April 8, 2006
A great title and a great read
Though about law schools and blogging and not sentencing, I must link to a terrific essay pointed out by Rick Garnett here at PrawfsBlawg. The piece is by Professor Frank Snyder (available here via SSRN) and goes by the great title, "Late Night Thoughts on Blogging While Reading Duncan Kennedy's Legal Education and the Reproduction of Hierarchy in an Arkansas Motel Room." For anyone interested in law school, blogging or Duncan Kennedy, it is a great read.
Will SCOTUS consider Bible-influenced capital sentencing?
As Howard Bashman notes here, yesterday the Fourth Circuit denied rehearing en banc in a case concerning a juror's reliance upon the Bible during capital sentencing deliberations. The circuit's order in Robinson v. Polk and two interesting opinions (a concurrence by Judge Wilkinson, a dissent by Judge King) can be accessed at this link.
Over here at Capital Defense Weekly, Karl Keys adds this interesting comment:
[T]here is a sharp division over how much, if any, Biblical verses and prayer should play in capital cases. Numerous jurisdictions over the years of the Weekly's publication have held that such usage is inappropriate and vacated death sentences in light of its usage (Colorado, Ninth Circuit, Eleventh Circuit, Ohio, & Pennsylvania). Others have overlooked problems finding either no problem or a minimal problem (Fourth Circuit, Mississippi, & Ohio).
Karl suggests that it is "past time time for SCOTUS action" on this issue.
Some related prior posts:
- Notable split capital habeas ruling from the Fourth Circuit (discussing panel decision in Robinson v. Polk)
- Sentencing and Religion
- Sister Prejean powerful perspective
April 7, 2006
Fourth Circuit justifies presumption of reasonableness
The Fourth Circuit today in US v. Johnson, No. 05-4378 (4th Cir. Apr. 7, 2006) (available here), goes to great lengths to explain why, post-Booker, within-guideline sentences ought to be afforded a presumption of reasonableness. An extended general discussion of these topics culminates with this paragraph in Johnson:
As our repair to these admittedly basic points makes clear, the Guidelines are not arbitrary benchmarks, nor is their reasonableness simply a matter of administrative convenience. Booker found a fatal constitutional defect in the mandatory nature of the Guidelines system, 125 S. Ct. at 750-51, but those values that the Guidelines serve — uniformity, transparency in sentencing, and individualized factfinding — are features of a reasoned sentencing approach, and relevant to an advisory system just as they were to a mandatory one.
Though Johnson is a thoughtful opinion, it notably never addresses the reality that the guidelines do not seek to effectuate Congress's commands in section 3553(a) of the Sentencing Reform Act that judges impose sentences "sufficient, but not greater than necessary" to achieve punishment purposes. It also conveniently avoids any discussion of guideline particulars that cast doubt on just how reasonable the guidelines might really be. To give just one of many possible examples, consider this factum: under the guidelines, conspiracy to commit murder is assigned a base offense level of 33, and criminal sexual abuse is assigned an offense level of 30, while distributing around 5 ounces of crack is assigned a base offense level of 34.
Is a system that declares distribution of 5 ounces of crack more serious than conspiracy to commit murder and criminal sexual abuse really the sort of system that should be afforded a presumption of reasonableness?
Seventh Circuit reverses below-guideline sentence based on co-defendant disparity
The Seventh Circuit today in US v. Pisman, No. 05-1625 (7th Cir. Apr. 7, 2006) (available here), reverses a below-guideline sentence that the district court granted with an eye on co-defendant disparity. Here is the key portion of the court's ruling:
[C]omparison of co-defendants ... is not a proper application of the § 3553(a) mandate that a court minimize unwarranted disparities in sentences. First, the lower sentence for Wilkerson was attributable to his decision to plead guilty to the offense and his cooperation with the government, which is a legally appropriate consideration. The corresponding reduction in his sentence as compared to a non-cooperating defendant is not an "unwarranted" disparity. United States v. Boscarino, 437 F.3d 634, 637-38 (7th Cir. 2006). Moreover, the § 3553(a) concern with sentence disparity is not one that focuses on differences among defendants in an individual case, but rather is concerned with unjustified difference across judges or districts. Id. at 638. In fact, the focus on the differences among defendants in an individual case in which one defendant cooperates could actually increase sentence disparity, because the resulting lower sentence for the offense to redress that disparity will be out of sync with sentences in similar cases nationwide in which there were not multiple defendants or in which one did not cooperate. Id. As we noted in Boscarino, it makes no sense that one culprit should receive a lower sentence than an otherwisesimilar offender, "just because the first is 'lucky' enough to have a confederate turn state's evidence." Id. The district court's approach does nothing to eliminate unwarranted disparity in sentences, and therefore is an improper application of the § 3553(a) factor.
Ninth Circuit on caluculating drug quantities
The Ninth Circuit today in US v. Kilby, No. 05-30112 (9th Cir. Apr. 7, 2006) (available here), has a lot to say about the calculation of drug quantities for determining federal sentencing ranges. Among other realities, the Kilby case shows the impact of drug quantity calculations under the guidelines.
Justice Alito jumps into the pool
Tony Mauro reports in this article that "Supreme Court Justice Samuel Alito Jr., like his predecessor Sandra Day O'Connor, has joined the justices' so-called "cert pool" -- leaving John Paul Stevens once again as the only justice not participating in the controversial case-pooling arrangement." As I have suggested in a series of prior posts (assembled below), I fear that the undue SCOTUS emphasis on capital cases could be a by-product of clerk interest and the operation of the cert pool.
Some related prior posts:
- Roberts, the cert pool, and sentencing jurisprudence
- The Chief goes swimming
- Pondering a (cert.) pool with much splashing about
- Cert. pool filling up with Blakely cases
UPDATE: Orin Kerr and his commentors add some additional thoughts on this important (and under-explored) topic here.
April 6, 2006
Lots of fascinating federal circuit action
With the end-of-semester crunch creeping up, I have not been able to keep up with all the circuit sentencing action this week. However, there have been interesting criminal law opinions from most of the circuit courts this week, and today brings these three especially noteworthy rulings:
From the Fourth Circuit, US v. Milam, No. 05-6259 (4th Cir. Apr. 6, 2006) (available here), addresses the important issues of what constitutes an admission for Apprendi/Blakely/Booker purposes. Here's the Milam court's opening paragraph:
In these cases, we hold that facts stated in a presentence report may not, at sentencing, be deemed to be admissions by the defendant sufficient to bypass the Sixth Amendment right to a jury trial as articulated in United States v. Booker, 125 S. Ct. 738 (2005), even though the defendant, who had been given the presentence report before sentencing, did not object to the facts. We therefore conclude that the district court violated the defendant's Sixth Amendment rights in each case when it relied on facts stated in the presentence report to enhance the defendant's sentence beyond the statutory minimum. We vacate the sentences in these two appeals and remand for resentencing.
From the Ninth Circuit, In re: Vasquez-Ramirez,, No. 04-75715 (9th Cir. Apr. 6, 2006) (available here), grants mandamus to rebuff a judge for refusing to accept a guilty plea. Here's is the court's closing explanation:
A district judge retains broad discretion to sentence a defendant to any term of imprisonment within the statutory range set by Congress, for the crime the prosecutor has chosen to pursue. See United States v. Booker, 125 S. Ct. 738, 750 (2005). But the judge oversteps his bounds when he forces the prosecutor to pursue charges the prosecutor would rather not, just because the judge disagrees with the sentencing range to which he would otherwise be limited. Once a prosecutor brings charges against a defendant, Rule 11 requires the judge to accept the defendant's guilty plea to those charges, provided the plea meets the requirements of Rule 11(b). It matters not that the judge feels the prosecutor's charging decision was too aggressive or too lenient.
From the Eleventh Circuit, US v. Williams, No. 04-15128 (11th Cir. Apr. 6, 2006) (available here), declares that the PROTECT Act's provision that prohibits the promotion of child pornography is facially unconstitutional for overbreath and vagueness. Here is how that opinion begins:
Michael Williams appeals his conviction for promotion of child pornography under 18 U.S.C. § 2252A(a)(3)(B) on the grounds of facial unconstitutionality. For this reason, we reverse that conviction. Williams was also convicted of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B), and he appeals his sentence for that offense on the grounds that the court unconstitutionally enhanced his sentence under a mandatory guidelines scheme in violation of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Because there was no reversible Booker error, we affirm Williams's sentence of 60-months' imprisonment.
Missouri Supreme Court to hear acquitted conduct issue
In this post last December, I noted an interesting Missouri Court of Appeals decision. In Missouri v. Clark, the intermediate state court upheld the use of acquitted conduct in a jury sentencing proceeding, relying heavily on the Supreme Court's (now shakey?) Watts decision. A helpful reader altered me that the Missouri Supreme Court has agreed to hear the Clark case next week, and the parties' brief are available at this link.
Here is the conclusion of the appealing defendant's brief:
Bifurcated sentencing was intended by the legislature to be a powerful tool in the hands of prosecutors. However, this provision of Missouri law is still subject to basic standards of fundamental fairness and to the limits imposed by the Missouri and United States Constitutions. These were not "unadjudicated bad acts". These were acts that a jury had already determined were not committed by Calvin Clark and could not have been admitted during the guilt phase of this trial. Allowing their admission through the back door during the penalty phase ensured that Mr. Clark would be sentenced not just for his present actions, or uncharged prior conduct, but for acts that a properly impaneled jury of his peers had already determined he did not commit.
Here are the concluding sentiments of state's brief:
Appellant was sentenced to consecutive terms of life imprisonment, thirty years, and fifteen years, in compliance with the jury's recommendation, for the crimes of first degree assault, armed criminal action, and attempted first degree robbery as well as his history and character. The evidence regarding his history and character showed that he was a vile and dangerous person, and the sentences he received were not disproportionate to the severity of the crimes of which he was convicted. It was the three convicted crimes, not the four murders, that gained him the sentence he is currently serving. Because the state did not use evidence of appellant's past acquittals to twice prosecute appellant for the four murders, his sentences and convictions in this case should be upheld.
Notable Tenth Circuit opinion on post-Booker notice
Late yesterday, the Tenth Circuit issued a potentially important decision in US v. Dozier, No. 05-6259 (10th Cir. Apr. 5, 2006) (available here), addressing post-Booker notice issues. Though some terminology used in Dozier is not perfectly accurate (e.g., some downward adjustments are called departures), the decision suggests that Booker did not change any key notice rights for the imposition of non-guideline sentences. Here is the key holding of Dozier:
[W]e hold today that Rule 32(h) survives Booker and requires a court to notify both parties of any intention to depart from the advisory sentencing guidelines as well as the basis for such a departure when the ground is not identified in the presentence report or in a party's prehearing submission.
Though articulated in departure terms, the spirit of the Dozier opinion suggests that the Tenth Circuit means these notice rules would also apply to so-called Booker variances.
Following Alabama sentencing reform
This morning's Montgomery Advertiser has this interesting editorial, entitled "Commission has much left to do," which highlights the long path to effective sentencing reform. Here's how it starts:
The passage of statewide sentencing guidelines was a landmark event that holds great potential for helping ease the chronic overcrowding of Alabama's prison. Alabamians owe a generous measure of appreciation to the Alabama Sentencing Commission.
Even with that notable objective accomplished, however, the work of the commission is by no means over. It will now shift its focus to improving community corrections programs and moving toward its eventual goal of truth in sentencing, in which the time sentenced is the time served, as in the federal judicial system.
Related posts on Alabama sentencing reform:
April 5, 2006
A capital experiment spreading in the state laboratories
As detailed in this news account, the new fad of bills to make child molesters eligible for the death penalty has now spread to Tennessee from Oklahoma to South Carolina: "A House Subcommittee voted unanimously on Tuesday for legislation by State Rep. Matthew Hill (R-Jonesborough) to make child rape a capital offense punishable by death or life imprisonment."
Meanwhile, as this story details, new concerns are being raised in South Carolina as that state is on the path to becoming "the second state in the country to make some twice-convicted sex offenders eligible for the death penalty." As the article explains:
Advocates against capital punishment say applying the ultimate penalty could lead to family members refusing to come forward and more rape victims being killed. "It actually may create more death because the person facing the death penalty for this kind of offense might be inclined to say, 'No greater punishment incurred if I killed the victim,'" said Richard Dieter, executive director of the Death Penalty Information Center, a group critical of death penalty laws.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, Calif., often is at odds with Dieter's group. But he said the death penalty shouldn't be imposed "simply to give the rapist an incentive not to kill the victim." It's difficult to take emotion out of this debate, "but that doesn't mean you should get carried away," he said.
Because the bulk of child rapes involve family members, the death penalty could make it more difficult for prosecutors because family members are less likely to come forward, Dieter said.
Recent related posts:
- South Carolina Gov supports death penalty for repeat child rape
- South Carolina bill proposes death for repeat child molesters
- Is capital punishment for repeat child molesters constitutional?
Sentencing programs from Justice Talking
The radio program Justice Talking, which is produced by the Annenberg Public Policy Center and distributed nationally by NPR, has recently done two big programs on interesting and important sentencing topics. One program asked is "Probation and Parole: In Need of a Big Fix?" and another explored "When Kids Commit Crimes, What's a Fair Sentence?"
The program on probation and parole can be accessed at this link, and here is the introduction:
Over four million convicted criminals are on probation or parole in the United States. The number is likely to grow due to strict sentencing laws, over-crowded prisons and the desire of cash-strapped states to reduce the number of incarcerated inmates. Unfortunately, the antiquated system with severely understaffed and poorly trained probation officers can't keep up with the workload. Join us on this edition of Justice Talking as we look at state systems of probation and parole and ask: What's the best way to reduce recidivism, rehabilitate convicts and safeguard the public?
The program on juvenile sentencing can be accessed at this link, and here is its introduction:
There are thousands of juveniles, some as young as 12, serving life sentences with no hope of parole. Others are serving longer sentences in adult facilities or are warehoused in juvenile detention centers with few educational or health care services. Join us on this edition of Justice Talking as we take a look at how teenaged criminals are sentenced. Are kids who commit crimes being rehabilitated or are they returning to the streets in worse shape than ever?
Ohio Commission reponse to Foster
David Diroll, the executive director of the Ohio Criminal Sentencing Commission, was kind enough to send me a copy of his Commission's formal staff response to the Ohio Supreme Court's big recent Blakely decision. (I have done a lot of coverage of the Foster decision, much of which can be found linked in posts here and here.) This memo, which can be downloaded below and was sent to Ohio's felony and appellate judges, has this comical opening:
Did you hear the one about the defendant whose right to a jury trial was vindicated by giving judges more power? Welcome to the sentencing world wrought by the United States Supreme Court’s decisions in Apprendi v. New Jersey, Blakely v. Washington, and U.S. v. Booker and the Ohio Supreme Court's recent effort to make sense of them in State v. Foster and State v. Mathis.
In addition, David sent me an e-mail which provided this interesting report on post-Foster developments the prosects for a "Foster legislative fix" in the near future:
As of now, the only direct legislative response to Foster is a bill being drafted for Rep. Bob Latta that simply strikes the offending language (per Foster) from key sentencing statutes. It does nothing to tackle sentencing consistency or other issues. If enacted, it would merely make the statutes reflect the opinion, easing confusion among practitioners. We have nothing more ambitious in the works at present, but are watching and weighing things.
At a glance, most current sentencing is in line with pre-Foster patterns. But there are anecdotal examples of judges who are using maximum and consecutive terms in more situations (always mindful, of course, of the defendant's right to a jury trial).
If the legislature returns to larger sentencing issues, it probably will occur next session (2007-08). They simply won't be around much until November's lame duck session.
April 4, 2006
Major reasonableness ruling from the Second Circuit
While was was flying over the Second Circuit on my way to Boston for this HLS event, that court released a major ruling about post-Booker sentencing and reasonableness review in US v. Fernandez, No. 05-1596 (2d Cir. Apr. 3, 2006) (available here). Authored by Judge Jose Cabranes, who has long been among the most effective judicial critics of the guidelines, Fernandez continues the Second Circuit's tradition of issuing long opinions with thoughtful perspectives on post-Booker issues.
Fernandez affirms a long within-guidelines sentence over the defendant's objections; along the way, the opinion covers a lot of important post-Booker ground. For example, concerning reasonableness review, the Fernandez court says (lots and lots of cites omitted):
We recognize that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances. Nonetheless, we have expressed a commitment to avoid the formulation of per se rules to govern our review of sentences for reasonableness. We therefore decline to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable.
Although the Guidelines range should serve as a benchmark or a point of reference or departure, for the review of sentences, as well as for their imposition, we examine the record as a whole to determine whether a sentence is reasonable in a specific case. Accordingly, we do not hold that a Guidelines sentence, without more, is "presumptively" reasonable.
The Fernandez court also has much to say about co-defendant disparity and appropriate sentencing considerations under 3553(a). I suspect this passage, for example, may show up in a lot of future briefs:
At Fernandez's sentencing hearing, the Government conceded that "under 3553(a) the Court's empowered to consider virtually any factor in sentencing." Tr. at 12.
We agree that in formulating a reasonable sentence a sentencing judge must consider "the history and characteristics of the defendant" within the meaning of 18 U.S.C. § 3553(a)(1), as well as the other factors enumerated in § 3553(a), and should take under advisement any related arguments, including the contention that a defendant made efforts to cooperate, even if those efforts did not yield a Government motion for a downward departure pursuant to U.S.S.G. § 5K1.1 ("non-5K cooperation"). Section 3553(a)(1), in particular, is worded broadly, and it contains no express limitations as to what "history and characteristics of the defendant" are relevant. This sweeping provision presumably includes the history of a defendant's cooperation and characteristics evidenced by cooperation, such as remorse or rehabilitation.
For additional review and commentary on this important decision, which has many more facets than I can reasonably cover in this space, check out posts at the Second Circuit Sentencing Blog and the Second Circuit Blog.
Off to HLS for the day
Blogging will likely be light the rest of the day as I head off to Boston to participate this evening in this panel at Harvard Law School sponsored by the Harvard BlackLetter Law Journal. The event is titled, "Breaking the Shackles?: Federal Sentencing after the Guidelines," and I have the honor of being on a panel with US District Judge William Young and a set of prominent federal practitioners.
Around the blogosphere
A number of sentencing-related items have caught my eye around the blogosphere:
- Orin Kerr has engendered an interesting debate about judicial activism here following up Judge Bennett's opinion in Saenz addressing substantial assistance departures (first spotlighted in this post).
- Steve Kalar at the NInth Circuit Blog has this thoughtful post about the Ninth Circuit's recent decision in Mix affirming an above-guidelines life sentence (first spotlighted in this post).
- SCOTUSblog here notes that the Supreme Court has scheduled its re-argument in Kansas v. Marsh for Tuesday, April 25, at 1 pm (previous coverage here and here and here).
- How Appealing has links here to media coverage of an interesting Atkins claim litigated in a California capital case.
South Carolina Gov supports death penalty for repeat child rape
As detailed in this AP story, South Carolina "Gov. Mark Sanford announced support Monday for a bill that would make some twice-convicted sex offenders eligible for the death penalty." Here are some more details:
The bill, which still must pass the South Carolina House, would make capital punishment an option for offenders convicted twice of sexually assaulting children under 11. Such crimes "can destroy for a long time, and maybe forever, that young person's ability to function, that young person's trust in older people, trust in others," Sanford said....
Sen. Jake Knotts, R-West Columbia, the sponsor of the Sex Offender Accountability and Protection of Minors Act, said he didn't include the death penalty provision when originally drafting the bill because he was told it was unconstitutional. Now, he says, South Carolina should take advantage of an opportunity to set precedent. "South Carolina shouldn't have to wait on another state to come up and say whether you can do it or not," Knotts said. "We've got a chance to do it, we need to do it."
Recent related posts:
- South Carolina bill proposes death for repeat child molesters
- Is capital punishment for repeat child molesters constitutional?
Not quite a scene from The Sopranos
Yesterday, while two corrupt former executives were getting 18 and 15 years in Kansas (details here), a purported mob boss in Connecticut received a federal sentence of 7½ years. Here are some interesting details from this local account of the sentencing:
Anthony "The Genius" Megale, the Stamford man alleged to be second-in-command of the Gambino crime family, was sentenced to more than seven years in federal prison yesterday for his role in extorting thousands of dollars from two Fairfield County businessmen.
U.S. District Court Judge Janet Bond Arterton said Megale, 52, had made organized crime a career despite two previous prison terms. Megale pleaded guilty to a racketeering conspiracy charge in October, in what authorities have described as one of the state's most significant organized crime rackets. "You simply have no understanding that prison's more than a time out," Arterton said yesterday in a New Haven courtroom before sentencing Megale to 86 months in prison.
More than a dozen family members and friends, including Megale's wife, Rhonda, and their three children, filled the courtroom's seats, several weeping quietly as Arterton handed down the sentence.
Arterton decided against the original sentencing terms set under Megale's plea agreement and imposed a higher sentence on Megale, who initially faced up to 6½ years. "It makes a mockery of the court if the sentence doesn't have some significant increase over last time," Arterton said, referencing Megale's six-year prison term starting in 1990 for racketeering. Megale was returned to prison in 1998 for 10 months after violating parole.
Under his plea agreement, Megale admitted to extorting money from a Stamford strip club owner and another unidentified Fairfield County businessman, and profiting from several illegal gambling operations involving video gaming machines, sports bookmaking and "numbers." Prosecutors said Megale extorted about $60,000 from the two businesses and made thousands more from the illegal machines and bookmaking operations.
Megale's lead attorney, Stephan Seeger said the case was "not an extraordinary" one and repeatedly argued Megale's actions were not substantial enough to define a criminal livelihood. Megale has never been involved in any violence in the racketeering charge, Seeger said. "This case would not make a great episode of the 'The Sopranos' because it's not that interesting," he said.
April 3, 2006
More long (but below-guideline?) white-collar sentences
As noted in this weekend post, white-collar criminals David Wittig and Douglas Lake, two former Westar Energy executives convicted of looting the Kansas utility of millions, went into their sentencing on Monday with the the U.S. Probation Office recommending life sentences. Fortunately for Wittig and Lake, U.S. District Judge Julie Robinson decided to give the defendant a small break. As detailed in this AP story, Judge Robinson sentenced "CEO David Wittig to 18 years in prison [and] Wittig's co-defendant, Douglas Lake, the former executive vice president of Westar, to 15 years in prison." Also, "Wittig and Lake also were ordered to pay fines of $5 million each, in addition to millions of dollars in restitution."
Given that probation offices typically recommend within-guideline sentences, I am inclined to speculate that Judge Robinson technically impose below-guideline sentences. But, since she gave 18 years and 15 years to two offenders in their 50s, I would hardly call these sentences lenient. Indeed, these sentences highlight that many below-guideline sentences may still be quite harsh.
Some related prior posts:
- Debating life imprisonment for white-collar offenses
- A record-long white-collar sentence in Atlanta
- White-collar Booker breaks
- A pattern of white-collar leniency?
- Are the federal guidelines too tough on white-collar offenders?
House Booker hearing follow-up
Today I received a copy of very interesting supplemental written testimony from attorney James Felman, who testified at the March 16 House hearing on Booker (and whose original testimony can be accessed here). This supplemental written testimony, which can be downloaded below and is a very interesting read, addresses issues such as sex offender sentencing and cooperation discounts that were some of the focal points during the House hearing.
Some related prior posts:
- Topless guidelines bill in the works from Sensenbrenner
- 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...
April 3, 2006 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack