U.S. 304 (2002) (prohibiting the execution of mentally retarded inmates)."
Anyone interested in mental competency and the death penalty — or interested to see how Emily from Our Town finds her way into a concurring opinion — should be sure to check out Walton v. Johnson.
First Circuit speaks, en banc, on post-Booker sentencing and review
As already noted here by AL&P, the First Circuit this afternoon released it big en banc ruling in US v. Jiménez-Beltre, No. 05-1268 (1st Cir. Mar. 9, 2006) (available here), which is designed "to provide stable guidance in this circuit for the determination and review of post-Booker sentences." Altogether, Jiménez-Beltre runs 39 pages with lots of highlights. Here's a taste from the majority opinion written by Judge Boudin:
Central to the merits of this appeal is the question of what role the advisory guidelines should play in a post-Booker sentence. To begin with the conclusion, the guidelines continue in our view to be an important consideration in sentencing, both in the district court and on appeal, which should be addressed in the first instance by the sentencing judge. We do not find it helpful to talk about the guidelines as "presumptively" controlling or a guidelines sentence as "per se reasonable"....
Our conclusion is rooted in both parts of the Booker decision. In holding the mandatory regime unconstitutional, the flaw discerned by the five-Justice majority was that mandatory guidelines created mini-crimes requiring jury findings. Booker, 125 S. Ct. at 750-52. Although making the guidelines "presumptive" or "per se reasonable" does not make them mandatory, it tends in that direction; and anyway terms like "presumptive" and "per se" are more ambiguous labels than they at first appear.
At the same time, the guidelines cannot be called just "another factor" in the statutory list, 18 U.S.C. § 3553(a) (2000), because they are the only integration of the multiple factors and, with important exceptions, their calculations were based upon the actual sentences of many judges, Booker, 125 S. Ct. at 766-67; 28 U.S.C. § 994(o). The Sentencing Commission is also an expert agency charged by Congress with the task of promulgating guidelines and keeping them up to date. 28 U.S.C. § 994(c). In its remedial opinion, the Supreme Court has stressed the continuing role of the guidelines in promoting uniformity and fairness. Booker, 125 S. Ct. at 757-64.
Yet the guidelines are still generalizations that can point to outcomes that may appear unreasonable to sentencing judges in particular cases. Some of the guidelines in particular cases were not reflections of existing practice but were deliberate deviations or turned tendencies into absolutes. Others have been affected by directions from Congress. See, e.g., Pho, 433 F.3d at 61-63. Booker's remedial solution makes it possible for courts to impose non-guideline sentences that override the guidelines, subject only to the ultimate requirement of reasonableness.
Accordingly, at sentencing, the district court must continue to "consider the Guidelines 'sentencing range.'" Booker, 125 S. Ct. at 764 (quoting 18 U.S.C. § 3553(a)(4)). In most cases, this will mean that the district court will have to calculate the applicable guidelines range including the resolution of any factual or legal disputes necessary to that calculation -- unless they do not matter -- before deciding whether to exercise its new-found discretion to impose a non-guidelines sentence. Robinson, 433 F.3d at 35.
Booker March madness set to begin with a hearing double-header
Though I would rather be obsessing over seedings than hearings this time of year, everyone interested in the future of federal sentencing will have to find some Booker time next week while filling out NCAA brackets. Today, official notices have been posted about two big Booker-related hearings scheduled for next week.
First and foremost, confirming buzz I had been hearing, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has scheduled for 10am next Thursday (March 16) this oversight hearing interestingly entitled "United States v. Booker: One Year Later -- Chaos or Status Quo?". I expect a lot more details about this hearing will emerge in the days ahead, but my understanding is that there will be four witnesses to help the House Subcommittee take stock of the post-Booker world.
Second, the US Sentencing Commission has moved its planned March hearing up to Wednesday, March 15. As detailed here, the USSC has both a public hearing and a public meeting set for March 15, and the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding possible changes to the sentencing guidelines." Regular readers will recall that, as detailed here, the USSC's 88-page discussion of new proposed guideline amendments released in January fails to even mention the Booker ruling. However, I suspect there will have to be some Booker talk at the USSC hearing and meeting.
Adding to the March Booker madness, I have heard reliable buzz that, in anticipation of this hearing double-dip, the Commission is going to release its comprehensive Booker report very soon. Needless to say, I am eager to see what this report has to say, and I hope it includes the detailed data, discussed here and here, needed for a truly complete view of the post-Booker world.
Minnesota urging SCOTUS to embrace offense-offender Blakely distinction
In writings since Blakely, I have argued that the Sixth Amendment ought to be interpreted to distinguish between offense conduct and offender characteristics. In the article Conceptualizing Blakely, 17 Fed. Sent'g Rep. 89 (2004) (available here), I explain most fully why I think the text of the Constitution "connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment."
I am now pleased to report that, in seeking cert on a state Blakely case, the Minnesota Attorney General is arguing to the Supreme Court that Blakely should be "limited to facts related to the offense itself." Needless to say, I am convinced by the well-crafted argument in favor of an offense-offender distinction put forward by Minnesota in its cert petition in State v. Allen (which is available for download below). But only time will tell if SCOTUS is interested in this case or the distinction. Here are Minnesota's reasons for granting the petition in Allen:
This case presents this Court with an opportunity to answer an important question on which lower courts are split: Does Blakely only apply to facts about the crime that affect sentencing (offense-related facts, e.g., whether a gun was used in the crime)? Or does it apply more broadly to include facts about the perpetrator (offender-related facts, e.g., whether the offender is amenable to probation)?
That this is an important question cannot be seriously disputed: the answer will have a direct and significant effect on numerous states, and will have an indirect effect on every legislative body considering sentencing reform. Further, in reading Blakely expansively and rejecting any distinction between offender-related and offense-related facts, the Minnesota Supreme Court ignored both the plain language of the United States Constitution and Blakely's animating principle.
Some related posts:
March 8, 2006
Capital habeas reform in Patriot Act
With thanks to Howard for the link, you can now access here an effective and interesting article in the Daily Journal of California by Lawrence Hurley entitled "Patriot Act Shortens Death Appeals." As the article explains, the just renewed Patriot Act includes a "little-noticed provision aimed at expediting capital habeas corpus petitions in federal court, which could shave several years, possibly more than five, off the time it takes death row inmates to exhaust their appeals."
En banc Pennsylvania court upholds state sentencing scheme over Blakely challenge
Contributing to another yet another fascinating state Blakely day, the Superior Court of Pennsylvania, sitting en banc, has ruled that the state's guideline sentencing system is constitutionally sound. Here is the opening of the majority's ruling in Commonwealth v. Kleinicke, No. 986 MDA 2003 (Sup. Ct. Pa. Mar. 8, 2006) (available for download below):
In this appeal, we consider whether Appellant's sentence violated the Supreme Court's pronouncements in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). After careful review, we conclude that the principles for which these cases stand were not implicated because 18 Pa.C.S. § 7508 merely increased the minimum sentence and not Appellant's maximum term of imprisonment.
The ruling generated two notable and interesting dissents. When I get a chance to read all 71 pages, I hope to follow-up with commentary. In the meantime, Keystone State lawyers (and any state Blakely fans) are highly encouraged to weigh in on Kleinicke.
Ohio defenders seek reconsideration of Foster's retroactive application
Today brings an interesting development in the saga of Blakely's application to Ohio's sentencing law. Recall that last week, the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here). Now, the Foster defendants and a supporting amicus have filed for reconsideration in the Ohio Supreme Court claiming that the "retroactive application of this case's remedy to persons who committed their criminal offenses prior to the release of the Opinion, violates clearly established United States Supreme Court precedent regarding ex post facto and due process."
I have provided links to two briefs filed in support of this motion for reconsideration. Here is a portion of the argument summary from Amicus Curiae Cuyahoga County Public Defender:
Your amicus' argument against retroactive application to persons who committed their offenses prior to 9:00 a.m. on February 27, 2006, can be summarized as follows. At the time of the offense conduct, the criminal defendant enjoyed, as a standard range of punishment, a presumptive sentence of minimum and concurrent terms of imprisonment; a trial judge could only overcome that presumption by making statutorily prescribed findings. This Court correctly held that, because the trial judge and not a jury was entrusted with making these findings, the statutory scheme violated the Sixth Amendment right to trial by jury as interpreted by Blakely. In its opinion in the instant case at “Part V. Remedy,” ¶¶ 84-102, this Court has eliminated the presumptive sentence, thus relieving the trial judge of having to make any findings whatsoever before imposing a sentence at any point in the statutory range and before ordering terms of imprisonment to be served consecutively to one another.
Applied prospectively, this Court's employment of severance to save the statutory scheme from an unconstitutional interpretation, as a general matter, does not violate ex post facto and the due process considerations attendant thereto. However, when applied to those persons whose crimes were already committed, this Court's remedy unconstitutionally changes the rules to the defendant's detriment by stripping defendants of the protections of the presumptions discussed above. Just as the General Assembly could not amend the statutory scheme in this manner and legislate that the new scheme apply to those whose crimes have already been committed, this Court is precluded from doing the same.
UPDATE: The ACLU of Ohio has also filed a brief seeking reconsideration of the Foster remedy. The ACLU brief, which can be downloaded below, stresses separation of powers concerns. Here is a snippet:
The ACLU files this supporting brief as amicus to address [its] concern that ... Foster violates the separation of powers by usurping the legislative function specifically and exclusively allocated to the General Assembly.
March 8, 2006 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Fascinating op-ed on New Jersey sentencing
The New Jersey Star Ledger ran this fascinating op-ed which supports pending legislation to establish a permanent sentencing commission and says a lot about sentencing in New Jersey and elsewhere. Here are some highlights:
New Jersey residents have every right to insist that the state's criminal justice system promote public safety by implementing sentencing policies that reduce crime. Particularly in light of the budget crisis we now face, it's imperative that these policies make fiscal sense....
In the last 20 years, spending on correction-related items in New Jersey has increased more than 555 percent, from $203 million in 1982 to $1.033 billion in 2006. This increase was largely due to the explosive growth of New Jersey's prison population. From 1977 to 2002, the number of state inmates more than quadrupled. By 2002, 27,891 were behind bars. New Jersey also suffers the very costly distinction of having, by a wide margin, the highest percentage of prisoners incarcerated for drug offenses (36 percent compared with the national average of 21 percent)....
Although New Jersey is by no means unique in having to confront the exorbitant costs attributable to large and expanding prison populations, it lags behind many states that are promoting innovative reforms that reduce expenditures on corrections without sacrificing public safety. The reason? Since 1979, 22 states and the federal government have established permanent and independent sentencing commissions. In 2004, the New Jersey Commission to Review Criminal Sentencing was created, but only on a temporary basis, to ask just such questions and provide answers based on the best current data and state-of-the-art analytical research.
Pending legislation would make the commission permanent and charge it with the task of reviewing all proposed bills related to criminal sentencing. Passage of this bill would ensure that legislators and the public receive solid and impartial information on which to base their votes to guarantee that taxpayers get the most for their buck on corrections spending.
Seventh Circuit affirms within-guideline sentence
Perhaps I should stop reporting the dog-bites-man news of a within-guideline sentence being upheld as reasonable. But one line in the Seventh Circuit's work in US v. Ellis, No. 05-3676 (7th Cir. Mar. 8, 2006) (available here), really caught my eye.
In Ellis, the Seventh Circuit finds reasonable an 18-month within-guideline sentence for a former bishop who pleaded guilty to one count of willfully making and subscribing a false income tax return. Along with emphasizing the Circuit's presumption of reasonableness for a within-guideline sentence (background here), the Ellis court says: "While we would not necessarily impose the same sentence as the district court, our inquiry is bound by substantial deference to it." Though perhaps other rulings use this phrasing, I cannot recall previously seeing an assertion that reasonableness review binds a Circuit court to show "substantial deference" to a district court's sentencing judgment.
Fifth Circuit affirms long above-guideline sentence
Continuing the pattern detailed in this post, the Fifth Circuit late yesterday in US v. Reinhart, No. 05-30245 (5th Cir. Mar. 7, 2006) (available here), found reasonable a "non-guidelines" sentence of 235 months when the applicable guideline range was 121-151 months. The case has a long procedural history (and apparently ugly facts) that make the result not all that surprising. However, Reinhart is still important because of the Fifth Circuit's discussion of post-Booker sentencing and appellate review. Here are a few highlights:
Departure from the guidelines range, however, cannot alone support a finding of unreasonableness after Booker, in which the Court has indicated that the guidelines are merely one sentencing factor among many, and the calculated guideline range must be considered in conjunction with the other § 3553(a) factors. See Booker, 543 U.S. at 245-46. We therefore decline to give the guidelines the quasi-mandatory status urged by Reinhart.
Applying an abuse of discretion standard of review, we defer to the district court's reasonable assessment of the statutory factors, with particular emphasis on the nature and circumstances of the offense and Reinhart's history and characteristics. We will not require a district court to conform a sentence to the guideline range where that court has made a reasonable determination, based on a variety of other equally legitimate factors, that a non-guideline sentence is proper.
Reinhart provides yet another example, along with the cases detailed in this post, of an above-guideline sentence being subject to relatively deferential review. Meanwhile, below-guideline sentences continue to be subject to far greater scrutiny.
Some notable capital headlines nationwide
As is often the case, newspapers from many states have notable death penalty stories:
- From Georgia here, "Death penalty study narrowly clears committee"
- From Oklahoma here, "Legislation would allow death penalty for repeat sex offenders"
- From Wisconsin here, "Senate passes resolution asking voters to consider death penalty"
And over at FindLaw, Sherry Colb has this commentary about the Supreme Court's Guzek ruling (background here) entitled "The Death Knell of Residual Doubt: The Supreme Court Underestimates the Relevance of Innocence."
March 7, 2006
A gendered look at the post-Booker world
Professor Myrna Raeder has just posted on SSRN, available at this link, an interesting article entitled "Gender-Related Issues in a Post-Booker Federal Guidelines World." Here is a portion of the abstract:
This article updates, expands and revises the author's previous works concerning gender in sentencing in light of Booker. It describes the dramatic increase of the female incarcerated population in the federal system due primarily to drug offenses. It discusses the Guidelines concerted effort to produce identical sentences for men and women who commit similar crimes, which imposed draconian costs on families as well as on women who do not resemble the violent male drug dealers who inspired the severe federal drug penalties. Gender related differences concerning the impact of sentencing policy on children and on loss of parental rights by mothers are discussed. Booker's reasonableness analysis is analyzed as providing the flexibility to approve non-guidelines sentences based on gender-related factors. The practice of requiring judges to decide the appropriateness of discouraged downward departures before issuing non-guidelines sentences is critiqued as hindering more holistic sentencing of defendants.
The author also criticizes the guidelines discouragement of family ties departures, and argues that a completely gender-neutral sentencing scheme is bad policy because it has the potential of increasing intergenerational crime by ignoring the gendered realities of caregiving in our current society. A Guidelines amendment is proposed making children a legitimate departure factor in assessing the sentence of nonviolent sole and primary caretakers in light of constitutional and policy considerations viewing the family as a fundamental liberty interest....
Still clearing out the Booker pipeline
Two recent decisions from the Fifth and Seventh Circuits highlight that, a full 14 months after the Supreme Court's Booker ruling, the appellate pipeline still has cases being cleared out:
- The Fifth Circuit in US vs. Robles-Vertiz, No. 04-50585 (5th Cir. Mar. 6, 2006) (available here), disposes of an appeal GVRed by the Supreme Court by concluding the defendant "cannot satisfy plain error review [and] cannot demonstrate the presence of extraordinary circumstances that would entitle him to resentencing."
- The Seventh Circuit in US vs. Bonner, No. 02-4272 (7th Cir. Mar. 7, 2006) (available here), clarifies that a full resentencing should take place when a Paladino limited Booker plain-error remand would be appropriate but the original sentencing judge is unavailable.
Eighth Circuit affirms another large upward variance
Continuing a pattern detailed in this post (and in an informative comment), the Eighth Circuit today has yet again affirmed a significant upward departure and variance in US vs. Porter, No. 05-2342 (8th Cir. Mar. 7, 2006) (available here). In Porter, the guideline range was 41-51 months, an upward departure took the range to 57-71 months, and the district judge ultimately imposed the statutory maximum of 120 months in a felon-in-possession case.
Disappointingly, the Porter opinion has three full pages explaining why the district court's upward departure was justified, but then only three sentences explaining why an additional "significant upward deviation" qualifies as reasonable. And, not surprisingly, there is no direct discussion of how a sentence far more than twice the original guideline range satisfies Congress's plain instruction in section 3553(a) of the SRA that a district judge impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" set forth in 3553(a)(2).
The facts of Porter, which involve a serious state crime as well as the federal charge, make understandable why the district court desired (and the Eighth Circuit approved) to impose the maximum sentence permitted by law. But Porter serves as another example of how discretionary sentencing systems allow defendants to be sentenced for crimes beyond those that are the basis for conviction.
Federal executions stayed due to lethal injection concerns
Another chapter of the lethal injections scrummages is starting to play out in the federal system, where three executions were scheduled for this May. Here are highlights from this slightly confusing story from Indiana:
U.S. District Court Judge Ellen Segal Huvelle ordered a preliminary injunction Feb. 24, barring the Bureau of Prisons from executing James H. Roane Jr., Richard Tipton and Cory Johnson.
The three co-defendants had been scheduled to die in May at the Federal Correctional Complex in Terre Haute, home to the nation's federal death row. The trio were sentenced to die after being convicted in a string of drug-related murders in Richmond, Va....
In her ruling, Huvelle also stayed the three men's federal lawsuit on the constitutionality of lethal injections, pending a decision by the U.S. Supreme Court in a Florida case.... Separately, attorneys for Roane, Tipton and Johnson also are alleging in a federal lawsuit that lethal injection is cruel and unusual punishment. They filed the suit in December in the U.S. District Court for the District of Columbia.
Because it seems from this story that there is parallel litigation on the lethal injection issue, I am not entirely certain what the government's next step might be. I would suspect an appeal of Judge Huvelle's stay in the Seventh Circuit would be in order, though perhaps the Justice Department has little interest in pushing this issue until the Hill case is resolved in the Supreme Court.
Some recent related posts:
- The lethal injection debate rages on
- Back to the lethal injection scrum in Morales
- And the lethal injection litigation played on...
- Back to the lethal injection litigation
- More lethal injection scrummages
The USSC's work on immigration offenses
As detailed in this AP story, the US Sentencing Commission on Monday conducted another public hearings concerning its proposals to increase sentences for certain immigration offenses. The AP report notes that USSC members "questioned Monday whether their effort to stiffen penalties for immigration crimes would be rendered irrelevant or confusing by a parallel move in Congress."
The agenda and witnesses for Monday's hearing can be found here at the USSC's website, and background on the proposed changes can be found at pp. 7-26 of this document with all of this season's proposed guideline amendments. An interesting interim staff report outlining issues arising out of the USSC's work on immigration offenses is available here.
Sentencing provisions of South Dakota's new abortion ban
According to this CNN.com story, South Dakota's new law banning nearly all abortions provides that doctors who perform an abortion (except to save a woman's life) "can be charged with a felony punishable by up to five years in prison." This reference prompted me to check out the text of the new South Dakota law, which is known as the Women's Health and Human Life Protection Act and is available here. The law simply provides that any doctor performing an illegal abortion is guilty of "a Class 5 felony." A separate section, available here, sets forth South Dakota's sentences for different classes of felonies.
To get some perspective, I explored South Dakota's homicide offenses and discovered that the state's two degrees of murder, two degrees of manslaughter, and vehicular homicide are all graded more severely than a Class 5 felony. (Aiding a suicide, however, is a Class 6 felony.)
There seems to be relatively few Class 5 felonies in South Dakota. Based on a quick review of South Dakota's criminal laws, it appears that perjury under oath, promoting prostitution, forgery, distributing over an ounce of marijuana, and threatening a juror are all Class 5 felonies. Theft of a firearm and theft of over $1000 both qualify as more serious Class 4 felonies, along with rioting and vandalizing property worth over $1000 and tampering with a witness.
In short, South Dakota's new law to ban abortions, examined purely from a sentencing perspective, has some surprising company.
March 6, 2006
Intriguing CQ article on Sensenbrenner and mandatories
The March 3 edition of Congressional Quarterly Today (which is not available on-line) includes an intriguing article by Seth Stern entitled "Sensenbrenner Eases Off Mandatory Jail Time." As the title suggests, the article explores an apparent evolution in the sentencing attitude of F. James Sensenbrenner Jr., the powerful and important chair of the House Judiciary Committee. Here is the opening:
After Republicans on the House Judiciary Committee pushed strongly for mandatory minimum prison sentences for years, their ardor for that approach appears to be waning.
F. James Sensenbrenner Jr., chairman of the House Judiciary Committee, agreed to strip many of the mandatory minimum sentences aimed at curbing street gangs and violence against judges from legislation the House is likely to consider this week.
The Wisconsin Republican, who said he deleted the mandatory minimums language in order to get the package of bills through the Senate, is striking a more pragmatic note on the issue after years of confrontation with Senate and House Democrats over sentencing law.
Of course, the real proof will be in the Booker fix pudding. As my "Dead Booker walking?" series is meant to suggest (recently installments here and here), I suspect it is only a matter of time before the Justice Department suggests again that a legislative response to Booker is needed. How Sensenbrenner responds to any calls for a Booker fix will be the true test of whether a new sentencing day has dawned.
Fifth Circuit affirms significant upward criminal history departure
Following up some notable work late last week (details here), a split panel of the Fifth Circuit today in US vs. Zuniga-Peralta, No. 04-50575 (5th Cir. Mar. 6, 2006) (available here), affirms a significant upward departure in an illegal reentry case. The case is an interesting read, especially because Judge DeMoss in dissent asserts that "the case should be remanded to the district court for supplementation of the written order with specific reasons for the decision to upwardly depart." Judge DeMoss closes his dissent with this sentiment: "In the 'brave new world' of sentencing post-Booker, I would hope that sentencing judges would make a habit of giving written and specific factual reasons for any sentence above or below a properly calculated Guideline range."
California Supreme Court's constitutional concern with sex offender registration
With thank to How Appealing for the tip and this link to the opinion, I see that today the California Supreme Court ruled that the state's sex offender registration law has an equal protection problem. Here is the key conclusion of the opinion in People v. Hofsheier, No. S124636 (Cal. Mar 6, 2006):
We therefore conclude that the statutory distinction in section 290 requiring mandatory lifetime registration of all persons who, like defendant here, were convicted of voluntary oral copulation with a minor of the age of 16 or 17, but not of someone convicted of voluntary sexual intercourse with a minor of the same age, violates the equal protection clauses of the federal and state Constitutions. This conclusion does not preclude the Legislature from requiring lifetime registration both for persons convicted of voluntary oral copulation and for those convicted of voluntary sexual intercourse, thus treating both groups the same.
I will leave it to readers to explain to me whether this ruling should be considered a victory for "voluntary oral copulation" or a defeat for traditional "voluntary sexual intercourse."
UPDATE: How Appealing has the newspaper coverage of the Hofsheier ruling linked here.
Eighth Circuit vacates another below-guideline sentence
The Eighth Circuit, with a number of notable rulings today showing up on this official opinion page, continues its busy sentencing ways. Of today's rulings, US vs. Rivera, No. 05-2143 (8th Cir. Mar. 6, 2006) (available here), caught my eye because the Eighth Circuit yet again vacates another below-guideline sentence. As detailed in this post (and in an informative comment), the Eighth Circuit has a history of scrutinizing below-guideline sentences very closely.
Given the Eighth Circuit's history, perhaps what is most notable about Rivera is that the panel does not declare a sentence of 60 months (down from a guideline range of 188-235) to be unreasonable. Rather the Rivera court concludes that "on the record before us, we are unable to make a reasonableness determination and therefore reverse and remand for resentencing." And, based on the record as discussed by the Rivera court, this seems like a sound conclusion.
Notably, as detailed here, AG Alberto Gonzales when calling for a legislative "Booker fix" last summer expressed concerns about defendants "receiving sentences dramatically lower than the guidelines range without any explanation." The Rivera decision, and others like it noted here and here, suggest that appellate review for reasonableness will ensure that district courts fully explain reasons why they believe a below-guideline sentence is appropriate.
Notable late week wins for defendants in the circuits
At the end of a long week, I missed three notable opinions from Friday in which circuit courts found in favor of defendants in their sentencing appeals. The opinions — US vs. Meraz-Enriquez, No. 04-40607 (5th Cir. Mar. 3, 2006) (available here), US vs. Luciano-Rodriguez, No. 04-41016 (5th Cir. Mar. 3, 2006) (available here), and US vs. Bah, No. 05-1863 (8th Cir. Mar. 3, 2006) (available here) — are notable not only because the defendants' prevailed, but also because of what gets said along the way.
The two Fifth Circuit decisions involve yet another set of debates over what constitutes a "crime of violence" within the meaning of section 2L1.2 of the guidelines. Luciano-Rodriguez is the must-read because of a long and thoughtful dissent by Judge Owen. The Eighth Circuit's decision in Bah likewise turns on a conclusion that the district court erred in calculating the applicable guideline range, although Judge Bye concurs to explain why he viewed the above-guideline sentence imposed to be unreasonable.
Fascinating Foster follow-up on Ohio sentencing reforms
I continue to be fascinated by reactions to the Ohio Supreme Court's recent big Blakely decision in Foster. Today the Cincinnati Enquirer, which had the best initial Foster coverage, has this fascinating follow-up article [Update: link fixed] that further examines the impact of Foster and the overall state of sentencing reform in Ohio. Here are some snippets from an article that is today's must-read for serious students of sentencing reform:
Ohio lawmakers set ambitious goals 10 years ago when they rewrote the rules on how criminals are sentenced to prison.... A decade later, many of those reforms are gone or are in jeopardy.... The result is a system that's confusing and unpopular. Judges complain that the system is needlessly complicated, offenders have challenged it in court, and prosecutors say it's soft on crime....
[J]udges praised the [Ohio] Supreme Court's [Foster] ruling last Monday, saying it will lead to tougher sentences. Defense lawyers say it made a bad situation worse. Differences aside, most agree the system remains flawed. "We've got to get back to fixing sentencing reform," state Rep. Bill Seitz, R-Green Township, said. "But it's not something you start on Monday and finish on Tuesday."...
David Diroll helped draft the reforms 10 years ago as executive director of the Ohio Criminal Sentencing Commission. He said the reforms took a hit from the Supreme Court but are still alive. He said judges could consider the guidelines as "advisory," in the same way federal judges now use similar guidelines.... Diroll said such an approach in Ohio would preserve one of the fundamental goals of sentencing reform: consistency. "We just have to see whether the judges stay within the basic norms, the constraints, or whether it's open season," Diroll said.
Legislators say they will likely revisit sentencing reform soon. They're just not sure how many changes they'll make.
Recent posts on Foster:
- Ohio applies Blakely and the Booker remedy!
- What is exactly the Blakely remedy in Ohio?
- Who wins from a Booker remedy? It depends.
- A prosecutor's view on Foster
- A sentencing judge's view on Foster
Of interest in the Monday morning papers
Another work week brings another set of interesting stories to read and follow:
- The Cherry Hill Courier Post has this interesting article discussing the efficacy of sex offender registration and notification laws.
- CBS News provides this helpful Q & A about the capital sentencing trial of Zacarias Moussaoui, which is due to get started today now that jury selection is complete. (For more background, check out pieces from USA Today and the AP.)
- Charles Lane at the Washington Post has this notable piece about the influence of clerks on the Supreme Court.
March 5, 2006
Dead Booker walking?: a "drift toward lesser sentences"
Recently updated statistics from the US Sentencing Commission (details here) inspires me to return to my "Dead Booker walking?" series. As detailed in this post, this series explores arguments which might be made in support of new sentencing legislation in response to Booker. In this installment, I will focus on the concern expressed by AG Alberto Gonzales about "a drift toward lesser sentences" when he called for a legislative "Booker fix" in a speech last summer (basics here, commentary here and here and here).
In my Editor's Observations in the latest FSR issue on the post-Booker world (details here), I noted that "the Sentencing Commission's post-Booker data reveal that average and median sentences in all major categories of crimes are virtually unchanged from pre-Booker levels." Indeed, what is most notable from a review of sentence length data (at pp. 13-15) in the latest post-Booker data report is that, from 2001 to pre-Blakely 2004, there was a significant drift toward higher sentences for all crimes and in all major categories of crime except immigration offenses.
Turning specifically to a comparison of pre-Blakely 2004 and post-Booker sentences, we do now see a one-month drop in the average sentence in all cases (from 56 to 55 months) and similar slight declines in immigration and firearm cases. However, average and median sentence length for these periods are identical in drug cases and there is a slight increase in theft/fraud cases. And, notably, in all categories except immigration, average and median sentences post-Booker are all significantly higher than they were as recently as FY 2002. Put simply, sentencing in the year after Booker has been as tough or tougher than sentencing in the years before Booker.
On this record, I have a hard time identifying a "drift toward lesser sentences," though one might point to the halting of a prior drift toward higher sentences as evidence of Booker's impact. Moreover, the Justice Department might reasonably be concerned that, if the current culture of guideline compliance starts to change, lower sentences may follow. However, given reasonableness review patterns — with all within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, while nearly all below-guideline sentences are being reversed as unreasonable — DOJ has no reason to worry that the culture of guideline compliance will change any time soon.
Prior posts in this series:
Of interest around the blogosphere
A quick tour around the blogosphere reveals more than of few items of interest:
- Grits for Breakfast discusses here a capital case reversal where prosecutors improperly withheld a confession. Capital Defense Weekly has more on the case here.
- Crime & Federalism details here the perils of federal plea bargaining.
- White Collar Crime Prof Blog here compares the sentence of former Representative Randy Cunningham (details here) to those of other notable white-collar federal defendants.
- The WSJ Blog reports here on the distinctive sentencing of Michael Rigas for his relatively small role in the Adelphia frauds.
- 3L Epiphany continues to do fascinating meta-blogging (background here) with new posts on the word "blog" and on the use of "legal blog" or "blawg" and on specialty law blogs.
Sunday's interesting capital stories
Another day of Sunday papers brings another days with lots of capital sentencing stories. Below are some of the articles I found the most interesting:
- From the Shreveport Times here, "Women on death row"
- From the Oregonian here, "Lives extended on Death Row"
- From the Contra Costa Times here,"Respected jurist sits at center of execution delay"
- From the Sunday Times here, "Chinese city will execute purse thieves"
A look at the post-Booker world in Alabama
Today in the Mobile Register you can find two thoughtful articles exploring post-Booker sentencing in Alabama. The basic themes of the articles, available here and here, are clear from their headlines: "Judges hold back on newly won sentencing discretion" and "Mobile cases: Some judges deviated from sentencing guidelines, as Supreme Court now allows." Here are some sections from a very effective article:
[I]n the year since the Supreme Court's U.S. vs. Booker decision, judges in southwest Alabama and nationally have stuck to the old practices more than 90 percent of the time, according to statistics compiled by the U.S. Sentencing Commission.... [T]he federal court in Mobile has continued to operate largely as before [Booker]....
"The guidelines, themselves, are still pretty influential," said Ginny Granade, the chief judge of the federal court in Mobile. "You really, under current case law, need to have a pretty good reason not to follow the guidelines." For defense lawyers, that has proved frustrating. "The guidelines are very severe and harsh. They enjoy sending poor people to jail," said Robert "Cowboy Bob" Clark, a well-known Mobile lawyer. "Why do we have judges?"...
Some legal analysts have said that judges are hewing close to the recommended sentences because of uncertainty. Appellate courts have yet to define what constitutes a "reasonable" departure from the advisory guidelines. In the absence of clear direction, Clark said, judges find comfort in the guidelines. Following them reduces the chances that their decisions will be overturned, he said.
But in a sentiment echoed by many, Clark said he believes judges will feel more free to ignore the guidelines as time wears on. "The longer we get away from (the Booker decision), the guidelines are going to be dead," he said. Even judges, themselves, said they think that might happen in time. "I think the further we go, the guidelines will seem to be advisory," said [District Judge William] Steele.... But Steele added that the guidelines remain a useful tool for judges. "I don't think we'll ever get away from the guidelines. And I do think they are important, because they do have this structure."...
Judges' willingness to set aside the guidelines in at least some cases has prompted some lawyers to shift strategy. Under the guideline system, lawyers rarely put on character witnesses during sentencing hearings because judges largely could not consider such testimony. Dennis Knizley said he put on several such witnesses for a pair of child pornography defendants in the past year. "In the past, I would have never done this," he said. Federal Defender Carlos Williams predicted that as lawyers become more adept at setting their clients apart from other defendants, judges will use sentencing discretion more often. "The defense has to be become better at explaining why," said Williams, who represents defendants who cannot afford lawyers.