March 20, 2006
Arizona Supreme Court addresses "admissions" for Apprendi/Blakely purposes
Proving yet again that state courts often give more attention and respect to Blakely issues than their federal counterparts, the Arizona Supreme Court late last week issued a thoughtful and thorough opinion on Blakely "admissions" in State v. Brown/McMullen, No. CV-05-0263-PR (Ariz. Mar. 16, 2006) (available here). Though arising through a procedurally complicated setting, the issue and the court's unanimous ruling are clear:
The issue in this case is whether a defendant's statements during a plea colloquy relieve the State of its obligation under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny to prove aggravating factors to a jury. We conclude that the Sixth Amendment requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," id. at 490, unless a defendant has knowingly, voluntarily, and intelligently waived his right to jury trial with respect to aggravating factors....
In short, we hold that the Sixth Amendment right to jury trial with respect to an aggravating factor necessary to impose a sentence remains inviolate unless the defendant's plea of guilty necessarily establishes the aggravating factor (because the facts admitted are elements of an offense to which the defendant has pled guilty) or the defendant has appropriately waived his right to jury trial with respect to these aggravating factors.
Criminal law around the blogosphere
It is an interesting day around the blogosphere for criminal law fans:
- As previewed here and here at SCOTUSblog, the Supreme Court today heard argument in two follow-up Crawford cases. After attending the oral arguments, Orin Kerr at his new blog here guesses "that the government scores a relatively narrow win in Davis (the 911 case) but that the defense wins in Hammon (the personal visit case)."
- How Appealing here has the basics on the Second Circuit's reversal today of the conviction of banker Frank Quattrone. White Collar Crime Prof Blog here has the highlights.
- TalkLeft here has the latest on the Moussaoi trial.
International law and criminal justice
I just received an e-mail from folks at the Sentencing Project directing me to this interesting testimony concerning the intersection of internation law and American criminal justice. Here's the text of the e-mail:
On March 17, Ryan King, Policy Analyst of The Sentencing Project, delivered testimony before members of the United Nations' Human Rights Committee regarding the United States' failure to abide by key sections of international treaty law as they pertain to domestic criminal justice policies. On behalf of The Sentencing Project and allied organizations, the testimony charges that the U.S. has failed to comply with numerous provisions of the International Covenant on Civil and Political Rights. These areas include access to counsel for indigent defendants, equal protection in sentencing, and oversight of standards in detention facilities. The testimony was prepared as a response to the U.S. government's submission to the Committee, and will serve as the basis for a more comprehensive report to be submitted to the Committee at its formal meeting in July.
Recent related posts:
Eighth Circuit affirms another lengthy sentence for an uncharged murder
In his opinion for the Court in Blakely, Justice Scalia assails the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge." The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it...."
If this possibility truly concerns Justice Scalia and other members of the Blakely majority, the Supreme Court ought to be interested in a cert. petition coming from today's unpublished decision by the Eighth Circuit in US v. Rashaw, No. 05-1839 (8th Cir. Mar. 20, 2006) (available here). As detailed in the first paragraph, the Rashaw case fits Justice Scalia's description:
A jury convicted Geoffrey L. Rashaw on two counts of being a felon in possession of a firearm and one count of possessing an unregistered firearm. At Rashaw's post-Booker sentencing, the government presented evidence that Rashaw possessed firearms in connection with a double homicide. Based on the evidence, the district court set Rashaw's base offense level at 43 ... [which under the] sentencing guidelines set the sentence at life imprisonment. Because statutory provisions limited the sentence on each count to ten years, however, the court sentenced Rashaw to three consecutive 120-month terms of imprisonment under U.S.S.G. § 5G1.2(d).
As the Eighth Circuit explains, "Rashaw appeals arguing the 360-month sentence is unreasonable because the district court expressly based the sentence on a finding that he had committed an unrelated, uncharged double murder." In addition, Rashaw "argues that under United States v. Booker, 543 U.S. 220 (2005), the double murder had to be found by a jury beyond a reasonable doubt, rather than by a judge on a preponderance of the evidence." The Eighth Circuit is unconvinced:
Because the district court applied the guidelines in an advisory manner, the court could find sentence-enhancing facts by a preponderance of the evidence.... The double murder was relevant conduct that was properly considered in deciding Rashaw's guidelines range and the factors in 18 U.S.C. § 3553(a).
So, as Justice Scalia feared, Rashaw is convicted at trial of illegal possession of firearms, and gets 30 years for uncharged murders. But this case does not exactly fit Justice Scalia's description: the Eighth Circuit notes that "Rashaw points out the guns he possessed with respect to his sentence were not involved in the double homicide." No problem, says the Eighth Circuit: "The § 2K2.1 enhancement for using a firearm in another felony need not be the same firearm involved in the offense of conviction." Wow!
If Blakely's procedural rights are ever going to have any bite in an "advisory" federal sentencing system, this Rashaw case would seem to be a good vehicle for testing the courage of the Blakely five's convictions. And I continue to wonder what Justice Alito and Chief Justice Roberts, if they share aspects of Justice Scalia's judicial philosophy, might think about cases of this sort.
Related posts on uncharged murder sentencing:
- Sentenced for an uncharged murder
- Sentenced for three uncharged murders
- Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes
- Eleventh Circuit approves sentences based on hearsay evidence of uncharged murders
March 20, 2006 in Blakely Commentary and News, Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack
Major conference on prisoner reentry
Thanks to an e-mail, I received news about a national conference on prisoner reentry taking place next week co-hosted by the Criminal Justice Institute and the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. The conference is entitled "ReThinking Re-Entry: Confronting Perpetual Punishment" and takes place on March 31 — April 1, 2006. Basic information and a link to the full brochure can be accessed here. Here are more details from the e-mail I received:
Among the topics which panelists will discuss and explore in depth are addiction, community impact, disenfranchisement, economics and education, employment, housing, mental health, public policy, and women/families. This conference will bring together a broad cross-section of stakeholders — academics, corrections officials, community based organizations, formerly incarcerated people and their families, youth, service providers, government officials and representatives of the media.
Posts on other notable recent sentencing events:
- Conference on wrongful convictions and the death penalty
- Two up-coming (and one past) great sentencing events
March 19, 2006
Reviewing a week dominated by Booker talk
As detailed below, when not focused on my NCAA bracket, my time this week was mostly occupied with all the Booker action taking place inside the Beltway.
BOOKER REPORT AND OTHER USSC DEVELOPMENTS AND COMMENTARY
- Sentencing Commission releases Booker report!
- Initial reflections on the USSC Booker report
- Editorial on USSC Booker report and reaction
- Interesting testimony at USSC hearing
- Where's the USSC's Booker report!?!?
BOOKER HOUSE HEARING DEVELOPMENTS AND COMMENTARY
- A viewer's guide to Booker House hearing
- Following the standard script at House hearing
- More reports from House Booker hearings
- Sensenbrenner takes the gloves off ... will the judiciary fight back?
- Quotes from Sensenbrenner press conference
- Updates on Booker hearings
- Let's get ready to Booker rumble...
STATE SENTENCING DEVELOPMENTS AND COMMENTARY
- California's sentencing and corrections woes
- Rhode Island considering reducing drug sentences
- Ohio AG response to reconsideration motion in Foster
- Foster's impact on plea bargains and appeals
OTHER NOTABLE SENTENCING DEVELOPMENTS AND COMMENTARY
- The federal litigation shock of Blakely and Booker
- Judge Presnell on crack/powder disparity
- Constitution Project releases report on sentencing reforms
- Why did Justice Alito withdraw from Sentencing Initiative?
Bringing back banishment as a sentencing option?
With thanks to Alablawg for the tip, readers interested in immigration and sentencing will want to check out this story from Alabama reporting that "illegal Hispanic immigrants booked on minor offenses in Hoover last year were often put in jail without bond and ordered to leave the country by Jefferson County District Judge Robert Cahill." Here are some more details:
[In] 11 cases where a Hispanic defendant pleaded guilty in his courtroom, [Cahill] banished the defendants from Alabama.... Cahill, for example, ordered Leopoldo Chipahua-Gomez, who was 19 and said he worked at the Bottega Italian restaurant, "to leave Alabama and not return," a Jefferson County court file shows. He ordered J. Carmen Pacheco-Villa, who was 38 and said he worked at the Birmingham Country Club, to "leave Alabama and USA." And he ordered Gustavo Flores, 32, no occupation listed, to "leave Alabama and go to Mexico."
Cahill said for years he has ordered defendants, not just Hispanics, to leave a city or leave the state. He said neither lawyers nor defendants have questioned such orders. "If I can't, somebody could appeal it," Cahill said. "If I can't do it, then someone should tell me I'm wrong."
Legal experts say state judges ordering defendants to leave the country is out of the ordinary.... "I've never heard of this before," said Dan Kesselbrenner, of the National Immigration Project. "Most judges realize it's not their role. Immigration judges decide who can stay and who can go." Kesselbrenner said state law doesn't allow banishment orders, and numerous appeals cases have upheld that position.
Sunday's capital punishment headlines
Another Sunday brings another set of notable death penalty items in the morning newspapers around the country:
- From Florida here, "For monsters, it's necessary" and here "Attorney speaks out against death penalty"
- From South Dakota here, "S.D. prepares for execution" and here, "Anti-execution group has a new urgency" and here, "Lethal injection under review in other states"
- From Texas here, "Politics swirls in death probe"
- From Wisconsin here, "Why reject 150 years without executions"
Examining the post-Booker landscape in Iowa
The Des Moines Register has this interesting article, entitled "Data show more variety in sentencing," which discusses the look of the post-Booker world of federal sentencing in Iowa. Here are some highlights:
In the first 13 months since federal judges were handed more freedom in sentencing, punishment disparities have developed among courthouses nationwide, new data show. Federal prosecutors and judges in Iowa downplay the meaning of the statistics, but defense attorneys say the numbers reinforce what they have always believed: Varying judicial temperaments, combined with harsher prosecution in Iowa's northern half, can create widely different sentences for similar crimes....
Since [Booker], judges in Iowa's Northern District have continued to issue guideline-approved sentences in nearly 69 percent of cases. But in the Southern District, which includes Des Moines, the percentage fell to 49 percent.... Between Jan. 12, 2005, and Feb. 1, 2006, northern prosecutors sought lower sentences in only 14 percent of their cases, compared with 21 percent in the Southern District....
[AUSA Rich] Murphy and Southern District U.S. Attorney Matt Whitaker questioned the value of the statistics, which are based on sometimes-incomplete case information reported to the sentencing commission. Prosecutors estimated that the numbers reflect only 60 percent to 85 percent of the work that took place. "There are so many moving variables here," Whitaker said. "I don't think you can draw any analysis of what this says."