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March 18, 2006

Weekend sentencing reading from SSRN

Recently posted on SSRN are these articles which should be of interest to folks interested in sentencing issues:

March 18, 2006 in Recommended reading | Permalink | Comments (0) | TrackBack

March 17, 2006

Where's the USSC's Booker report!?!?

Waldo There is a lot of new stuff at the US Sentencing Commission's website, including testimony from this week's USSC hearing (discussed here) and also news of the National Annual Seminar on the Federal Sentencing Guidelines taking place in Miami from May 31 to June 2, 2006 (brochure here, registration here).  But, as of this writing, there is also a notable omission from the USSC website:

The USSC's 277-page Booker report released earlier this week (discussed here and here) is missing!!

I cannot, as of this writing, find the report anywhere on the USSC's website, and this prior link to the report is now dead.  Perhaps the USSC decided to play its own version of Where's Waldo?, although I think something a bit fishier might be going on.  I am not one inclined to imagine conspiracies, but I certainly will be taking a second look at the Booker report's contents whenever it reappears.

UPDATEI have heard from someone in the know that the USSC, in preparing the Booker report for its final printing, took the report off the web to do one last check for any typographical, technical, or computational errors.  This was my benign guess about what was going on, and I expect we will see the report back up on the web soon.

Also, thanks to everyone who has already sent me a saved copy of the report.  I am truly grateful to have so many kind and thoughtful readers.

March 17, 2006 in Who Sentences? | Permalink | Comments (1) | TrackBack

More reports from House Booker hearings

Though yesterday's House Booker hearing (basics here and here) has received relatively little attention, I can provide some additional views of the event.  For starters, the Sentencing Project has a brief recap of the hearing at this link.  In addition, an article about the hearing ran yesterday in CQ Today entitled "Justice Official Urges 'Minimum Guidelines System' to Limit Sentencing by Judges."  Here are snippets from that article:

Members of Congress adopted a wait-and-see posture after the Booker decision.  But House Republicans, citing a new report by the U.S. Sentencing Commission released this week, are now calling for a legislative response to curb judges' discretion.

Howard Coble, R-N.C., chairman of the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security, which held Thursday's hearing, said he would think through the testimony before endorsing any legislative approach. Judiciary Chairman F. James Sensenbrenner Jr., R-Wis., did not attend the hearing but said a day earlier that he and the attorney general "are going to be on the same page on this."...

Panel Republicans, Democrats and their witnesses drew sharply different conclusions about the Sentencing Commission's latest report on post-Booker sentencing practices and whether it justified congressional intervention.

In addition, soon after the hearing yesterday, Nkechi Taifa, a Senior Policy Analyst of the Open Society Institute circulated an e-mail with her "quick notes" on the event.  Nkechi was kind enough to permit me to post her notes on the blog, and then can now be downloaded below.

Download taifa_quick_notes_on_booker_hearing.rtf

March 17, 2006 in Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (0) | TrackBack

Rough day for defendants in the circuits

Its been a relatively quiet week for sentencing rulings from the circuit courts (and I have not had the energy to report a number of smaller rulings).  But today brings a number of decisions from a number of circuits that seem worth noting.  The theme is that defendants' efforts to upset their sentences are rejected in all the rulings below:

From the Second Circuit: US v. Hicks, No. 04-3299 (2d Cir. Mar. 17, 2006) (available here) (affirming life sentence over various constitutional objections).

From the Seventh Circuit: US v. Owens, No. 05-2397 (7th Cir. Mar. 17, 2006) (available here) (discussing district court's refusal to depart/vary for various reasons).

From the Eighth Circuit: US v. Vasquez-Cardona, No. 05-3059 (8th Cir. Mar. 17, 2006) (available here) (discussing district court's refusal to depart/vary for fast-track disparity and other reasons).

From the Eleventh Circuit: US v. Brehm, No. 05-13426 (11th Cir. Mar. 17, 2006) (available here) (discussing application of the statutory safety valve after Booker).

UPDATE:  A reader's comment points me to a couple of habeas cases in which the Ninth Circuit broke ranks from this trend; perhaps the weekend will permit me time to discuss rulings that can be found here and here.

March 17, 2006 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

Interesting testimony at USSC hearing

Though overshadowed by the House Booker hearing on Thursday (basics here and here), the US Sentencing conducted a full-day public hearing on Wednesday, and now nearly all the written testimony from that hearing can be accessed at the USSC website at this link.  Most witnesses at this hearing focused on particular guideline amendments that the USSC has proposed during this amendment cycle.

Notably, Kathleen M. Williams, the Federal Public Defender from the Southern District of Florida, focused her written testimony on the post-Booker forest rather than on the guideline trees.  Here is a notable portion of that testimony (which is available here):

The federal prison population has skyrocketed, rising from 24,000 in 1980 to over 188,000 today, at a cost of over $4 billion per year.  The Federal Bureau of Prisons is now 40% over capacity, has eliminated or restricted many treatment and rehabilitation programs in recent years, and increasingly fails to provide adequate medical care.  Approximately 65% of these defendants — these father, mothers, husbands, wives, sons, and daughters — whom we have incarcerated are Black or Hispanic.

In the wake of Booker, the Commission must re-examine its role and responsibility in this unprecedented social and juridical tragedy.  For eighteen years, and through 680 amendments, the Commission has approved a steady increase in Guidelines sentences.  It has added and increased the impact of aggravating factors year after year, but only rarely added mitigating factors.  Worse, many mitigating factors that were present in early versions of the Guidelines have been removed.  Although Congress mandated some of these changes, most were initiated by the Commission itself.  For example, independent of mandatory minimum laws, by 2002, the Guidelines accounted for 25% of the more than doubling of drug trafficking sentences, the tripling of immigration offense sentences, and a doubling of sentences for firearm possession and trafficking.

March 17, 2006 in Who Sentences? | Permalink | Comments (0) | TrackBack

The power of legal blogs

The Daily Court Review today has this story, entitled "Hobby Turns Into Project To Track Lawyers' Blogs And Their Impact," which discusses the taxonomy of legal blogs being developed by OSU's own Ian Best at 3L Epiphany.  Here is a snippet:

Best says the best feature of the multitude of legal blogs is how research is presented.  Legal journals, he said, tend to be more static while the legal blogs are more interactive, making it easier to learn from.  He discovered, for instance, that not only attorneys and judges were reading [Douglas Berman's] blog about sentencing guidelines.  "Criminal defendants and victims were reading his blog," Best said. "They're not going to pick up a law journal. But they can read this and learn how this applies to their situation. This moves away from the ivory tower."...

Though the notoriety blogging has received is recent, Best said what it could achieve for the legal profession and mass communication is a broader audience and a more educated public. "It's all online and it's a superior way of doing it," he said.  "That'll be an outreach to the public.  Legal blogs have a real potential that can be transformed."

March 17, 2006 in On blogging | Permalink | Comments (3) | TrackBack

Lots of interesting sentencing stories

Yesterday's House Booker hearing (basics here and here) seems to have received remarkably little press coverage.  But there are some other interesting sentencing stories in the newspapers this morning:

Death penalty stories:

Sex offender sentencing stories:

March 17, 2006 in Death Penalty Reforms, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Foster's impact on plea bargains and appeals

The Athens News has this terrific article discussing the Ohio Supreme Court's Foster decision, which found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy.  The article does a particularly good job examining Foster's likely impact on plea bargaining and appellate review.

Some recent posts on Foster:

March 17, 2006 in Blakely in the States | Permalink | Comments (5) | TrackBack

March 16, 2006

Rhode Island considering reducing drug sentences

As detailed in this AP story, "Rhode Island legislators are considering a bill that would eliminate minimum sentences for some drug crimes and give judges more leeway to direct first-time offenders to treatment programs."  Here are some more details:

Current state law requires judges to sentence offenders to at least 10 years in prison for possession or sale of one ounce or more of heroin or cocaine.  People convicted with more than a kilogram of the drugs receive a minimum of 20 years in prison.

A Senate bill would eliminate the mandatory minimums and give judges more discretion.  The maximum sentence would be 30 years, instead of the current life behind bars.

Sen. Harold Metts, D-Providence, said he introduced the bill in part to help first-time offenders who may benefit from drug treatment and rehabilitation programs.  "Some people learn from their mistakes," said Metts, a Baptist deacon who volunteers at Rhode Island's state prison.  "But if you're going to be locked up for 20 years, you're probably going to come out a worse person than when you went in."

Members of Congress, are you listening?

March 16, 2006 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Judge Presnell on crack/powder disparity

District Judge Gregory Presnell, who long ago secured a place in my Sentencing Hall of Fame, today provides his take on the crack/powder debate and other Booker factors in US v. Hamilton, No. 6:05-cr-157-Orl-31JGG (M.D. Fla. Mar. 16, 2006) (available for download below).  Here is a snippet:

This arbitrary and discriminatory disparity between powder and crack cocaine implicates the Section 3553(a)(2)(A) factors.  Unless one assumes the penalties for powder cocaine are vastly too low, then the far-higher penalties for crack are at odds with the seriousness of the offense. The absence of a logical rationale for such a disparity and its disproportionate impact on one historically disfavored race promotes disrespect for the law and suggests that the resulting sentences are unjust.  Accordingly, these statutory factors weigh heavily against the imposition of a Guidelines sentence.

Download presnell_hamilton_opinion.pdf

Other notable sentencing opinions from Judge Presnell:

Other notable sentencing opinions on crack sentencing:

March 16, 2006 in Booker in district courts | Permalink | Comments (1) | TrackBack

Following the standard script at House hearing

TI have just returned from speaking at the Ohio Northern University Pettit College of Law (where I was wonderfully hosted), and I see that today's House Booker hearing is now web archived at this link along with the written testimony of all four witnesses.  I surmise from the written testimony that each witness largely played the expected roles: DOJ representative Bill Mercer pushed for topless guidelines as a Booker fix, while everyone else highlighted that there was no need for an immediate legislative response to Booker.

I hope to comment more about the House hearing after having a chance to watch the full webcast late tonight.  (First, keeping my priorities straight, I have to watch some basketball and check my brackets.)  But one line in Mercer's written testimony really caught my eye.  In calling for a Booker fix, Mercer says DOJ believes "the simplest, most efficient, and most effective way of reinstituting mandatory sentencing is through a minimum guidelines system."

In at least one sense, this is blatant falsehood: the simplest way to reinstitute mandatory sentencing would be for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens explained, that remedy would not require any changes to the Sentencing Reform Act; Congress could simply express its intent for the guidelines to be mandatory even though aggravating facts triggering longer sentences would have to be proven to a jury or admitted by the defendant.  This solution would clearly be constitutional and reinstitute mandatory sentencing, but DOJ does not seek a legislative solution that — gasp! — might actually give defendants the procedural rights that Blakely and Booker were supposedly about.

March 16, 2006 in Booker and Fanfan Commentary, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (5) | TrackBack

A viewer's guide to Booker House hearing

The Oversight Hearing on post-Booker developments to be conducted Thursday morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will be webcast live starting at 10:30am and can be accessed from this link. I have the honor of speaking today at the Ohio Northern University Petit College of Law (details here), so I will miss all the fun.  Nevertheless, I think I can predict much of what one should expect to see at the House hearing.

As detailed before here and here, the scheduled witnesses are USSC Chair Judge Ricardo Hinojosa, Judge Paul Cassell, attorney James Felman and Principle Associate Deputy AG William Mercer.  I have heard a lot of buzz suggesting that the Department of Justice 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 last summer (basics here, commentary here and here and here).  Meanwhile, as is already clear from their written testimony (available here), Judge Paul Cassell and attorney James Felman will explain why they do not believe any major Booker fix legislation is needed and also why a topless guidelines system would be a very bad idea.  Judge Cassell's testimony call topless guidelines a "scheme [that] looks like a gimmick."

The big question for the hearing is whether USSC Chair Hinojosa will make any specific legislative recommendations or will just set forth data and express the Commission's eagerness to work with Congress.  The USSC's impressive (and massive) Booker report released this week (discussed here and here) has a lot of intricate data analysis, but relatively few broad assessments of the post-Booker world.  I am hopeful, but not confident, that Judge Hinojosa will tell the House Subcommittee that major Booker fix legislation is not needed and could undermine the broader goals of sentencing reform.

Based on the recent comments from members of Congress (background here and here and here), we should expect a lot of focus on sentencing in sex offense cases post-Booker.  Of course, folks in the know realize that very few sex offenses are sentenced in federal court, as these cases occupy less than .5% of the federal criminal docket.  In addition, the USSC statistics show that sex offense sentences have gone up after Booker, even though there have been more below-guideline sentences.

As I have detailed before, lots of general background on the brewing Booker fix debate can be found in recent issues of the Federal Sentencing Reporter and also through my "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.

March 16, 2006 | Permalink | Comments (1) | TrackBack

Whew, what a Wednesday

I predicted Booker March Madness would kick in this week, and Wednesday surely lived up to this billing.  Here are the day's highlights:

Booker hearing developments:

Other notable developments:

March 16, 2006 in Recap posts | Permalink | Comments (0) | TrackBack

Lots of interesting sentencing headlines

Though I have found relatively little press coverage of the Booker brouhaha, there are many other interesting sentencing stories in the papers today.  Of course, developments in the federal death penalty case against Zacarias Moussaoui is getting lots of attention, and How Appealing has media links here and also notes this FindLaw essay by Edward Lazarus entitled "The Moussaoui Trial: It's High Time The Death Penalty Is Taken Off the Table."  In addition, sentencing fans may be interested in some of these other stories from around the country:

March 16, 2006 | Permalink | Comments (0) | TrackBack

Editorial on USSC Booker report and reaction

The Massachusetts newspaper The Republican this morning has this notable editorial entitled "Study on sentencing ought to quell critics," which discusses US Sentencing Commission's Booker report (details here and here) and congressional reaction.  Here is a taste:

A 277-page report released by the U.S. Sentencing Commission, the body that sets the guidelines for judges, ought to have calmed critics of the Supreme Court's ruling. But it hasn't. The chairman of the House Judiciary Committee, Rep. James Sensenbrenner, R-Wis., not only didn't find any solace in the study, he saw in the report reason to try to write new laws that would keep the judges from judging.

The problem with a book of rules delineating criminal sentences ought to be obvious. A crime that might appear on the surface to be like another crime — at least according to what is stipulated in the sentencing rulebook — could well, in fact, be quite different. That's where a judge comes in — to look at the facts of the case at hand.

But for Sensenbrenner — and others of a similar bent — that's not good enough. Congress is good at many things, but deciding that lawmakers know better than federal judges — no matter the case — is not one of them.

Federal judges have a set of sentencing guidelines that they follow in the great majority of cases. But they also have the knowledge and wisdom and experience to pursue a different course when the situation so warrants.  The Supreme Court's ruling 14 months ago sought to ensure that judges retain that power.  Lawmakers would do well to let that decision stand as it is.

March 16, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

March 15, 2006

Updates on Booker hearings

Tomorrow at 10:30 am is the big oversight hearing in the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security entitled "United States v. Booker: One Year Later -- Chaos or Status Quo?". Subcommittee Chair Rep. Howard Coble (R-N.C.) has issued this news advisory which confirms the witness list I detailed in this post and reveals that testifying on behalf of DOJ will be William Mercer.

Today, the comments by House Judiciary Committee Chair James Sensenbrenner's (detailed here and here) overshadowed the hearing held by the US Sentencing Commission.  The USSC just posted this agenda/witness list from the hearing, and I would be eager to hear a report from anyone in attendance. 

Back to the House heing, the US Courts has this press release about Judge Paul Cassell's planned testimony on behalf of the Criminal Law Committee of the Judicial Conference of the United States.  As the press release details:

Congress is being told there is "no need for ... 'Booker fix' legislation" because federal judges' practices in sending convicted criminals to prison remain much the same as they were before the Supreme Court's 2005 decision that invalidated mandatory sentencing guidelines.

Judge Cassell's full prepared written testimony (all glorious 80 pages) which fills out this point — and many other astute points — can be accessed at this link.  And when you've consumed Judge Cassell's amazing effort, you can then also read the prepared written testimony of attorney James Felman, who kindly sent his text for me to post here: Download felman_testimony.pdf

March 15, 2006 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (0) | TrackBack

Ohio AG response to reconsideration motion in Foster

State Blakely fans may recall that, after the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here), the Foster defendants and a supporting amicus filed for reconsideration in the Ohio Supreme Court claiming that the retroactive application of the remedy was unconstitutional.  (All the details are here.)  Today, the Ohio Attorney General filed a potent amicus brief with the Ohio Supreme Court explaining why it believes the motion for reconsideration is all washed up.  You can download this brief here:

Download foster_memorandum_amicus_curiae_opposing_motion_for_reconsideration.pdf

Recent posts on Foster:

March 15, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Capital sentencing news and notes

Though Booker action has most of my attention, there is a lot of remarkable capital sentencing news worthy of a quick review:

March 15, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Quotes from Sensenbrenner press conference

The latest version of this AP piece on the USSC's Booker report and congressional reaction now has these additional notable passages:

Sensenbrenner said at a news conference Wednesday that House Republicans are contemplating several pieces of legislation to rein in what he said were lenient judges, although it will be months before a proposal is drafted and introduced. 

Rep. Howard Coble, R-N.C., chairman of a House subcommittee on crime, said that last year Chief Justice William Rehnquist advised him to hold up on any congressional action until enough time had passed to gauge the effect of the ruling. Rehnquist died last September. "He suggested that we keep our powder dry, be calm and deliberate, which we've done," Coble said. "We are not guilty of knee-jerk reactions."

UPDATE: The Wall Street Journal's Washington Wire blog has this blurb about this brouhaha, which includes this discussion of the press conference:

[S]ome Republicans on the House Judiciary Committee held a press conference Wednesday to reiterate their concern that sentences are more lenient than Congress intended, especially for sex crimes against children. Florida Republican Tom Feeney said he found it "deplorable that some judges are working to undermine tough legislation that is designed to protect our children."

March 15, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Let's get ready to Booker rumble...

To follow up his fiery statement (discussed here) about the US Sentencing Commission's impressive (and massive) Booker report (details here and here), House Judiciary Committee Chair James Sensenbrenner has a press conference scheduled for 1:30pm today in Washington DC.  Details are in this news advisory issued yesterday, which includes this explanation:

[T]he United States Sentencing Commission released its Report on the Impact of United States v. Booker on Federal Sentencing. In 2003, Congress passed the PROTECT Act to address many of the sentencing problems [this] report shows have resurfaced since the Supreme Court threw out the Federal Sentencing Guidelines.  Given the problems found in the Sentencing Commission's report and Congress' interest in ensuring that federal judges are not giving lenient, below-guideline range sentences to pedophiles, child sex offenders, and child pornographers, legislation is likely and will be discussed at Wednesday's press conference.

I suspect every federal judge will be quite surprised to learn that in Booker "the Supreme Court threw out the Federal Sentencing Guidelines."  But no one should be surprise to see Sensenbrenner wasting no time in heating up "tough on crime" rhetoric.

Recent posts on USSC report and Thursday's House hearing:

Recent posts on Booker fix issues:

UPDATE: Gina Holland from the AP has this piece on the USSC's Booker report and Sensenbrenner's reaction.  The report includes this ominous line: "House Judiciary Committee Chairman James Sensenbrenner, R-Wis., said that his committee would begin drafting a new system for sentencing people convicted in federal courts."

March 15, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack