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April 29, 2006

A couple of compelling capital commentaries

Two great commentaries about capital cases in the news are available on-line this weekend:

April 29, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Historical reflections on the law blogging conference

Unsurprisingly, law bloggers are providing diverse assessments of the law blogger conference at Harvard Law School.  You can check out distinctive accounts from Althouse, Concurring Opinions, Legal Theory Blog and Timothy Armstrong, and decide for yourself who has produced the King James version of the law professor blogging bible.  (The conference papers can still be accessed at this special SSRN page.)

Reflecting on all the blog talk, a (slightly artificial but useful) dichotomy about history captures my sense of the current divide between traditional legal scholarship and blogging.  Orin Kerr in his paper says serious legal scholarship is supposed to be "lasting," but that seems a more fitting account of historical scholarship.  And that leads me to realize the forms and norms of traditional legal scholarship have evolved to a point where law review articles are now much better suited to reflecting on legal history, rather than being suited to helping shape legal history.

This simply dichotomy — between writing that reflects on legal history and writing that seeks to shape legal history — gives me an interesting frame for examining other conference contributions.  Gail Heriot suggests in her paper that bloggers are following in the footsteps of Plubius; obviously, the Federalist Papers were written to shape history, not to simply reflect on it.  Similarly, points made by Randy Barnett, Michael Froomkin, Larry Ribstein, Eugene Volokh, Orin and others about law professors as public intellectuals highlight that most law professors are interested in shaping current legal debates; we generally are not — and should not — be content to just sit on the sidelines writing "serious legal scholarship" that merely records and reflects on legal debates for the ages.

This historical frame on the blog-as-scholarship debate also informs many others' comments, given that, as Winston Churchill famously said, "history is written by the victors."  Tellingly, Paul Butler — the only person of color speaking at the conference — started by saying that blogs "walk up to legal scholarship and slap it in the face."  Traditional legal scholarship has rarely focused on issues of the greatest importance to minorities and the disenfranchised, whose issues are hard to see clearly from the heights of the ivory tower.  Ann Althouse's entire approach to blogging highlights the import and value of shaking up traditional norms of both legal scholarship and the public engagement of law professors.

Stated in extreme terms, traditional legal scholarship is now best suited to reflecting a top-down view of legal history, while law blogs present the possibility of helping to shape legal history from the bottom-up.  (Law professor boggers are, after all, one unit in an Army of Davids.)  Indeed, perhaps this explains Brian Leiter's debatable observation that "that only a miniscule number of first-rate legal scholars in any field actually blog on scholarly topics."  Folks who achieve the most success articulating their own top-down views of legal history may be less inclined to spend time trying to help shape legal history from the bottom-up.  In my view of a perfect scholarly world, law professors should aspire to do both.

April 29, 2006 in On blogging | Permalink | Comments (14) | TrackBack

Is a prostitute a victim of her madame?

This story from Virginia about the sentencing of a woman who ran an escort service documents the sentencing significance of the question headlining this post:

Barbara Eileen Tanner, 52, owned and operated Exclusively Yours Escorts, which sent 75 call girls to Virginia hotels from 1998 to 2004.... Tanner pleaded guilty Dec. 21 to one count of money-laundering under an agreement with the U.S. attorney....

Tanner's presentencing report, prepared by probation officials, included the women who worked for her as victims.  By including them as victims, the federal sentencing guidelines' recommended sentence was between 41 and 51 months. Without listing those women as victims, the range would have been 24 to 30 months....

Robert E. Battle, Tanner's defense attorney, said the court should not consider the prostitutes as victims because the women were co-conspirators, not victims, and that there was no indication that someone lured them to become prostitutes.  "Most of the women were actually prostitutes before this," Battle said.  "Barbara Tanner did not contact these people. They contacted her."

But the judge and Assistant U.S. Attorney David T. Maguire disagreed, saying that the promise of money for sex was enough to lure the women.  Men who used Tanner's escort service paid $125 per half-hour spent with an escort, or $175 for a full hour.

April 29, 2006 in Offense Characteristics | Permalink | Comments (12) | TrackBack

April 28, 2006

Interesting capital notes and reading

Thanks to the Death Penalty Information Center and Capital Defense Weekly, I can close out an interesting capital sentencing week (some details here and here) with some links to additional death penalty food for thought.  Because I'm low on energy, I am just going to provide titles with link:

April 28, 2006 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Two important reasonableness opinions from the Seventh Circuit

Though I am distracted by other on-going events, I did see two significant reasonableness opinions from the Seventh Circuit today.  Until I have time for broader comment, I'll just post links and the opening paragraphs of these notable decisions:

US v. Lange, No. 05-2787 (7th Cir. Apr. 28, 2006) (available here):

Glenn Lange plead guilty to distributing child pornography.  He claims that he amassed his collection of pornographic photographs because his “Asperger’s-like” disorder made him unable to control his compulsion to do so. He requested a downward departure on the basis of diminished capacity, which the district court denied. After reviewing the sentencing factors in 18 U.S.C. § 3553(a), the district court sentenced Lange to 55 months imprisonment, a sentence within the advisory Guidelines range.  He appeals, claiming that the sentence was unreasonable. For the following reasons, we now affirm.

US v. Baker, No. 05-2499 (7th Cir. Apr. 28, 2006) (available here):

On August 19, 2004, a grand jury sitting in the Central District of Illinois returned a threecount indictment charging John Baker with two counts of distribution of child pornography, see 18 U.S.C. § 2252A(a)(1), and one count of possession of child pornography, see id. § 2252A(5)(B). In compliance with a plea agreement, Mr. Baker pleaded guilty to one count of distributing child pornography in exchange for the dismissal of the remaining counts.  The district court sentenced Mr. Baker to 87 months’ imprisonment, a term below the advisory guidelines range of 108 to 135 months.  The court also imposed a lifetime of supervised release.  The Government now appeals; it submits that the sentence imposed by the district court is unreasonably low. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

April 28, 2006 in Booker in the Circuits | Permalink | Comments (6) | TrackBack

Moussaoui case provides fascinating glimpse into capital jury realities

This AP article provides an update on the deliberation of the capital jury in Zacarias Moussaoui's trial:

The judge in Zacarias Moussaoui's death penalty trial admonished jurors Friday to avoid looking up words in the dictionary after learning that one went on the Internet to see what "aggravating" means.  How aggravating and mitigating factors balance out in the jurors' minds is key to their deliberations, which resumed after a daylong break called because one juror was sick....

Deliberations halted briefly Friday after the court learned that a juror had looked up "aggravating" online. U.S. District Judge Leonie Brinkema decided in a closed hearing that the juror's misstep wasn't significant enough to stall deliberations further, but told the jury not to look up words again.

She said the word "essentially means to make something worse" and pointed to jury instructions that define aggravating factors as "factors or circumstances that tend to support the death penalty." Moussaoui, after the hearing and out of the jury's presence, declared loudly, "Moussaoui aggravating curse on America."

April 28, 2006 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

If you love blogging about blogging about blogging...

Rashomon then you will love this post.

I'm done with my panel at this conference at Harvard Law School — entitled "Bloggership: How Blogs Are Transforming Legal Scholarship" — on blogs and legal scholarship.  As is always the case in conferences of this nature, I now feel like I did not have the time to say most of what I wanted to say (and I'm sure even what I said could have been said a lot better).  But, of more lasting import, I can sit in the audience and multi-task, and right now I'm listening to panel two and also checking out who else is commenting on the conference.  Here's what I've found:

Have I missed anyone?  Needless to say, I see the diversity of perspectives in all these comments — and their Rashomon quality — reinforce some of the points I make in my paper contribution (one of the bunch that can be accessed at this special SSRN page).

April 28, 2006 in On blogging | Permalink | Comments (0) | TrackBack

April 27, 2006

Lethal injection litigation developments

Though we'll have to wait a few months for the Supreme Court's decision in the Hill case (background here and here), there are notable developments today in other lethal injection litigation:

Meanwhile, I think the Supreme Court is still facing a lethal injection challenge from Virginia, which as of this writing is scheduled to conduct an execution on this evening at 9pm.

UPDATES:  How Appealing has assembled the local news coverage of these execution litigation delays in California and Missouri.  Meanwhile, as this article details, Virginia went forward with a lethal injection execution last night.

April 27, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Off to talk about blogging...

This morning I'm off to Boston for this exciting conference at Harvard Law School on blogs and legal scholarship — entitled "Bloggership: How Blogs Are Transforming Legal Scholarship."  The interesting papers for the conference, including my contribution, can be accessed at this special SSRN page

Ironically, blogging will be likely be light while I spend time with other law bloggers talking about blogging.  But, as detailed below, the last two weeks have brought plenty of sentencing action to keep everyone busy:





April 27, 2006 in Recap posts | Permalink | Comments (1) | TrackBack

More coverage of the Hill lethal injection argument

I noted here that early press coverage of the oral argument in Hill suggested that a number of Supreme Court Justices were interested in broadly exploring lethal injection protocols and did not confine their questions to the narrow procedural issue raised in the case.  Additional press coverage confirms this story.

For example, Tony Mauro's account of the argument from Legal Times is headlined "Supreme Court Looks at Humaneness of Lethal Injections."  Similarly, Nina Totenberg's story at NPR is titled "Supreme Court Weighs Pain of Deadly Injection."  Additional strong coverage of the Hill argument comes from Charles Lane at the Washington Post and Linda Greenhouse at the New York Times.  The NY Times piece makes this astute observation:

Although the question before the court was the procedural one of how a challenge to lethal injection can be raised by a death row inmate who has exhausted the normal course of appeals, the intense argument showed that it was not easy to separate procedure from substance, at least with phrases like "excruciating pain" hanging in the courtroom air.

Adding an interesting bit of post-argument drama is on-going lethal injection litigation now coming to the Supreme Court from Virginia.  Virginia is scheduled to conduct an execution on Thursday evening at 9pm in a case that has also placed another spotlight on capital clemency (details here and here).

UPDATE:  How APpealling has collected lots of additional coverage of the Hill argument here.

April 27, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

The Booker horror picture show

Rocky_horror The First Circuit rendered two interesting little Booker opinions on Wednesday in US v. Jones, No. 05-1541 (1st Cir. Apr. 26, 2006) (available here) and US v. Lizardo, No. 04-1714 (1st Cir. Apr. 26, 2006) (available here).  Because they do not break significant new ground, I was not planning on covering these rulings until this summary of Jones at Appellate Law & Practice got my Booker song parody juices flowing again by highlighting that the Jones opinion describes a Booker pipeline case as falling "into a peculiar time warp."

So, with this inspiration, feel free to sing along: 

It's astounding, appeals are fleeting
Booker takes its toll
But follow closely, for whole a lot longer
Circuits will keep control
I remember, doing calculations
Drinking those moments when
Offense levels would hit me, and the grid would be calling
Let's do the guidelines again...
Let's do the guidelines again!
It's just a fake to the left
And then a move to the right
With some help from Breyer
they reign discretion in tight
But it's acquitted conduct, that really drives me insane
Let's do the guidelines again!

April 27, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

April 26, 2006

Thoughtful commentary on Salinas summary reversal

As detailed here and here, Orin Kerr has been doing some commentary — dare I say scholarship — about the Supreme Court's intriguing one-page per curiam summary reversal on Monday in the guidelines sentencing case of Salinas v. United States (noted here).  In the same vein, Peter Goldberger, experienced criminal/appellate practitioner, sent me this thoughtful and extended note about what to make of Salinas:

The per curiam reversal of the 5th Cir in Salinas v US, 547 US -- (No. 05-8400) is illuminating for many reasons.  Salinas was sentenced as a career offender based on two prior robberies.  On appeal the FPD for SDTex argued that the 2 robberies were "related" and so didn't count separately under the career offender guideline. Because this argument had not been made in the district court, the appellant had to show plain error. 

The court of appeals held there was no violation of his substantial rights in any event because he also had a prior drug felony conviction.  The government never made this argument at sentencing or on appeal, and the appellant therefore hadn't addressed it.  The sentencing judge hadn't mentioned it either. (The Fifth Cir went on to make two additional interesting rulings: (1) that there was no plain Booker error, even though the judge expressly said he didn't want to send this defendant to prison, where in any number of other Circuits that would meet the defendant's burden to show plain error; and (2) that a special condition of supervised release that the defendant abstain from all addictive substances was invalid, because it was unreasonable to bar him from smoking cigarettes or drinking coffee during supervision (!).) 142 Fed.Appx. 830 (Aug. 8, 2005).

Salinas petitioned for rehearing, pointing out that his prior drug felony was a simple possession, with no intent to distribute, and therefore didn't fit the definition of a prior "drug trafficking" offense for career offender purposes.  Although he was clearly right, and the court of appeals reaching out with a "bright idea" of its own that was just flat wrong was patently unfair, rehearing was denied. 

Salinas then petitioned for cert on the career offender affirmance, noting that his prior drug felony was for an offense that doesn't count for career offender purposes, as well as raising the circuit split on the standard for plain error under Booker.  In response, the Solicitor General conceded the guideline application error but suggested that cert be denied anyway, relying on the robberies, and saying the plain error split is a short-term problem of diminishing importance.

Notably, the Supreme Court accepted the SG's concession of error but rejected the suggestion that cert be denied, granted the writ and summarily reversed and remanded to the Fifth Cir for further proceedings.  There are several interesting points here.

First, this is what I call a "lightening strikes" decision from the Court -- the kind that encourages me to file a cert petition whenever I think a clear error has been made on appeal in a client's case, even if not evidently "cert-worthy."  You just never know which of the hundreds if not thousands of cases with clear errors the Supreme Court will decide to reach out and fix.  If Salinas, why not my case? Why not yours?  If you don't file a petition, they can't grant your petition. 

And it's noteworthy that the Court took care, in this "little" public defender case from Texas, seemingly involving a drug-abusing robber, to look past the SG's attempt to sweep a small injustice under the rug, and instead to slap down the Fifth Circuit for its unfair and unlawful decision, and send it back to be done right.  (It seems to get more "airplay" when the Court does this to the supposedly "liberal" Ninth Circuit than to the arch-conservative Fifth.)  Shame on the Solicitor General for not recommending a GVR. And shame on the Fifth Circuit for disrespecting the adversary system and thinking they had caught an issue the parties (and lower court) had all missed, and then ruling on that basis without even soliciting the parties' views.

Kudos to the Supreme Court for caring to get it right, yet shame on them, too, for continuing to allow the Booker plain error issue to fester.  It's not going away; there are plenty of cases where defense counsel continue to fail to make appropriate objections to "presumptions of reasonableness" and the like, and continue to focus on the guidelines instead of the other 3553(a) factors, asking instead for a "departure," thereby undermining their clients' chances on appeal. Congrats are due to appellate AFPD's Tim Crooks and Phil Gallagher for fighting for their client to the end.

April 26, 2006 in Who Sentences? | Permalink | Comments (4) | TrackBack

Reports on Hill lethal injection argument

In pre-argument posts here and here, I pondered whether at oral argument today in the Hill case the Justices would frame the issue as a narrow one concerning litigation procedures or as a broad one concerning lethal injection's basic constitutionality.  Early reports on the argument from the AP and Reuters and the Miami Herald suggest that the lethal injection protocols and their constitutionality was robustly discussed.  The AP headline is "Justices Debate Lethal Injection Method" and the Reuters headline is "US justices query if lethal injections cause pain."  Hmmmm....

April 26, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

California's sentencing and parole problems

A reader thoughtfully pointed me to this recent commentary from the Los Angeles Times by Professors Joan Petersilia and Robert Weisberg entitled "Parole in California: It's a crime."   Here are a few snippets from an interesting read:

California's prison system is reeling. The corrections chief and his acting replacement have both quit in the last two months . But a major cause of the Department of Corrections and Rehabilitation's growing dysfunctionality has nothing to do with how it runs its prisons and administers parole.  Rather, it's the state's laws that determine the lengths of prison terms and inmate-release policies....

[M]any dangerous prisoners on parole receive too little monitoring, are released from parole too early and commit serious new crimes, while many non-dangerous ex-convicts stay on parole too long, wasting the state's resources, and are sent back to prison for trivial reasons.

There are three main reasons for California's high recidivism rate: illconceived sentencing laws, rigid parole practices and an inexcusable neglect of programs to help prisoners adapt to life on the outside....

Given the inefficiencies of how we sentence and imprison our criminals, the wonder is that our inmate population and prison costs aren't greater.  But there's no denying that our high recidivism rate wastes human opportunity and disrupts family life in unquantifiable ways.  New leadership at the Department of Corrections and Rehabilitation will help some.  Reforming the state's determinate sentencing law will do even more.

April 26, 2006 in Criminal Sentences Alternatives | Permalink | Comments (2) | TrackBack

Classic reasonableness pair from the Circuits

With the Supreme Court keeping me busy lately (basics here and here and here), I have not had much time to focus on the continuing stream of Booker and guidelines rulings from the circuit courts.  Moreover, lately there have not been many notable rulings (as there were earlier in April from the 1st, 2d, 4th, 7th and 9th).  But today I see two interesting examples of reasonableness review that seem worth a quick mention.

In both US v. Cadenas, No. 05-1450 (8th Cir. Apr. 26, 2006) (available here) and US v. Thomas, No. 05-14151 (11th Cir. Apr. 26, 2006) (available here), defendants present some viable facts and arguments in support of their claims that a within-guideline sentence was unreasonable.  And in both cases, the panel rejects these claims fairly readily by suggesting that the defendants' claims might have justified a lower sentence, but do not support a finding that the district court's decision to impose a within-guideline sentence was unreasonable.

Taking stock, a full 15+ months since Booker, there have been roughly 50,000 within-guideline sentences imposed, and only one within-guideline sentences has been found unreasonable on appeal (though, of course, probably no more than a (few?) thousand of these within-guideline sentences have been formally reviewed on appeal).

April 26, 2006 in Booker in the Circuits | Permalink | Comments (3) | TrackBack

Two interesting and intricate Ninth Circuit rulings

Though not dealing directly with sentencing issues, two criminal law decisions today from the Ninth Circuit caught my eye. Folks interested in a range of federal criminal justice issues may want to check out US v. Arreola, No. 04-10504 (9th Cir. Apr. 26, 2006) (available here) (discussing whether the language of 924(c)(1)(A) "defines two offenses or two means of committing a single offense"), and US v. Rosenthal, No. 03-10307 (9th Cir. Apr. 26, 2006) (available here) (discussing various issues in the course of reversing a conviction based on juror misconduct in a medical marijuana prosecution from California).

April 26, 2006 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

SCOTUS to enter lethal injection scrummages today

As briefly noted in this post, the Supreme Court hears oral argument today in the lethal injection case of Hill v. McDonough (some background here and here).  As I explained here right after the cert grant, the narrow procedural issue in Hill arguably is not that important (especially if a majority of the Court is prepared to declare most lethal injection protocols constitutional).  But because the Hill cert. grant has already had a ripple effect on lethal injection litigation throughout the country, the stakes in Hill have practically become much higher no matter how the Court decides to approach this case.

The folks at SCOTUSblog have a nice review of the legal issues in Hill, and TalkLeft provides here another blog perspective.  In addition, the media is all over this case with coverage from the Washington Post, AP, Knight Ridder, USAToday, the Christian Science Monitor and many others.  The New York Times adds this editorial entitled "Lethal Cruelty."

I have been following this issue closely, in part because I see Hill and its remarkable aftermath (halted executions in some states but not in others) as exhibit A in the dysfunctionality of litigation over capital punishment.  Here's just an abridged list of recent posts on this topic (from earliest to most recent):



April 26, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Lots of good (non-Booker) reading

Earlier this week, I noted my article "Tweaking Booker" and Judge McConnell's article "The Booker Mess."  But if you are not in a Booker mood, there's plenty of other interesting reading now on-line:

1.  The latest issue of the Ohio State Journal of Criminal Law, which includes a wonderful symposium on juvenile brain development and criminal justice and commentaries on a range of topics, is now fully available on-line here.

2.  As I have noted before, all the papers authored for the up-coming Harvard Law School conference on blogs and legal scholarship — entitled "Bloggership: How Blogs Are Transforming Legal Scholarship"  — can now be accessed at this special SSRN page.

3.  Speaking of SSRN, these recently-posted sentencing papers caught my eye:

April 26, 2006 in Recommended reading | Permalink | Comments (0) | TrackBack

Commentary on the "good-time" cert. denial

As briefly noted in this post, on Monday the Supreme Court denied cert in two cases concerning the calculation of good-time credits for prisoners serving federal sentences.  A thoughtful reader sent me these follow-up thoughts to ensure the issue, and Justice Stevens' interesting comments on the issue, gets appropriate attention:

Justice Stevens issued this unusual statement "respecting the denial of the petitions for certiorari" in Moreland v. Bureau of Prisons, 05-8262 and O'Donald v. Johns, 95-8504. These cases raised the question whether the Bureau of Prisons has been misinterpreting 18 U.S.C. § 3624(b), the federal good time statute by reading the statutory allotment of 54 days' credit for each year of the "term of imprisonment" to mean 54 days for each year actually served, rather than for each year of the sentence imposed.  Justice Stevens indicated his own view that the district court in Moreland, later overturned by the Fifth Circuit, had demonstrated that the text and history of the statute strongly suggested that it had not been intended to alter the long-standing approach of basing sentencing credits on the "sentence imposed" as the petitioners contended.

Justice Stevens' statement is interesting in more respects than its brevity might suggest. First, it is the second example in the same day, along with the Court's summary reversal of a pure Guidelines issue in Salinas, of the Court's interest in a non-death penalty sentencing issue.  Second, although the issue involves a difference of only about seven days a year incarceration for eligible prisoners, Justice Stevens noted its "great importance" and its "significant impact on the public fisc," given the number of prisoners (about 170,000) eligible for the credit. Third, however, the statement reconfirms that absent a classic circuit split (or a confession of error by the SG as in Salinas), even an issue of clear, nationwide significance is a hard sell on certiorari.

Given the absence of a circuit split, however, Justice Stevens’ statement is perhaps most interesting for its suggestion that the question "merit[s] further study," either by "judges" or by "other Government officials" or by Congress, as well as by its pointed reminder that the cert. denials were not rulings on the merits and "certainly" did not express any opinion of the "wisdom" of the Government's position.  These observations seem a pointed indication that, in the Justice's view at least, the question is not finally resolved and may well be subject to reconsideration in judicial, administrative or Congressional forums.

April 26, 2006 in Who Sentences? | Permalink | Comments (1) | TrackBack

April 25, 2006

Reports on Marsh re-argument

As discussed recently in this post, the Supreme Court this afternoon heard re-argument in the capital case of Kansas v. Marsh (some background here and here and here).  According to this early press report, it was a "deja-vu" experience with a twist:

The high court first heard the case last December, when Sandra Day O'Connor was still on the bench. Last month, the court asked for re-arguments, an unusual step that indicated to some court observers that the court was deadlocked 4-4, and that the newest justice, Samuel Alito, could be the tiebreaker.

Even though the arguments were essentially the same as they were four months ago, several justices seemed engaged by the debate.  Seatmates David Souter and Antonin Scalia took several minutes to essentially argue with each other through aggressive questioning of [the Kansas AG].... Later at a press conference on the court’s front steps, Kline joked about the Scalia-Souter interchange: "I almost sat down."

Alito, who could be the swing vote, was quiet through much of the argument, his elbow propped on the dais and his hand on his chin as he listened to his colleagues question [the counsel for the parties].

I assume the description here of Justices David Souter and Antonin Scalia as "seatmates" is a reference to them sitting near one another, not an indication that they decided to share a single seat for this re-argument.  (Though perhaps one of their chairs was taken out to be cleaned before anyone remembered that a re-argument had been scheduled for this afternoon.)

UPDATE: Here is an AP report on the Marsh arguments today.  And now also this CNN account.

MORE: Dahlia Lithwick has this great Marsh argument review at Slate.

STILL MORE:  How Appealing has assembled local coverage of the Marsh argument here.

April 25, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack