April 18, 2006
Insightful commentary on state sentencing realities
A kind reader forwarded this thoughtful commentary about Colorado's "prison spending crisis" that ran in last week's Denver Post. Anyone interested in sentencing reform issues ought to give the whole piece a read. Here are just a few highlights:
After several decades of an ambitious incarceration campaign, Colorado's booming prison population has run headlong into the fact that the state can spend only so much on corrections. Simply put, Colorado faces a prison spending meltdown. This leaves taxpayers with the option of either paying for a hugely expensive long-term prison expansion project, or demanding that lawmakers make sentencing changes to slow the growth of the prison population a main public policy goal....
It now costs roughly $83,000 to build one new prison bed and another $28,000 in annual operations costs. So, the state is looking at a $100 million per year commitment. Corrections spending is already more than 8.5 percent of state expenditures.
Of the more than 5,500 court commitments to Colorado prisons in 2004, more than 72 percent were classified as non-violent crimes.... Drug incarceration has quadrupled over 20 years to more than 20 percent of the prison population, at an annual cost of $100 million (or one new prison per year). In 2004, more than 1,300, or greater than 22 percent, of commitments were for drug offenses. For women it is worse: female drug offenders were a full 30 percent of female commitments.
Lawmakers may also want to consider spending even a fraction of the money on treatment as we do on incarceration. The RAND Corporation study "Controlling Cocaine: Supply Versus Demand Programs" concludes each dollar spent on treatment reduces the cost of crime and lost productivity by $7.46. By contrast, enforcement (arrest, seizure and incarceration) returns just 52 cents. The RAND researchers can be off the mark by half and the result remains that treatment for drug-addicted offenders who commit other crimes to support a habit is more cost-effective strategy than a prison bed....
Parole costs less than $4,000 per offender, while community corrections are a little over $6,000. Compare that to $28,000 for a state prison bed, and every offender who goes from prison to working and paying taxes is a net gain for the rest of us.... Colorado taxpayers [may be] just fine with a prison system crammed full of drug offenders, other non-violent offenders serving long sentences, and potential parolees. But in the near future they might have to decide how much their taxes will go up, or what state functions they are willing to give up, in order to keep it this way.
If a Blakely case is argued in the woods...
and no one reports on it, does it make precedent?
Sorry for the silly metaphysical question, but I am a bit stunned that I cannot find a single press account or any other kind of coverage of the Supreme Court oral argument yesterday in Washington v. Recuenco (No. 05-83). Even the folks at SCOTUSblog did not even bother to provide a preview of the case (as seems to be their custom for all SCOTUS cases) the time to mention Recuenco.
Because the issues in Recuenco concerning the nature of Blakely errors are opaque and perhaps of limited significance, I did not expect the Recuenco oral argument to get a lot of attention. But now I am thinking Recuenco might set some sort of record for least-discussed Supreme Court case.
Recent related Recuenco coverage:
- Recuenco oral argument report
- Recuenco basics
- Why Recuenco is a big little Blakely case
- O Recuenco, Recuenco, wherefore art thou granted Recuenco?
More reflections on Gov Ryan conviction and sentencing
This initial post on the sentencing of former Illinois Gov George Ryan following his conviction on racketeering, fraud and other charges has already generated some interesting comments. In addition, Ellen Podgor has some broader reflections on the verdict here at White Collar Crime Prof Blog.
This news story quotes a local legal analyst making a rough guess at Ryan's likely sentence: "Based upon all the factors that are in the federal sentencing guidelines, a guess would be somewhere between nine and 12 years would be a fair estimate of what his sentence would be." I suppose that's a reasonable guess given all the charges and potential relevant conduct, althoughthere will surely be a lot of dickering over guideline calculations and Booker issues as Ryan's August sentencing approaches.
For the 72-year-old Ryan, perhaps the most critical personal issue might be whether he will be free on bail while pursuing an appeal of his conviction. The complications of the case mean his appeals might take a number of years to resolve, and I am sure Ryan would like to spend that time on the outside.
UPDATE: I had a chance to do a segment discussing some of the complications raised by Ryan's upcoming sentencing with Chicago Public Radio on Tuesday morning, and the audio of the interview can now be accessed at this link.
MORE: How Appealing now has much of the media coverage of the Ryan conviction here.
Another important notice opinion from the Tenth Circuit
As discussed here, earlier this month the Tenth Circuit issued a potentially important decision concerning notice before the imposition of a non-guideline sentence in US v. Dozier, No. 05-6259 (10th Cir. Apr. 5, 2006). On Monday, the Tenth Circuit expanded its discussion of these important issues with a thoughtful and thorough opinion in US v. Calzada-Maravillas, No. 05-5029 (10th Cir. Apr. 17, 2006) (available here).
Calzada-Maravillas covers a lot of important ground in the course of reversing an above-guideline sentence imposed without the defendant having notice of such a possibility. The most significant part of the ruling may be the emphatic rejection by the Tenth Circuit panel of all the government's arguments for why the notice error should be deemed harmless.
April 17, 2006
Executions on track for NC and Virginia
Though lethal injection litigation has disrupted execution plans in California and Florida and Missouri and in the federal system, legal developments in North Carolina and Virginia today keep those states on track to go forward with executions scheduled for later this month.
- In North Carolina, as detailed in this AP story, the federal judge that had questioned the state's lethal injection protocol has now ruled that the "state of North Carolina has taken sufficient precautions to ensure that an inmate scheduled to die this week will remain asleep during his execution."
- In Virginia, as detailed in this article, a "federal judge on Monday refused to stay the execution of Dexter Lee Vinson, who challenged Virginia's method of lethal injection.... After a 45-minute hearing, U.S. District Judge Henry E. Hudson ruled that nothing has changed since he upheld the state's lethal injection procedures in the case of James Edward Reid, who was the last Virginia inmate executed in September 2004."
UPDATE: Thanks to a helpful reader, I can now link to this 7-page order from Judge Howard approving North Carolina's tweaked execution protocol. Here is the key concluding paragraph:
The State's use of the BIS monitor, the execulion team's resulting awareness of the level of consciousness of the plaintiff, and the administration, if necessary, of additional quantities of sodium pentothal to ensure that plaintiff is unconscious prior to the administration of lethal drugs, together satisfies this court that defendants have substantially complied with the terms of the court's April 7, 2006 order, and that the balance of hardships under Blackwelder now favors the State and counsels against issuance of a preliminary injunction and stay in this case.
SCOTUS taking another
capital quirky case
Regular readers know I kvetch a lot about the excessive energy that the Supreme Court and others devote to death penalty (and other "small impact") cases when there are so many other sentencing issues that ought to garner attention (consider, for example, posts here and here and here and here). But it is hard to get off this topic when I learn, as detailed by SCOTUSblog here, that the Supreme Court on Monday announced it will give its very limited time and docket to Carey v. Musladin (05-785) to address the far-reaching and critically important question of "whether it is unconstitutional for a judge in a criminal trial to allow family members of a murder victim to wear buttons depicting the victim, when they are spectators in the courtroom."
[CORRECTION: This in-the-know commentor indicates that Musladin is not a capital case and reasonably suggests that this cert. grant serves as a judicial recognition of recent victim rights' concerns. Such good points reminds me why I am so thankful for the comments of thoughtful readers.]
Of course, as Orin Kerr details here, this case has already garnered a lot of judicial attention and covers all the usual cert-worthy bases. But stepping back from the doctrinal particular, and especially reflecting on the on-going national mess the Supreme Court has helped produced concerning lethal injection protocols, I continue to be greatly troubled by how the Court sets its criminal justice agenda.
Some related prior posts about the cert process:
- Roberts, the cert pool, and sentencing jurisprudence
- Justice Alito jumps into the pool
- The Chief goes swimming
- Pondering a (cert.) pool with much splashing about
- Cert. pool filling up with Blakely cases
Former Illinois Gov Ryan convicted on all charges
As detailed in this article, another high-profile post-Booker sentencing is on the horizon after a "federal jury convicted former Gov. George Ryan today on all charges that as secretary of state he steered state business to cronies in return for vacations, gifts and other benefits for himself and his family." The article notes that Ryan's "racketeering conspiracy charge carries a maximum sentence of 20 years in federal prison," but the story of the guidelines calculation and Booker issues make the sentencing realities nuanced and complicated.
In fact, Eric Zorn at the Chicago Tribune was ahead of the curve on this story when he blogged here that Ryan's conviction would not mark "an ending," but rather serve as "[j]ust the beginning of a whole new process." I would recommend White Collar Crime Prof Blog as the go-to source for commentary and analysis of all the past and future Ryan action.
For now, I'll just pose one question for reader comment: What sentence should a 72-year-old former state governor (who, by the way, commuted all of Illinois' death row at the end of his term) get for his conviction "on 18 counts of racketeering, mail fraud, false statements and tax violations"?
The Ninth Circuit on the need to explain
The Ninth Circuit today in US v. Miqbel, No. 05-10033 (9th Cir. Aprl. 17, 2006) (available here), vacated a pre-Booker sentence imposed upon revocation of supervised release because the district judge failed to adequately state the reasons for a sentence outside the recommended range. In addition to making a great (but illegal) Scrabble word, Miqbel is a lengthy ruling with lots of post-Booker-relevant dicta about sentencing outside an advisory range and the dynamics of reasonableness review.
Telling twosome from Eighth Circuit
The Eighth Circuit today has two notable published sentencing opinions today:
- US v. Bueno, No. 04-2289 (8th Cir. Apr. 17, 2006) (available here), continues the circuit's trend of reversing as unreasonable nearly every below-guideline sentence it reviews. The court in Bueno reverses all of the district court's pre-Booker guideline determinations that favored the defendant, and then simply summarily asserts that the 18-month sentence given below "does not adequately reflect the seriousness of Bueno's offense, afford adequate deterrence, or adequately avoid sentencing disparities among similarly situated defendants."
- US v. Fowler, No. 05-2532 (8th Cir. Apr. 17, 2006) (available here), in contrast, is a win for the defendant. In Fowler, the panel holds that "the government materially breached its plea agreement by advocating for the imposition of the career-offender enhancement, in spite of its promise to recommend that the district court calculate Fowler's sentence based on an offense level that did not include that enhancement."
Sixth Circuit squabble over reasonableness
In US v. Jones, No. 05-5657 (6th Cir. Apr. 17, 2006) (available here), a squabble breaks out within a Sixth Circuit panel as the judges debate the particulars of reasonableness review in the course of affirming a within-guideline sentence. Both the majority opinion (by District Judge Dan Polster sitting by designation) and the dissent (by Judge Karen Nelson Moore) have a lot to say about reasonableness review. Here is the heart of the majority's view of matters:
The sentencing regime that the U.S. Supreme Court created in United States v. Booker, 543 U.S. 220 (2005), places the responsibility for sentencing in the hands of the district judge, who must consult the Guidelines and adhere to the factors set forth in 18 U.S.C. § 3553(a). While this Court reviews a sentence for both procedural and substantive reasonableness, McBride, 434 F.3d at 476 n.3; Webb, 403 F.3d at 383, a sentence within the applicable Guidelines range should not lose its presumption of reasonableness whenever a district judge does not explicitly address every defense argument for a below-Guidelines sentence. Otherwise, the procedural reasonableness review will become appellate micromanaging of the sentencing process.
I think it is interesting that, by virtue of sitting by designation, Judge Polster had a chance to author an opinion for the Sixth Circuit that essentially demands that his reviewing court be sure not to engage in "appellate micromanaging of the sentencing process" of his sentencing decisions and those of his district court colleagues.
Recuenco oral argument report
Thanks to a number of helpful attendees, I have heard a few reports concerning this morning's oral argument in Washington v. Recuenco (No. 05-83). Based on these reports, I no longer think Recuenco is likely to turn out to be a big little Blakely case. Apparently, the Justices spent a lot of time trying to sort through the particulars of Washington state law, and that fact alone might suggest that the Court could possibly decide to DIG the case.
Even if the case is not sent packing through a DIG, the peculiar case facts in Recuenco may entail a relatively narrow (and thus relatively unimportant?) ruling. When not debating Washington law, the Justices were apparently concerned with indictment and notice issues; they did not cleanly focus on the big issue of whether clear Blakely sentencing errors ought to be subject to harmless error treatment.
Of course, these are second-hand reports of the argument, and I may have more tea leaves to read once I have a chance to review the official transcript in the days ahead.
As detailed in this recent post, the Supreme Court today starts a criminal-case-heavy session with arguments this morning in Washington v. Recuenco (No. 05-83). Recuenco will explore whether Blakely errors can be subject to harmless-error analysis or instead are structural errors. I have here described Recuenco as a big little Blakely case, and my numerous prior posts about the case are assembled in this archive.
For more basic background on the facts and issues in Recuenco (as well as links to the parties' briefs), check out this account of the case from the Medill folks at Northwestern. In addition, the folks at Cornell Law School have this effective write-up of the Recuenco case that also includes a discussion and analysis section.
Examining mandatory minimum sentences
Two distinct newspaper articles this morning both end up putting a critical spotlight on mandatory minimum sentencing:
- This article from Utah discusses at length Judge Paul Cassell's testimony last month in the House hearing on Booker (background here and here and here), and it begins by noting that "Cassell told a House Judiciary subcommittee that repealing 'irrational mandatory minimum sentences' is one way Congress could improve the sentencing process."
- This article from Pennsylvania explains that a recent sentencing memorandum from U.S. District Judge Jan E. DuBois "has rekindled a debate among jurists, legal scholars, criminal defense attorneys and prosecutors about the wisdom of mandatory minimums." The article canvasses the traditional arguments given for and against mandatory sentencing terms in the federal system.
April 16, 2006
Will Atkins ultimately prevail with his Atkins claim?
As detailed in posts here and here, a jury last year concluded that Daryl Atkins — the defendant at the center of the Supreme Court's ruling in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibits executing mentally retarded offenders — was not mentally retarded. As a result of this ruling, Atkins was still constitutionally eligible to have his death sentence carried out.
Later this week, as detailed in this article, the Virginia Supreme Court will consider Daryl Atkins' Atkins claim. The article discusses the conflicting evidence concerning Daryl Atkins' mental status, though I am also intrigued by whether it was appropriate for Virginia to require him to prove his mental retardation by a preponderance of the evidence.
Some prior related posts:
- Will Atkins get the benefit of Atkins?
- Atkins does not get the benefit of Atkins
- When Atkins meets Blakely in Apprendi-land
- SCOTUS speaks to Atkins capital procedures
A criminal closing act for SCOTUS
Folks interested in a range of criminal justice issues should be getting excited about the last set of Supreme Court oral arguments this Term. As detailed in this SCOTUS argument calender, more than half of the oral arguments scheduled for the next two weeks involve criminal cases. (Also, I suspect we might see some criminal case opinions issued over the next few weeks as well.)
The sessions starts with arguments Monday in Washington v. Recuenco (No. 05-83) exploring whether Blakely errors can be subject to harmless-error analysis or instead are structural errors. I have here described Recuenco as a big little Blakely case, and my numerous prior posts about the case are assembled in this archive.
On a related theme, Tuesday brings oral argument in United States v. Gonzalez-Lopez (No. 05-352) exploring whether the denial of a criminal defendant's right to counsel of choice requires automatic reversal on appeal. SCOTUSblog here has a good review of the Gonzalez-Lopez basics, and Tony Mauro also has a great discussion of the case in Legal Times available here.
Also on tap for the next two weeks is the re-argument in the capital case of Kansas v. Marsh (some background here and here and here) and oral argument in the lethal injection case of Hill v. McDonough (some background here and here). And, another pair of cases will be exploring interesting issues relating to the traditional criminal law defenses of duress and insanity.
UPDATE: Thanks to How Appealing, I can note this detailed AP article about the insanity issue to be before the Supreme Court this Wednesday in the case of Clark v. Arizona.