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March 15, 2006

Eighth Circuit en banc on DWI as violent felonies

In a lengthy en banc opinion, the Eighth Circuit today in US v. McCall, No. 04-1143 (8th Cir. Mar. 16, 2006) (available here), addresses whether and when DWI can qualify as "violent felony" for purposes of § 924(e)(2)(B)(ii).  Here is the description of the McCall ruling from the Eighth Circuit's official opinion page:

A Missouri felony driving while intoxicated conviction is a conviction for a violent felony for the "otherwise involves" provision of 18 U.S.C. Sec. 924(e)(2)(B)(ii); however, because the Missouri felony driving while intoxicated offense includes non-driving conduct as well, the case must be remanded for further sentencing proceedings at which the government may seek to prove that defendant's prior convictions were driving offenses, using the limited universe of evidence permitted in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 125 S. Ct 1254 (2005). Judge Lay, dissenting, joined by Judge Wollman and Judge Bye.

March 15, 2006 in Offense Characteristics | Permalink | Comments (1) | TrackBack

Why did Justice Alito withdraw from Sentencing Initiative?

As detailed here, the Constitution Project's Sentencing Initiative has released a important report elaborating on its principles for criminal sentencing reform.  At the outset of the report, there is an interesting procedural footnote that follows up on an issue I raised last fall relating to Justice Alito's involvement in the Sentencing Initiative's Committee work:

Justice Alito participated actively in the deliberations that produced and approved the Committee's Principles.  However, his nomination to the Supreme Court in Fall 2005 precluded his participation in drafting and approving this Report.  His confirmation to the Court has now compelled him to withdraw from the Committee.

Though surely prudential (and workload) reasons might have prompted Justice Alito to withdraw, I don't see why he should have felt "compelled" to do so.  As I said in this post following his nomination: "I hope Judge Alito continues to serve on the Constitution Project's Sentencing Initiative.  His service to date suggests there is no ethical conflict with a sitting judge participating in a policy discussion of sentencing issues even when related legal issues could arise in his court.  Consequently, I see no ethical reason why Judge Alito should not continue to play a role in the very important work being done by the Constitution Project's Sentencing Initiative."

Related posts:

March 15, 2006 in Who Sentences? | Permalink | Comments (0) | TrackBack

Constitution Project releases report on sentencing reforms

In a timely move as the Booker fix story heats up (background here and here), the Constitution Project's Sentencing Initiative has officially released the background report produced by its blue-ribbon Committee for its "Principles for the Design and Reform of Sentencing Systems."  This report serves as an elaboration of the ideas and principles for reform of criminal sentencing systems set forth by the Constitution Project's Sentencing Initiative last summer (and first discussed here and here).

This background report can be downloaded at this link.  Here is a snippet from the report's introduction, which provides more information of the Committee's work:

The Committee has approached its work in two phases. First, the Committee studied the history and present situation of American criminal sentencing, with particular emphasis on federal sentencing, and agreed upon a set of principles for the design and reform of sentencing systems.  This Report enumerates these principles and summarizes the thinking that led to their adoption.  The first ten principles are applicable to both state and federal sentencing systems, while the final two focus on the federal structure built around the Federal Sentencing Guidelines.  In the second, ongoing, phase of its work, the Committee is attempting to craft recommendations aimed at making the federal sentencing system consistent with the principles.  The Committee anticipates issuing a second report detailing these recommendations.

March 15, 2006 in Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Who says crime doesn't pay?

The Eleventh Circuit today addressed an interesting guideline interpretation issue in US v. Paley, No. 05-13422 (11th Cir. Mar. 15, 2006) (available here).  The case considers whether the "the total amount of the laundered funds for which Paley was accountable under USSG § 2S1.1" should include "the appreciation in value of an asset purchased with drug proceeds."  The title of this post perhaps gives away the Eleventh Circuit's answer.  Paley is also interesting because it closes with this sentiment:

We note in closing that this is a good example of a case in which the district court could have avoided the necessity of appellate review and a remand for resentencing on this issue by explicitly stating — if true — that even if the court were wrong on the disputed guidelines issue, it would have imposed the same sentence under the guidelines (since the sentence was within both possible ranges) or by using the 18 U.S.C. § 3553(a) factors.

March 15, 2006 in Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Sensenbrenner takes the gloves off ... will the judiciary fight back?

As I explained in posts here and here, I read the US Sentencing Commission's impressive (and massive) Booker report to suggest major Booker fix legislation is not needed.  But, as evidenced by the fiery statements in this press release from House Judiciary Committee Chair James Sensenbrenner, one can have a different take on the post-Booker world.  Here are snippets from Sensenbrenner's statement:

Last year, I stated that the Judiciary Committee would take no action in response to the Supreme Court's decision, but would evaluate this issue one year later after there was sufficient experience with the "advisory" guideline system.

The data is now in and the picture is not pretty.  The Sentencing Commission's report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act, and jeopardized the basic precept of our federal court system that all defendants should be treated equally under the law.

The PROTECT Act enacted in 2003 ensured that appropriate sentences would be administered to sex offenders, pedophiles, child pornographers, and those who prey on our children.  Thus, I am troubled that the Commission's Report shows that these fundamental sentencing reforms have been effectively eliminated.  That is neither good nor acceptable for justice and public safety.

While the overall average sentence length increased after the Booker decision, such an increase reflects the fact that Congress amended numerous criminal statutes, thereby increasing the applicable sentencing range for crimes such as identity theft, terrorism, cybercrime, and sex offenses.  Even with these increased guideline ranges, the sentencing data shows that Federal judges have not embraced, and in many cases, have undermined, Congress' specific intent in these areas.

In response to the problems described in this report, the Judiciary Committee intends to pursue legislative solutions to restore America's confidence in a fair and equal federal criminal justice system.  I look forward to working with the Sentencing Commission, the Justice Department, and others to bring together a practical and effective solution to this problem.

I am highly discouraged by Sensenbrenner's heated rhetoric and troubled by a number of his claims.  The idea that Booker produces "unrestrained judicial discretion" is inaccurate, as is the suggestion that federal judges are undermining the purposes of the Sentencing Reform Act or Congress' specific intent.  And this statement certainly indicates that Sensenbrenner is eager to pursue Booker fix legislation.

Of course, if Sensenbrenner was truly committed to a "fair and equal federal criminal justice system," he could propose legislation 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 (1) clearly be constitutional, (2) make the guidelines mandatory again, and (3) produce a "practical and effective solution" to the problems Sensenbrenner claims to be concerned about.

March 15, 2006 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (1) | TrackBack

The federal litigation shock of Blakely and Booker

With thanks to How Appealing, I see that the Administrative Office of the U.S. Courts has issued this news release which documents some of the impact of Blakely and Booker on the workload of the federal courts.  Here are some criminal law filing details from the release:

Criminal appeals jumped 28 percent in FY 2005 to 16,060, with growth in cases related to nearly all types of crimes.  The most significant increases were in appeals related to drug offenses (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)....

Original proceedings [in circuit courts] climbed 23 percent to 5,017 as state and federal prisoners filed 3,617 second or successive motions for permission to file habeas corpus petitions (up 42 percent) following the Supreme Court's decisions in Blakely v. Washington and U.S. v. Booker....

The new release also has some interesting data in changes in the case mix of criminal filings in the federal district courts:

Nationwide, criminal filings in the U.S. district courts fell 2 percent to 69,575 in FY 2005, and the number of defendants in these cases dropped 1 percent to 92,226.  Despite the overall decline, increases occurred in cases involving drugs other than marijuana, sex offenses, and immigration offenses.

March 15, 2006 in Blakely Commentary and News, Booker and Fanfan Commentary, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

March 14, 2006

Initial reflections on the USSC Booker report

As noted before, the US Sentencing Commission's impressive (and massive) Booker report (available here) is a bit overwhelming.  Nevertheless, having completed a quick first pass, I want to explain why the report reinforces my view that major Booker fix legislation does not seem necessary.

To begin, we must recall key reasons why the pre-Booker system cannot be the sole metric for judging the post-Booker world.  As I explained in this Legal Affairs debate with Frank Bowman:

[There are] two fundamental reasons why pre-Booker realities cannot nor should not be our gold standard for assessing the current state of federal sentencing: (1) the pre-Booker sentencing system, according to the Supreme Court, violated defendants' Sixth Amendment rights, and (2) the pre-Booker sentencing system, according to nearly all observers, distinguished itself by virtue of its overall complexity, rigidity and harshness.  Consequently, because the pre-Booker sentencing system was both unconstitutional and unsound, evidence of "decreased compliance" with the guidelines perhaps should be a cause for celebration and not concern.

With this important backdrop, three findings from the report especially caught my attention:

Add all this up, and I come to the basic conclusion that federal judges are, generally speaking, using their new post-Booker discretion quite cautiously and wisely.  As the old proverb goes, "If it ain't broke, don't fix it."  I see little evidence in the USSC's report of federal sentencing being broken (or at least being broken in new ways).

Of course, federal sentencing has arguably become a bit more complex and harsh after Booker, even as it has become slightly less rigid.  I would favor reforms that would ease the complexity and harshness of the current system (though these reforms could and should come from the USSC after further study).  Disconcertingly, the "minimum guideline system" that the Justice Department fancies would increase the rigidity and the harshness of federal sentencing — while also, of course, raising new constitutional and practical questions that would also increase complexity.

Some recent Booker fix posts:

March 14, 2006 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (2) | TrackBack

Two decisions of note from the First Circuit

The federal circuits have been relative quiet on the sentencing front this week (perhaps everyone is busy working on brackets).  But a little action comes today from the First Circuit with US v. Cruzado-Laureano, No. 05-1822 (1st Cir. Mar. 14, 2006) (available here) and US v. Narváez-Rosario, No. 05-1355 (1st Cir. Mar. 14, 2006) (available here).

Cruzado-Laureano deals with a guideline calculation iusse in a fraud case, and Appellate Law & Practice has  highlights here; Narváez-Rosario deals with application of the safety-valve in a drug case, and AL&P again provides the basics here.

March 14, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Sentencing Commission releases Booker report!

Now appearing on the US Sentencing Commission's Booker webpage is the Commission's long-awaited — at least by me — Booker report.  Available at this link, the report is simply entitled "Report on the Impact of United States v. Booker on Federal Sentencing," and the full pdf runs 277 pages(!).  I will, of course, comment at length as I consume what the USSC has to say about the post-Booker world.

UPDATE: There is so much of interest in the USSC Booker report; I am a bit overwhelmed.  The Commission is to be complimented for producing such a massive and detailed report in anticipation for this week's hearings on federal sentencing (background here and here).  From a quick scan, I do not see any concrete recommendations from the USSC in this Booker report, though perhaps that will come in a subsequent documents or in USSC Chair Ricardo Hinojosa's testimony at the House Judiciary Committee hearing (details here).  Also based on a quick scan, here is a notable sound-bite: "The severity of sentences imposed has not changed substantially across time. The average sentence length after Booker has increased."  USSC Report at p. vii.

I now have to dash off to this event, but I hope to be able to comment on the report more this afternoon.

ANOTHER UPDATEI sequestered myself in a local coffee shop for a couple hours this afternoon to consume the USSC Booker report.  I have three basic reactions, which I hope to elaborate upon in subsequent posts:

  1. This is a fantastic report that is a must-read (or at least must-skim) for all policy-makers and practitioners interested in federal sentencing developments.
  2. The report has a lot of intricate analysis, but relatively few broad assessments, of the post-Booker world.
  3. Though the Justice Department might find bits of data from the report to make a case for a Booker fix, I see the report as reinforcing my own view that the post-Booker world is not badly broken.

March 14, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Death penalty developments down south

Yesterday brought some notable death penalty news from a number of southern states:

Also, over at Capital Defense Weekly, Karl Keys has a lot of new posts about recent circuit decisions and other notable death penalty developments.

March 14, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

March 13, 2006

California's sentencing and corrections woes

A thoughtful reader pointed me to this strong piece from Sunday's San Francisco Chronicle, entitled "Prison reform needs reform: Corrections system can't do task alone," which discusses the woes of California's sentencing and corrections system. Here's a snippet:

Scholars ... who have studied California's overcrowded, $8 billion corrections system have repeatedly concluded that many of the system's troubles stem from poorly thought out criminal justice policies.

Sentencing laws enacted more than 30 years ago, and repeatedly described as a failure, require nothing of inmates, who sit in cells or on yards instead of entering drug treatment or vocational education programs.  Corrections administrators have little power to determine when an inmate is truly ready to leave prison, and that results in the daily release of dangerous people back into the neighborhoods they previously terrorized.  Overburdened parole agents are required to monitor virtually every parolee, leaving the agents little time to concentrate on the parolees most likely to pose a threat to citizens.  That has resulted in this shocking fact: More than 20,000 California parolees are unaccounted for on any given day....

And many scholars say lawmakers continue to make bad decisions based more on headlines and emotional pleas than on a growing body of data that suggests how states can run cost efficient and effective prisons and parole systems....  Rarely are costs — or studies showing effectiveness — considered. The results make working in the state's penal system difficult and contribute to parolees churning in and out of jam-packed prisons.

March 13, 2006 in State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Notable developments in Moussaoui trial

As detailed in this AP story, this morning U.S. District Judge Leonie Brinkema "unexpectedly recessed the death penalty trial of al Qaeda conspirator Zacarias Moussaoui to consider whether government violations of her rules against coaching witnesses should remove the death penalty as an option."

UPDATE: Great coverage of the developments in the Moussaoui trial can be found over at TalkLeft here, at How Appealing here and here, and at SCOTUSblog here.

March 13, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Blog news and notes

1.  The folks running the Law Prof Blog Network have asked me to ask readers to please take a moment to fill out a short reader survey here.  The goal is to have a better idea about who is reading this blog so the network can better serve readers.  Thanks in advance for your help.  (The survey will remain at the top of the middle column throughout this week.)

2.  As detailed here over at 3L Epiphany — which is still creating buzz with his list of over 600 law blogs — the next two days uber-blogger Howard Bashman is on my turf.  (We will be speaking together tomorrow at this event.)

3.  As explained here, Prof. Orin Kerr has decided to open his own blog shingle at OrinKerr.com.

March 13, 2006 in On blogging | Permalink | Comments (3) | TrackBack

March 12, 2006

Taking stock of recent developments and gearing up

This coming week will be filled with lots of Booker buzz (along with, of course, bracket buzz).  I am especially looking forward to the hearing in the House Judiciary Committee and the Booker report from the Sentencing Commission (basics here).  Those gearing up for all the Booker fix fun will find a lot of links at the end of this post.  But, as detailed below, a lot more than Booker buzz has been going on since my last topical review of sentencing highlights:






March 12, 2006 in Recap posts | Permalink | Comments (0) | TrackBack

Great new federal sentencing blog

I just got word of the Second Circuit Sentencing Blog, which provides "summaries and commentary on substantive sentencing decisions in the Second Circuit."  This blog looks like a fantastic resource for practitioners trying to sort through the post-Booker world, especially because it analyzes and comments on all substantive sentencing decisions in the Second Circuit (including all district court opinions), and has category archives providing an analytic library of all such decisions.

March 12, 2006 | Permalink | Comments (0) | TrackBack

The latest (silly?) front in the lethal injection scrummages

As detailed in this Los Angeles Times article, the latest front in the lethal injection scrummages involved the ACLU asserting that the standard lethal injection protocol violates the First Amendment: "Contending that a drug used during executions prevents inmates from showing their pain by paralyzing them, the American Civil Liberties Union has filed a lawsuit alleging that the procedure violates the 1st Amendment."

Recalling my critiques of recent work by the ABA dealing with the death penalty in Georgia, I react to this lawsuit by wondering whether there aren't bigger First Amendment problems the ACLU could and should be working on these days.  Unsurprisingly, this lawsuit is grist for the mill here over at the Stop the ACLU blog.

Some recent related posts:

March 12, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Is capital punishment for repeat child molesters constitutional?

We will soon discussing in my sentencing class the Supreme Court's 1977 decision in Coker, which declared the death penalty unconstitutional for the crime of adult rape.  That case left open the question of whether child rape might be a death-eligible offense, and this article details that Coker's limits may soon become a very big question in Oklahoma:

Sponsors say a bill to permit repeat child molesters to be executed is neither cruel nor unusual, but experts say it could make matters worse for victims of sex crimes.  The measure by Sen. Jay Paul Gumm, D-Durant, flew though the Senate last week, 40-7. It goes on to the House, where it is sponsored by Rep. John Carey, another Durant Democrat.  "I anticipate it will come out of the House with flying colors," Mr. Carey said....

Legal scholars say that although myriad capital crimes are still on the books in many states, the Supreme Court has effectively limited the nation's ultimate punishment to murder cases.  Mr. Gumm says the Supreme Court has changed so much, "I feel confident this bill would be upheld."

"I consider this to be the most horrible of crimes," he said. "I think it is every bit as bad as murder, if not worse, because the ripples of child of child sexual abuse goes through the victim's life."

Even those who feel as strongly as Mr. Gumm about the seriousness of sexual offenses, however, are not as sure such legislation would pass constitutional muster. "I would be a little bit surprised if the Supreme Court approves of that, but I have been wrong before," said Wes Lane, Oklahoma County district attorney. "Nobody around here has any sympathy for child molesters," added Mr. Lane, saying he would gladly enforce such a law if it were upheld by the Supreme Court.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said that Louisiana passed a similar law several years ago, and that one man has been convicted under it and sent to death row."

UPDATE:  A helpful reader has suggested that folks interested in this topic might want to check out this recent article on SSRN by Corey Rayburn entitled "Better Dead than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes."

March 12, 2006 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (24) | TrackBack

High costs of the death penalty

The Lodi News-Sentinel yesteday ran this effective story, headlined "Price of death penalty has many questioning the punishment," which asserts that "the increasingly high cost of capital punishment in California has many questioning the worth of having the state carry out death sentences."  Among other interesting bits of data in the article is an assertion that "taxpayers have paid some $250 million to unsuccessfully carry out the death sentence handed down to [convicted murder Michael] Morales over two decades ago."

Related posts:

March 12, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Controversial sentencing reforms in UK

As detailed in articles here and here and here, prison overcrowding in the United Kingdom is leading to some controversial sentencing reform proposals across the pond:

Jail sentences for rapists are to be slashed under controversial new guidelines for judges revealed just days before an official campaign against rape is launched by the government.  In a move which critics warned would deter traumatised women from reporting sex crimes, the Sentencing Guidelines Council (SGC) is to recommend that future sentences for rape and other sexual offences be cut by 15 percent for most offenders.

The Observer can reveal that the council, an independent body advising the judiciary on how to interpret the law, will argue that men should serve shorter sentences because the prison regime is now 'more demanding'.

In a separate move, it is also expected to recommend shortly that men convicted of domestic violence could escape jail terms if they convince the courts they are capable of changing.  Instead they would be sent on courses in the community challenging their attitudes to women.

These moves would relieve pressure on Britain's overcrowded prisons.  But MPs and women's groups said they sent the wrong message about the crimes many women fear most, while victims could be dissuaded from the ordeal of testifying if they feared the result would only be a short sentence.

March 12, 2006 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack