Sentencing Law and Policy

All death sentences commuted in Philippines

Continuing the themes of religion and capital punishment (discussed recently here), Easter brings interesting death penalty news from the Philippines.  As this article details:

With the resurrection of Christ as a backdrop, President Macapagal-Arroyo yesterday announced that all death row convicts would be spared and the maximum penalty commuted to life imprisonment.

"As we celebrate and rejoice in Jesus' resurrection, I wish to announce that we are changing our policy on those who have been imposed the death penalty.  We are reducing their penalty to life imprisonment," the President said in an Easter message released by Malacañang....

Malacañang issued a statement saying the new policy would benefit roughly 1,000 convicts on death row.... The top three crimes of those on death row are rape (471), murder (192) and kidnapping for ransom (157).  Other cases involve, among others, robbery with homicide (72), rape with homicide (71), violation of the Dangerous Drugs Act (41), and kidnapping with serious illegal detention (38).

Interesting capital developments in the mid-Atlantic states

Today's Washington Post includes interesting death penalty news from two mid-Atlantic states:

• From Maryland, this article notes that "Lt. Gov. Michael S. Steele broke his long silence yesterday on the way the state is handling death penalty cases, saying he believes there is reason for concern about racial, economic and geographic disparities in the way people are sentenced." 

• From Virginia, this article spotlights that a clemency petition has presented Virginia's new governor, Tim Kaine, with a tough decision: "Attorneys for Dexter Lee Vinson, a Suffolk man who has been on death row since 1999 for the abduction and killing of his ex-girlfriend, filed a formal clemency petition to Kaine.... Vinson's petition places Kaine for the first time at the intersection of his personal faith and his official duty."

In addition to the geographic proximity, these two stories highlight the connections and possible tensions between religious convictions and the death penalty.  I find the intersection of these issues fascinating, as evidenced by some of my prior posts listed below:

• Debating religion and the death penalty
• Virginia governor campaign spotlights death penalty and religion
• Will SCOTUS consider Bible-influenced capital sentencing?
• New resource examining religion and the death penalty
• Sentencing and Religion
• Sister Prejean powerful perspective

Blogging news and notes

Lots of blogging news and notes this weekend:

• Blog magnate Paul Caron is celebrating his blog's two-year anniversary.  Among Paul's many amazing accomplishments is his average of nearly 50 posts per week for this period.  I feel like I post a lot (too much?), but I only achieve about half that production.

• As recently noted by Orin Kerr and Howard Bashman, later this month at Harvard Law School there is a conference on blogs and legal scholarship entitled "Bloggership: How Blogs Are Transforming Legal Scholarship."  Details are set forth here, and I have to thank the aforementioned Paul Caron for inviting me to participate.

• Ian Best at 3L Epiphany has impressively assembled here a (comprehensive?) collection of cases that cite legal blogs.  Needless to say, I am pleased to discover that this blog, according to Ian, has the "most case citations ... with 21 citations in 17 cases."  In addition to thanking Ian for assembling this list, I want to publicly thank all the judges (and clerks) who read and have cited this blog.  (Thanks also to Eugene Volokh for noticing.)

UPDATE: Concurring Opinions has a funny riff on 3L Epiphany's blog cite count.

Fascinating victims rights case from Alaska

Today the Alaska Court of Appeals issued a fascinating 56-page opinion holding that crime victims do not have independent standing to appeal a defendant's sentence.  The opinion in Cooper v. District Court, No. A-8835 (Alaska Ct. App. Apr. 14, 2006) (available here), includes a very thorough collection and discussion of cases from around the nation on this issue.   

I am not surprised by the thoughtfulness of the opinion once I saw it was authored by by Judge Mannheimer, who has done fantastic work on state Blakely issues (as detailed here and here).  Here is the court's own summary of its work:

As we explain in more detail later in this opinion, courts from other states are unanimous in holding that a crime victim does not have the right to participate as an independent party in a criminal case.  Many of these courts acknowledge that a crime victim does have standing to seek appellate relief if the trial court or an executive branch agency violates one or more of the procedural rights given to victims in a victims' rights act — generally, the right to advance notice of court proceedings, the right to be present during court proceedings, and the right to be heard before the court makes certain types of decisions.  But these same courts agree that a crime victim is not an independent litigant in a criminal case, and that a crime victim does not have the right to challenge the propriety or legality of the substantive decisions made by the trial court — decisions such as what sentence should be imposed on the perpetrator of the crime.

For the reasons explained here, we agree with these courts that crime victims do not have an independent right to appeal the sentence imposed on the perpetrator of the crime. We also reject the contention of the Office of Victims' Rights that they have an independent right to challenge the decisions of the trial court in any case where the Office has appeared on behalf of a crime victim.

Homelessness and the Eighth Amendment

As well covered by How Appealing, a divided panel of the Ninth Circuit today ruled, in the words of this this Los Angeles Times article, that "Los Angeles' policy of arresting homeless people for sitting, lying or sleeping on public sidewalks as 'an unavoidable consequence of being human and homeless without shelter' violates the constitutional prohibition against cruel and punishment."

The majority opinion in Jones v. City of Los Angeles, No. 04-55324 (9th Cir. Apr. 13, 2006) was authored by Ninth Circuit Judge Kim McLane Wardlaw and was joined by Nevada Senior District Judge Edward Reed sitting by designation.  The opinion runs 47 pages and is available at this link.  A dissenting opinion from Ninth Circuit Judge Pamela Ann Rymer runs 25 pages and is available here.

For a variety of reasons, I think I would it is a good bet that this case will be reconsidered en banc.

UPDATE: Over at How Appealing, Howard has collected a lot of the major media coverage of the ruling here.  And Orin Kerr has some interesting commentary here about the remedy in Jones.

Should prior military service reduce a sentence?

This interesting federal sentencing story from Alabama, entitled "Soldier gets 5-year sentence," has me thinking again about whether guideline sentencing systems ought to provide (and regulate) sentencing reductions for military service.  Here are highlights from the article:

Patrick Lett seemed to have everything going for him, including a 17-year Army career that saw him rise to the rank of sergeant and serve honorably in the Iraq war and Operation Desert Storm a decade earlier.  But something went terribly awry in early 2004.  Lett, 37, of the Monroe County town of Peterman, fell in with some cousins who law enforcement investigators contend sold tens of thousands of grams of crack cocaine in the Monroeville area.

Lett pleaded guilty in December to seven counts of distribution of crack.  On Thursday, U.S. District Judge William Steele, who appeared moved by Lett's story, sentenced him to five years in prison -- the minimum allowed by law. Defense attorney Glenn Cortello said his client also faces expulsion from the military.

The prison term is 10 months shorter than the punishment recommended under advisory sentencing guidelines, but the judge rejected a request Cortello to cut the prison time.  A judge could order a shorter sentence by ruling that the mandatory-minimum sentence would be unconstitutionally excessive.

I often think of honorable military service and other past good deeds by a defendant as the flip side of criminal history.  Criminal history, after all, is just a past record of prior bad deeds, and every sentencing system (guideline or otherwise) provides for sentence enhancements (often huge enhancements) based on such a record of prior bad deeds. 

Doesn't it make some logical sense for a sentencing system to similarly provide for sentence reductions based on a notable record of prior good deeds such as military service?  Especially during a time of war, wouldn't a sentence reduction based on honorable military service serve as a tangible way to recognize and reward service to our country?

Moussaoui sentencing news and notes

In part because the MSM is all over the story, I've not given the Moussaoui capital trial much coverage.  But, based on press accounts, the last few days of the Moussaoui sentencing hearing have been remarkable. 

How Appealing collects here the last news stories discussing Moussaoui's own provocative testimony.  And some interesting commentary by various thoughtful folks can be found at FindLaw, at The Huffington Post, and at TalkLeft.

Eleventh Circuit declares Booker inapplicable to restitution

Getting in line with other circuits that have considered the issue, the Eleventh Circuit today in US v. Williams, No. 04-15117 (11th Cir. Apr. 13, 2006) (available here), declares that "Booker does not apply to restitution orders."  Here's the court's reasoning:

We do so because restitution orders are authorized by the MVRA, a statute unaffected by Booker. Additionally, the MVRA does not set an upper limit on the amount of restitution.  Therefore, a restitution order cannot be said to exceed the maximum provided by the penalty statutes, and it cannot violate the rule announced in Booker.... 

The Williams court drops a footnote to make this point: "In holding that Booker does not apply to restitution orders, we join the Third, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Circuits."

A few related posts:

• Third Circuit rules, en banc, Blakely and Booker inapplicable to restitution and forfeiture
• Eighth Circuit joins chorus saying Blakely does not apply to restitution
• Reviewing the status of restitution

UPDATE: Thanks to law.com, you can access here an article in the Daily Business Review by Carl Jones about this Williams case.

The latest rounds in the lethal injection scrums

The now seemingly endless litigation battles over lethal injection procedures have recently advanced in a number of settings:

• In North Carolina, as detailed in this New York Times article, North Carolina official have responded to a federal judge's order concerning lethal injection procedures (background here) by reporting "that they had bought and intended to use a device to monitor the brain waves of the condemned inmate."  More details on this somewhat peculiar development can be found in additional stories here and here.

• In California, as detailed in this AP story, the death row defendant who escape a February execution date because of concerns about California's lethal injection procedures "has filed another lawsuit claiming there must be public hearings before San Quentin State Prison could have changed its lethal injection protocol."  More details on this somewhat unsurprising development can be found in an additional story here.

• In the Supreme Court, the argument in the Florida lethal injection case (Hill v. McDonough) is now just two weeks away, and all the other on-going action certainly raises the stakes and the spotlight the case will get.  But, as Orin Kerr effectively reminds us this recent post, Hill is only technically about the litigation process, though he points to this interesting states' amicus brief highlighting capital litigation realities.  (The parties' briefs in Hill can be found at this link from the ABA.)

And, for good measure and at an opportune time, Debby Denno has just posted this abstract on SSRN for a paper entitled "The Lethal Injection Quagmire: How Medical Participation and Procedures have Changed the Face of Executions."  Though the paper apparently is not yet available, the abstract states that the "article concludes that the more information that is gathered about lethal injection, the more constitutionally problematic the procedure appears to be."

For additional background on  these issues, the DPIC has this webpage discussing the lethal injection litigation (and lots of additional information and commentary can be found scrolling through this archive of my death penalty posts).

Recuenco and the complicated interplay of error

In this recent post, I noted that on Monday the Supreme Court will finally hear argument in Washington v. Recuenco (docket 05-83) to explore whether Blakely errors can be subject to harmless-error analysis or instead are structural errors.  I also detailed reasons why a seemingly little Blakely issue could still makes for a big case in Recuenco.  (Most Recuenco posts are assembled in this archive and highlights are linked in this post.)

A key point for the intersection of Blakely issues and error review issues in Recuenco is that the defendant preserved his jury trial claim and thus the case does not directly implicate any plain error doctrines relating to unpreserved claims.  However, a ruling in Recuenco still could impact some Blakely/Booker plain error litigation; there is a complicated interplay between harmless/structural error doctrines and plain error doctrines.

To better understand this interplay, I asked a top-shelf research assistants to try to unpack how Recuenco might impact plain error issues.  My terrific RA produced two brilliant documents: (1) a cogent memo walking though these error issues, and (2) a detailed appendix assembling Booker plain error doctrines as developed by the federal circuit courts.  Both great documents are provided for download below:

Download recuenco_blakely_errors_memorandum.doc

Download appendix_a_ summarizing booker plain error

More House Booker hearing follow-up testimony

In this recent post, I noted the compelling supplemental written testimony from attorney James Felman, which followed up on his work at the March 16 House hearing on Booker.  Today I finally received a copy of Distict Judge Paul Cassell's supplemental testimony, which can be downloaded below and is also a very interesting read. 

Judge Cassell's supplemental work includes a thoughtful examination of the six cases that the Justice Department cited to argue that the Booker sentencing system was not working.  (Notably, most of these cases involve pre-Booker sentencings reviewed by the Ninth Circuit in ways that simply reflect Booker transition issues.) Judge Cassell's testimony also incorporates a letter and study from Chief Judge Wolf of the District of Massachusetts, which suggests that many cases that the US Sentencing Commission has counted as judicial departures/variances may actually involve actually govt-sponsored departures.

Download cassell_supplemental_house_booker_testimony.pdf

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
• House Booker hearing follow-up
• 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...

First Circuit en banc affirms above-guideline sentence

The First Circuit, sitting en banc, today approved an above-guideline sentence as reasonable in US v. Scherrer, No. 05-1705 (1st Cir. Apr. 12, 2006) (available here).  (I will have to soon update this post noting that the government is prevailing in nearly all reasonableness battles on appeal.)   The interesting majority opinion in Scherrer, authored by Judge Boudin (who also authored other recent First Circuit work on reasonableness), reaches this conclusion:

In sum, the district judge had a reasonable basis for exceeding the guideline maximum. The only close call is whether the amount by which he exceeded the maximum is also reasonable: the guideline maximum was five and a quarter years; the sentence imposed was eight years. Numerically, the jump is not vast; as a percentage it is considerable.  Deciding just how far a judge should vary from the range, where a basis for variance is made out, is quite hard to measure. In this case the sentence is not out of line with other upward variances in egregious cases.

Judge Lipez adds an interesting and thoughtful concurrence in Scherrer, which culminates with these sentiments:

Of all the important work done by the district courts, nothing is more important than their sentencing work.  With so much at stake -- for defendants, victims, prosecutors, and the public -- the district courts should take the extra time, which will be minimal, to respond in some detail to the specific arguments of the government and the defendant.  That will be time well spent.

Interesting little opinion on the right to allocute

I just noticed an interesting little opinion on the right to allocute at sentencing from the Fifth Circuit.  In US v. Magwood, No. 05-20352 (5th Cir. Apr. 10, 2006) (available here), a panel holds that the defendant's right to allocute was violated.  However, the panel goes on to find that there was "no miscarriage of justice" and thus, reviewing for plain error, the court declines "to exercise our discretion to correct the district court's error."

US Sentencing Commission's recent guideline amendments

In some posts linked below, I bemoaned in various ways that the US Sentencing Commission has largely ignored Booker (not to mention Blakely) its guideline amendment process.  Rather than repeat those points, I will react to this recent USSC press release about the latest guideline amendments by noting the one-way upward ratchet we regularly see in the guideline amendment process.  By my rough count, all seven formal changes to the guidelines involve the addition of upward sentencing enhancements.

That said, there are two amendments that indirectly soften some rough edges of the guidelines.  This amendment cycle includes a revised policy statement regarding Bureau of Prisons' motions for sentence reductions and revised commentary concerning what an organization must do to receive credit for cooperation at sentencing.  This latter development is discussed at length in this recent National Law Journal article.

Some related posts on USSC amendment process:

• A loud deafening silence from the Sentencing Commission
• What is the Sentencing Commission fiddling while the crack guidelines burn?
• Friday afternoon ranting about the post-Booker world

Ohio Supreme Court denies reconsideration in Foster

As detailed in posts here and here, after the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy, the Foster defendants and a supporting amicus filed for reconsideration claiming that the retroactive application of the remedy was unconstitutional.  As detailed at the end of this order document, the Ohio Supreme Court today denied the motions for reconsideration in Foster (and the companion case Quinones).

I suspect that a cert petition (and/or habeas petitions?) may be the next battle ground for debating Blakely in Ohio.

Some recent related posts on Foster:

• Ohio Commission reponse to Foster
• Foster's impact on plea bargains and appeals
• A prosecutor's view on Foster
• A sentencing judge's view on Foster
• Fascinating Foster follow-up on Ohio sentencing reforms

Reviewing the lethal injection scrummages

This morning's New York Times has this article by Adam Liptak reviewing all the recent litigation over lethal injection.  Here's how it starts:

Judges in several states have started to put up potentially insurmountable roadblocks to the use of lethal injections to execute condemned inmates. Their decisions are based on new evidence suggesting that prisoners have endured agonizing executions. In response, judges are insisting that doctors take an active role in supervising executions, even though the American Medical Association's code of ethics prohibits that.

Some recent related posts:

• Trans-coastal lethal injection inspections
• The latest (silly?) front in the lethal injection scrummages
• The lethal injection debate rages on
• Back to the lethal injection scrum in Morales
• And the lethal injection litigation played on...
• Back to the lethal injection litigation
• More lethal injection scrummages

UPDATE: TalkLeft has more on the NY Times article and the broader lethal injection debate here.

Around the blogosphere

I am so busy on so many fronts these days, I have not had time to spotlight a number of great crime-and-sentencing posts around the blogosphere.  To make up for a lot of missed items, I'll just point to a few blogs with many posts worth reading:

• OrinKerr.com
• Capital Defense Weekly
• Second Circuit Sentencing Blog
• Fourth Circuit Blog
• Ninth Circuit Blog

Also, great posts at ELSBlog and Concurring Opinions thoughtfully explore the federal law bias in criminal justice scholarship.

Important Ninth Circuit ruling on post-Booker sentencing

The Ninth Circuit today has issued a very important decision on post-Booker sentencing in US v. Zavala, No. 05-30120 (9th Cir. Apr. 11, 2006) (available here).  Here is how the per curiam decision begins:

Juan Antonio Zavala appeals the sentence that was imposed upon him after he was convicted of conspiracy to distribute or to possess with intent to distribute methamphetamine and of distribution of methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846.  His sole claim on appeal is that the district court violated Booker when it "presumed" that the advisory Sentencing Guideline calculation set forth the proper range for sentencing.  We vacate the sentence and remand.

And, within an opinion that is a great read, here is one of the many money paragraphs:

In this area, were a presumption proper, we suppose it would be a mandatory rebuttable presumption.  But even that is more than a mere starting point because it gives particular weight to the thing presumed.  It would indicate that the Guideline range is to be used unless (by some evidentiary standard) a party can prove the contrary.  That is much more than a mere consult for advice, and the Guidelines are to be no more than that.  See Booker, 543 U.S. at 264, 125 S. Ct. at 767.  If a district court presumed that the sentence should be a Guideline range sentence, it would thereby make it much more than something to be consulted and would give it much heavier weight than § 3553(a) now does.  That leaves it as a factor in the sentencing alchemy.

Needless to say, defendants and defense attorneys are likely to enjoy Zavala more than prosecutors.  Especially because the case has lots and lots of pro-discretion dicta, it will be especially interesting to see reactions to, and ripple effects of, this important opinion.  (E.g., I would not be surprised by en banc and/or cert petitions from the government in Zavala.)

Gender disparity plot thickens in Eighth Circuit

Yesterday in this post, I pondered whether gender might have played a role in the sentencing of a husband and wife convicted at trial of a series of mail fraud and bank fraud offenses.  In US vs. Bistrup, the husband (who was clearly far more involved in the fraud scheme than the wife) received a sentence of 188 months, which was the very top of his applicable guideline guideline range; the wife was given only two years' probation despite facing a guideline range of 37-46 months.  Notably, the government did not appeal the wife's below-guideline sentence.

Today, another Eighth Circuit decision has me thinking that prosecutors may be responsible for a gendered skew in sentencing.  In US vs. Givens, No. 05-1711 (8th Cir. Apr. 11, 2006) (available here), the (male) defendant pled guilty to one count of bank fraud and faced a guideline range of 24-30 months.  The district court, following the probation officer's recommendation, ordered one year of house arrest, five years supervised release, community service, and restitution of over $1.2 million.  Nevertheless, the prosecutors decided to appeal this sentence, and the Eighth Circuit reverses the sentence saying that "the district court abused its discretion in departing so drastically from the calculated guidelines range."

In Givens, the Eighth Circuit concludes in this way:

In this case the district court gave significant weight to Givens' history and characteristics and showed a great deal of sympathy toward him. The court gave too much weight to these factors and not enough to the other portions of section 3553(a).  The "time-served" plus house arrest sentence does not properly consider Congress's desire to avoid unwarranted sentencing disparities and the brevity of the sentence fails to reflect the seriousness of the offense, promote respect for the law or provide just punishment. 18 U.S.C. § 3553(a)(1)(A), (6).

I encourage everyone who thinks the federal sentencing system does a good job achieving uniformity to compare what happened to Mrs. Bistrup and Mr. Givens.  Mrs. Bistrup gets merely probation after being convicted of multiple fraud counts at trial and facing a guideline range of 37-46 months; meanwhile, Mr. Given pleads guilty, faces a lower guideline range, but the Eighth Circuit rules that a year of house arrest, restitution of over $1.2 million, and additional sanctions are too lenient.  Hmmm....

Why Recuenco is a big little Blakely case

After granting cert way back in October, next Monday the Supreme Court will finally hear argument in Washington v. Recuenco (docket 05-83) in order to explore whether Blakely errors can be subject to harmless-error analysis or instead are so-called structural errors.  The intersection of Blakely issues and appellate review issues makes Recuenco hard to unpack easily, but I hope to provide in the week ahead  some detailed coverage of what to expect in Recuenco.  In this first post, I wanted to note some reasons why a seemingly little Blakely issue still makes for a big (and messy?) case in Recuenco:

1.  Justice Scalia, as detailed here, has long been a vocal advocate against harmless-error review in the context of Sixth Amendment jury trial violations.  It will be interesting to see not only if Justice Scalia sticks to his guns in Recuenco, but also if he might brings new Justices Alito and Roberts along for the ride.

2.  Recuenco, though a state case, could in various ways impact a range of Booker and post-Booker appellate review issues in the federal courts.  (In a future post, I will cover more fully the very complicated intersection of harmless/structural error doctrines and plain error doctrines.) 

3.  Especially with the prior conviction and mandatory minimum exceptions to Blakely on seemingly shaky ground, a ruling in Recuenco could greatly impact the ripple effect of any future expansions of Blakely.

4.  As hinted in point 1, Recuenco is the first opportunity for Chief Justice Roberts and Justice Alito to weigh in (or not weigh in) on the Supreme Court's Apprendi-Blakely-Booker Sixth Amendment jurisprudence.  Especially with many other Blakely-Booker issues on the Court's horizon, Recuenco should provides some valuable tea leaves for reading about the new justices' take on the Sixth Amendment.

Most of my Recuenco posts are assembled in this archive, and here are highlights of the basics:

• SCOTUS taking up Blakely harmless error issue!
• O Recuenco, Recuenco, wherefore art thou granted Recuenco?
• Sorting through Blakely error and Recuenco
• Justice Scalia on Sixth Amendment errors as structural