April 25, 2006
Notable split habeas ruling from SCOTUS
As reported here by SCOTUSblog, this morning the Supreme Court, dividing 5-4 in Day v. McDonough (04-1324), ruled "that federal trial judges have discretion to dismiss a prisoner's habeas petition as too late, even though a state had conceded erroneously that the petition had been filed on time. The Court, in an opinion by Justice Ruth Bader Ginsburg, said the Court would not choose an inflexible rule that dismissal would be required whenever the one-year filing deadline had expired."
I may not get a chance to weigh in on the merits of this ruling for a while, but here I must note that the supposed new harmony/consensus exhibited by the Roberts Court in other areas has not generally extended to cases involving criminal justice issues. I think most (all?) of the 5-4 votes have come in criminal justice cases this Term, and all three cases ordered to be re-argued involve criminal justice or related issues.
Justice Ruth Bader Ginsburg delivered the opinion of the Court in Day v. McDonough, No. 04-1324. This is the first 5-4 decision of the newly constituted Court, and the line-up of the Justices is rather interesting. Joining in Justice Ginsburg's majority opinion were the Chief Justice, and Justices Anthony M. Kennedy, David H. Souter, and Alito. Justice John Paul Stevens issued a dissenting opinion, in which Justice Stephen G. Breyer joined. And Justice Antonin Scalia issued a dissenting opinion, in which Justices Clarence Thomas and Breyer joined.
Pondering the "Booker boomerang"
I recently received news from a federal defense attorney reporting on a drug case in which a higher sentence was imposed on his client after a Booker remand. In his words, "Booker seems to be having a big negative boomerang effect on defendants fortunate enough to get the Booker remand."
More evidence of this phenomenon comes from this notable article about a Booker resentencing in a high-profile corporate fraud case: "Former Westar Energy executive David Wittig was resentenced Monday to 60 months in prison in a 2003 bank fraud case, nine months more than his original sentence in the matter." (As explained in the article and posts here and here, Westar executives have made a lot of sentencing news.)
These reports have me wondering yet again about whether the US Sentencing Commission is trying to track and assess all the Booker pipeline cases as they slowly work through the system. Notably, Judge McConnell's recent Booker article (discussed here) has some fascinating statistics about Booker pipeline cases in the Tenth Circuit, and I sincerely hope folks at the USSC and elsewhere are trying to assemble and analyze this data throughout the nation.
I question whether there truly has been a "big negative boomerang effect on defendants" nationwide from Booker remands, though maybe this is true for certain types of cases or in certain regions (especially since the plain-error remand rules varied from circuit to circuit). Of course, these issues are not only important on their own terms, but they can inform what we should expect if any other big sentencing changes from Congress or the Supreme Court create another set of sentencing pipeline problems.
Around the blogosphere
A diverse array of items caught my eye this morning in a quick jaunt around the blogosphere:
- At ACSBlog, Alex has this thoughtful post suggesting reasons why SL&P is "cited far more frequently in court opinions than any other legal blog." I think the analysis is spot-on, though it fails to mention that I have the best and coolest readership (which I am always eager to compliment).
- At Capital Defense Weekly, Karl Keys notes here that this week is National Crime Victims' Rights Week, and he points to a joint statement that has victims speaking out against the death penalty.
- At Judging Crimes, Joel Jacobsen has this post noting the impact of the Supreme Court on state criminal prosecution and lamenting that "the justices don't know much about criminal law, and even less about its day-to-day practice." He concludes that "it's almost - almost! - unfair to criticize the justices for screwing up the criminal law."
- Orin Kerr has this thoughtful discussion of the Supreme Court's (very) little reversal in the Salinas guideline case (previously discussed here).
- Both Grits for Breakfast and TalkLeft comment on the remarkable disparity in two Texas sentencing cases detailed in a recent Dallas Morning News article (discussed here).
Pre-sentencing skirmish in Connecticut
This news story from Connecticut reports on an interesting skirmish between defense counsel and federal prosecutors in the run up to a high-profile fraud sentencing scheduled for this week:
Lawyers for former construction executive William A. Tomasso accused the U.S. attorney's office Monday of unnecessarily making public disputed evidence in an effort to pressure a judge to impose harsh sentences on two key figures in the Rowland administration bid-rigging case. The last-minute legal papers filed Monday afternoon by Tomasso lawyers Thomas J. Murphy and James T. Cowdery are critical of tactics used by federal prosecutors in the days leading to today's scheduled sentencing of Tomasso and Peter N. Ellef, former Gov. John G. Rowland's co-chief of staff, for bribery and tax fraud.
UPDATE: This AP story now tells the rest of the story:
A federal judge has sentenced a former top aide to Governor Rowland and a contractor who bribed him to two and a-half years in prison for corruption.... Judge Peter Dorsey gave credit to Ellef for his military service and civic works. But he also said he must impose a sentence that makes it clear that people in power have to be totally honest when acting for the community. Tomasso was sentenced early this afternoon and was given the exact same sentence [as] Ellef, [includings] three years probation and a $15,000 fine.
April 24, 2006
Full draft of Tweaking Booker
The terrific editors of the Houston Law Review have just sent me a clean copy of the latest proofs of my article on post-Booker federal sentencing entitled "Tweaking Booker: Advisory Guidelines in the Federal System." The piece, which can be downloaded below, perhaps serves as a fitting companion to Judge McConnell's recent article "The Booker Mess" (discussed here) for anyone trying to get up-to-speed on the post-Booker federal sentencing world. Here is a snippet from my introduction:
If writing on a blank slate, few would likely advocate the precise sentencing system resulting from the Supreme Court's decision in Booker. Nevertheless, in this Article, I contend that policymakers should consider playing the peculiar Booker hand that the Court has dealt for federal sentencing. Especially because any significant alteration of the structure of federal sentencing remains legally treacherous and fraught with uncertainty, Congress and the U.S. Sentencing Commission should focus their efforts and energies on improving the advisory guideline system that Booker has produced. I suggest that, though the sentencing scheme created by Booker is far from perfect, a program of modulated incremental changes is likely to provide the soundest course for the post-Booker development of the federal sentencing system.
Fourth Circuit on reasonableness review and fast-track
The Fourth Circuit today in US v. Montes-Pineda, No. 054471 (4th Cir. Apr. 24, 2006) (available here), explains in some detail why it has jurisdiction over appeals by defendants of sentences imposed after Booker that are within a properly-calculated guideline range. This is in line with every other circuit to consider the issues, and it also continue the appellate harmony by once affirming a within-guideline sentence as reasonable.
Along the way, the panel in Montes-Pineda not only discusses reasonableness review, but also speaks to "fast-track" disparity. Interestingly, the panel asserts flatly that the defendant "has convincingly demonstrated that significant sentencing disparities exist between 'fast track' and non-'fast track' districts." But the panel then explain that this showing does not itself make the defendant's within-guideline sentence unreasonable.
The Ninth Circuit on supervised release and Blakey-Booker
The Ninth Circuit today gives some extended treatment to the relationship between supervised release and the Blakely line of cases in US v. Huerta-Pimentel, No. 04-50037 (9th Cir. Apr. 24, 2006) (available here). Here are the basics:
We conclude § 3583 supervised release is constitutional under Apprendi, Blakely, and Booker. Because supervised release is imposed as part of the sentence authorized by the fact of conviction and requires no judicial fact-finding, it does not violate the Sixth Amendment principles recognized by Apprendi and Blakely. For the same reasons, a district court's decision to revoke supervised release and impose associated penalties is also constitutional. Additionally, because the revocation of supervised release and imposition of an additional term of imprisonment is discretionary, neither violates Booker. Accordingly, we affirm.
Two significant Blakely rulings from Colorado
Thanks to a helpful reader tip, I learned that today the Colorado Supreme Court issued two significant Blakely ruling dealing with (1) the prior conviction exception, and (2) proper Blakely admissions. Here are the basics:
- People v. Huber, No. 05SC40 (Colo. Apr. 24, 2006) (available here) ("Trial court did not violate Defendant's Blakely rights by sentencing him in the aggravated range based on prior conviction facts.")
- People v. Isaacks, No. 05SC87 (Colo. Apr. 24, 2006) (available here) ("The Supreme Court affirms the court of appeals, holding that a defendant's failure to make corrections or additions to his presentence report when asked by the court does not constitute an admission that supports aggravated sentencing under Blakely and Lopez unless the defendant knowingly, voluntarily, and intelligently waives his right to jury trial on the facts contained in the presentence report.")
Judge McConnell on "The Booker Mess"
Thanks to a tip from a helpful reader, I see here that Tenth Circuit Judge Michael W. McConnell has authored the Foreword to the latest issue of the Denver University Law Review on a topic dear to my heart. Judge McConnell's article is entitled "The Booker Mess," and the full cite for the article, is 83 Denv. U. L. Rev. 665 (2006). The article, which is available at this link, discusses the data on post-Booker reversal rates and sentencing trends. After a quote from the Disney movie version of the Pirates of the Caribbean: The Curse of the Black Pearl, the article starts with this paragraph:
Each year, over 65,000 criminal defendants are sentenced in the federal courts; about 1,200 are sentenced each week. Since 1984, Congress has required sentences to be determined according to a strict and detailed set of Sentencing Guidelines. On January 12, 2005, in United States v. Booker, the Supreme Court declared this sentencing system unconstitutional. The Justices left many questions unanswered regarding how the lower courts should treat defendants sentenced under the prior regime and how to sentence defendants in the future. These issues occupied much of the attention of federal courts during 2005. The Tenth Circuit alone rendered two en banc decisions and some 226 panel decisions (as of this writing), addressing how to deal with defendants who were sentenced before Booker was decided. Nationwide, this retrospective question produced a four-way circuit split and literally thousands of panel decisions. And it will require many more decisions to figure out how to apply Booker moving forward.
And Judge McConnell's article closes with these sentiments:
I am inclined to think that a modest increase in the discretion of district judges, exercised judiciously, could enhance justice. In this sense, I welcome the Booker result, even though I cannot endorse its reasoning. But it was more important to take a serious look at the statutes governing sentencing. This is a matter for Congress. I fear that Booker, by putting forward an extravagant claim of constitutional principles coupled with an anemic and self-contradictory remedy, may have set back the cause of reform, to relatively little purpose.
Interesting sentencing start to an interesting SCOTUS week
Though a big death penalty week is on tap for the Supreme Court (details here), today SCOTUS got the week started with these interesting non-capital sentencing developments:
1. The Recuenco dog did not DIG bark: After a seemingly off-topic and unexciting oral argument in Washington v. Recuenco last week, there was added speculation that the Supreme Court might DIG the case (meaning Dismiss cert as Improvidently Granted). But this report from SCOTUSblog on today's work by the High Court makes no mention of any DIG.
2. No cert grants on interesting sentencing issues: As also reported by SCOTUSblog, the Court "turned aside an appeal by the state of Minnesota, seeking to test whether the Court's 2004 decision in Blakely v. Washington restricts judges' power to impose longer criminal sentences based on judge-made findings of fact about the crime, but not facts about the perpetrator." This case was Minnesota v. Allen, which I covered a lot here and here. Also, according to SCOTUSblog, the Court "declined to hear two appeals on an issue involving the basis for calculating good-time credits for prisoners serving federal sentences," although "Justice John Paul Stevens filed an opinion discussing the issue" in Moreland v. Federal BOP (available here). I'll discuss this matter more once I see the Stevens opinion.
3. A (pro-defendant) summary reversal on a guideline drug sentencing issue: As also reported by SCOTUSblog, the Court in Salinas v. US, No. 05-8400 (S. Ct. Apr. 24, 2006) (available here), "ordered the Fifth Circuit Court to take a new look at a case on simple possession of an illegal drug," although this followed the Solicitor General conceding that the Fifth Circuit had erred in determining what is a "controlled substance offense" for purposes of the Sentencing Guidelines. I'll also comment more on this ruling once I see a copy of the Court's opinion.
UPDATE: There is not much there there in either the one-page Salinas runing or in the two-page Moreland statement by Justice Stevens, although that Justice Stevens does shine light on the importance of the good-time credit issue.
Human Rights Watch issues report on lethal injection
Just in time for a big Supreme Court death penalty week (details here), the public policy group Human Rights Watch has released a 65-page report, entitled "So Long as They Die: Lethal Injections in the United States." HRW has this press release about the report, which declares that "incompetence, negligence, and irresponsibility by U.S. states put condemned prisoners at needless risk of excruciating pain during lethal injection executions." The full report is available here, and related work by HRW on the death penalty can be found on this page.
As I have bemoaned here and here, everyone loves to focus on the death penalty, and thus the HRW report has already received coverage from Reuters and the Los Angeles Times. The LA Times article is particularly thoughtful; it places the HRW report in the context of all the recent lethal injection litigation.
Some recent related posts:
April 23, 2006
A capital week for SCOTUS arguments
I noted here last week that the last set of Supreme Court oral arguments this Term included a number of criminal justice issues. And though last week's argument in Washington v. Recuenco were perhaps unexciting and received no press coverage, this coming week should keep sentencing fans satiated.
Specifically, on tap for this week 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). Both should be quite interesting for different reasons.
Though I am not a SCOTUS guru, I assume most re-arguments have advocacy styled for the new voter, which is of course Justice Alito. Since his Third Circuit track record suggests Justice Alito is generally a pro-death-penalty vote, I am eager to see how the state and the defense in Marsh approach re-argument in the case.
The story in Hill concerns whether at argument the case will be framed as a narrow one concerning litigation procedures or a broad one concerning lethal injection's basic constitutionality. As I explained here right after the cert grant, the narrow procedural issue in Hill seems relatively trivial if a majority of the Court views most lethal injection protocols as constitutional. But, perhaps we will learn at oral argument that some members of the Court view the stakes in Hill to be much higher.
More background on Hill and the stakes involved can be found in this AP story and this local news account. And, to add an extra bit of intrigue, this article details that Virginia is scheduled to execute an inmate by lethal injection the day after Hill is argued.
UPDATE: The Christian Science Monitor has this nice review of the Marsh case, which spotlights that the "rescheduling of the case suggests that the justices were sharply divided over the issue and that Justice Alito may be in a position to cast the deciding vote." And local press coverage of Marsh can be found here and here.
The relatively small (and large) cost of federal prisons
With thanks to Paul Caron for the tip, I checked out the interesting web site, Where Are My Taxes, where you can enter an amount paid in federal taxes and see where tax dollars go among dozens of federal agencies, departments, and programs.
The first thing you discover is that the bulk of federal tax dollars go to the Department of Defense, the Department of Health and Human Services, the Department of the Treasury, and the Social Security Administration. Each of these departments receive at least 100 times more federal tax dollars than the entire (huge) federal prison system. These data highlight why prison cost concerns will never impact the federal criminal justice system (as it does in the states as recently documented here and here).
But perhaps equally interesting and telling is relative criminal justice spending in the federal system. According to the site, the federal government spends more than five times as much on prisons as it spends on a crime victims fund, and nearly 10 times as much on prisons as it spends on juvenile justice programs and violence against women prevention. Our tax dollars at work.
Interesting SSRN case-study on quantity and quality
I am having a grand time this weekend reading the papers for this conference at Harvard Law School on blogs and legal scholarship, which can be accessed at this special SSRN page. Anyone interested in the activities of law professors or the medium of blogging will find lots of food for thought in the papers.
But one can also find food for thought on this special SSRN page without downloading any papers. A quick scan of the page (as of mid-day Sunday, April 23, 2006) shows remarkable differences in the number of downloads for posted drafts. The paper by Glenn Reynolds already has nearly 300 downloads and Ann Althouse's paper has over 100, while most other papers have between 20 and 50 downloads. Also Orin Kerr's paper, which was posted well before everyone else's, right now has 161 downloads. Eugene Volokh's paper, which was the last to be posted, right now has only 18.
I spotlight these realities not only to establish an interesting data point for future comparisons, but also because I am concerned by a recent movement to focus on the quantity of SSRN downloads as a possible measure of a paper's quality. With all due respect to Glenn and Ann and Orin, I do not think their papers are so obviously far superior than all the other contributions. But, based on download numbers right now, Orin's work exceeds the work of his co-blogger Eugene by nearly a magnitude of 10.
Compelling story about state sentencing inequality
The Dallas Morning News today has this interesting piece entitled "Unequal Justice: Two very different men commit two very different crimes. When both violate probation, there are wildly different results: The robber gets life; the killer remains free." The article provides an in-depth account about how two offenders have been treated in Texas' criminal punishment system. One quote in the article sums up my reaction: "This certainly undermines one's confidence in the judicial system around here," said Rick Jordan.
The links between sentencing and plea/trial rates
This interesting news story from upstate New York concerning an upcoming federal trial on child pornography charges highlights the links between sentencing issues and trial/plea practices. Though the article is mostly about the prosecution of child pornography cases, it also provide a window into sentencing and trial/plea issues:
Federal judges in Rochester say they've never had a child porn case go to trial in the past 20-plus years. Authorities say they expect to see more in the future because of the spread of child pornography over the Internet and because moves to toughen sentences for the crime may discourage defendants from taking a plea....
Court records show that [the defendant] was offered plea bargains — the typical resolution to child pornography charges — but he insisted that he be tried instead....
Federal authorities say recent congressional moves to stiffen sentences for child pornography may prompt more defendants to choose trials. In 2003, for instance, Congress passed the Protect Act, designed to strengthen the protection of children and to toughen the punishment for those who molest children or view child pornography.
"There's not much of an advantage to pleading guilty these days because the (sentencing) guidelines are so high," said Albany-based Assistant U.S. Attorney Thomas Spina. He said he has prosecuted federal child pornography cases for 15 years and has never had one go to trial.