May 5, 2006
Weekend reading (as I head back to off-line land)
After an amazingly stimulating day with Judge Nancy Gertner and her amazingly stimulating students in her Yale Law School sentencing class, I am heading back to off-line land until probably late Sunday. Fortunately, the circuit courts and others have allowed me to leave behind a lot of weekend sentencing reading (since my last re-cap) for those who can be on-line:
- Moussaoui, procedural justice, and jury sentencing involvement
- On the realities and respect for juries
- Second Circuit rules on felon disenfranchisement
- Contrasting posthumous pardon stories
- SCOTUS argument transcript for Recuenco
- Getting excited for Cunningham
- Some 2004 nostalgia from the USSC
- Judge Presnell on fast-track disparity (again)
- Fascinating Ninth Circuit discussion of sentencing councils
- Eleventh Circuit reverses extraordinary substantial assistance departure
- SSRN version of Tweaking Booker
Getting excited for Cunningham
Though I've not discussed the case in a while, it will soon be time to start getting excited about the Supreme Court's consideration of Cunningham, the California Blakely case. Though Cunnigham won't be argued until the Fall, I believe some of the briefs are due later this month. And, to help gear up for Cunningham mania, Michael O'Hear has written a great little treatment of the case fittingly entitled "Cunningham: The Supreme Court's Next Sentencing Blockbuster?"
Michael has graciously allowed me to post his work, which is available for download below (along with links to prior Cunningham coverage). Among many trenchant observations, Michael makes this point about how Cunningham could impact the Booker fix debate:
Cunningham may effectively impose new constraints on legislative responses to Booker, or, alternatively, point the way for Congress to reinstitute more mandatory guidelines in a constitutional fashion. Most obviously, the central question posed by Cunningham is how discretionary a "discretionary" system needs to be in order to avoid Apprendi problems. In its discussion of this question, the Court may further delineate some of the constitutional parameters within which legislative reformers will have to operate.
Recent related posts:
SCOTUS argument transcript for Recuenco
The last person closely watching the Supreme Court doings in the Blakely error case of Washington v. Recuenco (No. 05-83) was kind enough to let me know that the transcript from last month's oral argument is now available at this link. I fear I may not get a chance to read and comment on this transcript anytime soon, but readers are encourage to compare the actual argument transcript to my coverage in prior posts linked below:
Recent related Recuenco coverage:
- Recuenco oral argument report
- If a Blakely case is argued in the woods...
- Recuenco basics
- Why Recuenco is a big little Blakely case
- O Recuenco, Recuenco, wherefore art thou granted Recuenco?
- Recuenco post archive
SSRN version of Tweaking Booker
I will use other bloggers' interesting discussion of SSRN realities here and here as an excuse to highlight that my "Booker fix" paper, Tweaking Booker: Advisory Guidelines in the Federal System (noted before here) can now be accessed via SSRN from this web page. Interestingly, the e-mail I got from SSRN encouraged me to link to my SSRN Author Home Page. Mission accomplished.
Eleventh Circuit reverses extraordinary substantial assistance departure
The Eleventh Circuit today in US v. McVay, No. 05-13345 (11th Cir. 2006) (available here), reversed a sentence (in a high-profile white-collar case) for too great a downward departure based on substantial assistance. Here is the start of the opinion:
The United States appeals from a sentence of 60 months' probation imposed by the district court on Malcolm E. McVay, the former Chief Financial Officer, Senior Vice-President, and Treasurer of HealthSouth Corporation ("HealthSouth"). McVay pled guilty to conspiracy to commit wire and securities fraud that resulted in losses of some $400 million, and to false certification of financial information filed with the Securities and Exchange Commission ("SEC"). On appeal, the government argues that the trial court erred by downwardly departing so drastically from the Sentencing Guidelines range -- from an offense level 29 to an offense level 8 -- based on the government’s substantial assistance motion, filed pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. This 21-level departure resulted in an adjustment from a Guidelines sentencing range of 87 to 108 months' imprisonment to a sentencing range of 0 to 6 months' imprisonment. The government says that this extraordinary downward departure was unwarranted as a substantial-assistance adjustment.
After careful review of the record and the parties' briefs and oral arguments, we conclude the district court reversibly erred by downwardly departing so sharply, based on substantial assistance, virtually without explanation, and on a wholly improper basis. Accordingly, we vacate McVay's sentence and remand for resentencing consistent with this opinion.
Fascinating Ninth Circuit discussion of sentencing councils
The Ninth Circuit today in US v. Brigham, No. 03-30381 (9th Cir. May 5, 2006) (available here) has a fascinating discussion of whether the district judge committed error by being involved in a sentencing council that had discussed the defendant's case before sentencing. Here are some key highlights:
Oregon has a procedure — unusual to us but evidently long established there — of regular sentencing council meetings for the district judges. According to a 1981 Federal Judicial Center study, sentencing councils of this sort were a reform implemented in four districts, intended to reduce sentencing disparity in that pre-guidelines period. But the study’s findings showed that the councils increased disparity in about as many categories as they reduced it, and mostly did not affect disparity at all.
Evidently sentencing councils are still used, or at least were when Brigham was sentenced. They were no secret. At Brigham’s sentencing hearing, the judge referred to the discussions that he had participated in regarding Brigham’s case at the sentencing council.... On appeal, Brigham argues that the sentencing council is a prohibited ex parte communication and that its use amounts to plain error....
None of the cases we have been directed to suggests that using a sentencing council like the one used in this case is error. Because the error in using the Oregon sentencing council was not "plain," we do not have occasion in this case to decide whether it was error at all. This is where we part ways with Judge Ferguson's concurrence. We do not hold that the Oregon sentencing council procedure is error, and we do not hold that it is not error. We only hold that it is not "plain" error.
Here is what Judge Ferguson had to say at the start of his concurrence:
I concur in the majority’s remand in light of United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). I write separately, however, to disagree with the majority's acceptance of the use of a sentencing council in determining Brigham's sentence. Brigham entered into a plea agreement with the Government for a sentence of twenty-four months. After meeting with a sentencing council, the District Judge increased Brigham’s sentence to thirty-seven months. Neither Brigham nor the public will ever know what impact the council had on Brigham's increased sentence because neither party in the case was allowed to attend the sentencing council meeting, and a record of the exchange was not disclosed. Brigham's mere knowledge that a sentencing council was used in his case does not remedy this harm.
Judge Presnell on fast-track disparity (again)
The always notable District Judge Gregory Presnell, who long-ago secured a place in my Sentencing Hall of Fame, has spoken through again to fast-track disparity in US v. Miranda-Garcia, No. 05-cr-202 (M.D. Fla. May 4, 2006) (available for download below). Judge Presnell's previous work in this area in a case called Delgado is discussed in this post. Here is a portion of his latest work in Miranda-Garcia (though the whole opinion is a must-read):
[T]he existence of fast-track programs in some but not all areas of the country creates a situation where defendants guilty of identical offenses and with identical histories and characteristics receive significantly different sentences depending upon whether they are sentenced in a fast-track jurisdiction or not. 18 U.S.C. § 3553(a)(6) specifically instructs the Court to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Many judges dealing with this issue post-Booker (including other judges in this district) have concluded that the fast-track disparity is unwarranted. As one such judge put it, "it is difficult to imagine a sentencing disparity less warranted than one which depends upon the accident of the judicial district in which the defendant happens to be arrested." United States v. Bonnet-Grullon, 53 F.Supp.2d 430, 435 (S.D.N.Y. 1999). This Court agrees.
The consequences of this disparity are not simply academic or de minimis. According to a recent report from the USSC, the 13 districts with fast-track programs for illegal reentry cases 5 include several with far fewer immigration cases than the Middle District of Florida (e.g., Idaho, Nebraska and North Dakota). Booker Report at E-25. As of March 16, 2006, 28 percent of all post-Booker illegal reentry defendants nationwide received government-sponsored fast-track credit (and a corresponding below-guideline sentence). United States Sentencing Commission, Special Post-Booker Coding Project (March 2006) at 2. Obviously, there were no fast-track departures in this District. This is a huge disparity based solely on the happenstance of a defendant’s location at the time of his or her arrest.
On the realities and respect for juries
I commented at length here about the procedural dynamics in the Moussaoui capital trial. Today Adam Liptak has this interesting piece in the New York Times, which reflects more broadly on the work of juries in federal capital cases. Here's a snippet:
[T]he [Moussaoui] case ultimately followed the pattern of most federal capital cases, which usually involve less spectacular crimes and more rational defendants. In those cases, too, juries are reluctant to impose death sentences. In the 136 capital cases the federal government has brought in the last two decades, 122 convictions have been obtained, according to the Federal Death Penalty Resource Counsel Project, a group that assists lawyers defending federal capital cases. But the juries in those cases imposed death sentences only 49 times.
And the article closes with another reminder that, though many folks make a habit of attacking the work of judges, everyone seems incline to express respect for the work of juries:
Mary Jo White, who co-signed the Moussaoui indictment as United States attorney in Manhattan, said she was disappointed in the jurors' actions but "totally respectful" of them. Ms. White added that the jury had shown the justice system in a positive light. "It sends a very helpful message to the rest of the world about the American judicial system," Ms. White said. "Fairness is paramount. It shows that in a highly charged case such as this, an American jury could reach this verdict."
May 4, 2006
Some 2004 nostalga from the USSC
Remember way back when the Red Sox broke an epic curse, we laughed about Howard Dean's scream, and the guidelines were mandatory? Well, if you want to re-live those crazy times of 2004, the US Sentencing Commission is ready to help. Now just available on the Commission's website is the USSC's "2004 Annual Report and Sourcebook of Federal Sentencing Statistics." Here are the highlights from the USSC:
The 2004 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2004. See the Commission's 2004 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.
When I have more time and energy (and access to a durable printer), I hope to have some comments on what we might still learn from the federal sentencing stories and data from 2004.
Contrasting posthumous pardon stories
No matter what one thinks about posthumous pardons, the contrasting pardon stories from Montana and Mississippi in these two articles are fascinating (and perhaps suggests that racial disparity in the justice system never ends):
- From Montana, Pardons Granted 88 Years After Crimes of Sedition
- From Mississippi, Pardon Unlikely for Civil Rights Advocate
Second Circuit rules on felon disenfranchisement
Because I am on the road, I don't know when I'll have time to actually read all 10(!) separate opinions from today's en banc Second Circuit ruling holding that the federal Voting Rights Act does not apply to New York's prisoner disenfranchisement law (available here). But I do have time to link to the coverage of the rulings at these blogs:
For a lot more information on the broader topic of felon disenfranchisement, The Sentencing Project is one great place to go.
Moussaoui, procedural justice, and jury sentencing involvement
Much has and will be said about the outcome in the Moussaoui capital trial: How Appealing has lots of coverage, and SCOTUSblog has this post with great comments, and there is lots at TalkLeft and Capital Defense Weekly. To add my two cents, I view the case as an interesting example of procedural justice and jury involvement in the sentencing process.
Because Zacarias Moussaoui pled guilty to the charges he faced, his entire trial was really just an elaborate sentencing hearing before a jury. His jury trial/sentencing hearing had two parts: (1) a "guilt" phase in which the jury had to decide "factually" whether Moussaoui was eligible for a death sentence; and (2) a "punishment" phase in which the jury had to decide "morally" whether Moussaoui should be sentenced to die. Interestingly, the jury decided that Moussaoui was eligible for a death sentence, but then concluded he should not be sentenced to die.
Whatever one thinks of the final outcome, Moussaoui and the federal government received an extraordinary level of procedural justice in the course of the jury trial/sentencing hearing. Both sides presented a lot of evidence during the guilt phase, and the jury focused first only on whether the offense facts made Moussaoui eligible for higher sentence; then both sides presented different evidence during the punishment phase, and the jury distinctly focused on whether Moussaoui ought to be condemned to die for his offense.
Gurus of the Supreme Court's recent sentencing jurisprudence may realize that Justice Breyer apparently believes that the Eighth Amendment's "cruel and unusual punishment" prohibition means that Moussaoui has a right to a jury at both these phases (and yet he apparently does not think the Sixth Amendment’s jury trial right has any applicability to sentencing determinations). Meanwhile, Justice Scalia (among others?) apparently believes the Sixth Amendment safeguards Moussaoui's right to a jury only for the guilt/eligibility phase. Of course, federal statutory law — which provides for jury involvement in both phases of a capital trial — eliminated any need to sort through these constitutional questions.
I make these observations primarily to express a general disappointment that murderers like Moussaoui get all this procedural justice and so much jury involvement at sentencing, but far less heinous non-capital federal offenders get far less procedural justice and jury involvement. For Freddie Booker and Ducan Fanfan and Jamie Olis and thousands of other federal offenders, a less awful federal crime ultimately means less procedural justice and no rights to jury involvement at sentencing. What a shame that only the worst criminals get the most procedural justice at sentencing.
May 3, 2006
Off to the Northeast again
My ivy-covered magical mystery tour continues as I head out this afternoon for the start of a circuitous trip to participate in Yale Law School's Sentencing Workshop run by Sentencing Hall of Famer Judge Nancy Gertner. Because the trip includes stops at the off-line in-laws, blogging will be light through the weekend. As is my custom, I am leaving behind here a recap of some recent posts of note:
SCOTUS DEVELOPMENTS AND COMMENTARY
- Monday's notable SCOTUS action
- The impact of former prosecutor Alito
- Press coverage of SCOTUS capital action
- Interesting sentencing start to an interesting SCOTUS week
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- How could (and should) Congress clean up the lethal injection mess?
- More lethal injection drama in Ohio
- Moussaoui case provides fascinating glimpse into capital jury realities
- Lethal injection litigation developments
- Amazing capital punishment issue of Judicature
BOOKER DEVELOPMENTS AND COMMENTARY
- Tracking reasonableness review outcomes
- The interplay of mandatory minimums and 3553(a)
- Fourth Circuit discusses admissions and alternative sentence
- Two important reasonableness opinions from the Seventh Circuit
- Eighth Circuit reverses extraordinary upward variance
- Eighth Circuit on state/federal disparity after Booker
- Full draft of Tweaking Booker
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- A thoughtful, but disappointing, attack on a faith-based prison program
- Is a prostitute a victim of her madame?
- The realities of mentally ill prisoners
- Clearing out the Foster pipeline in Ohio
Is blogging about the bluebook scholarship?
But now the question need to be refined to consider whether blogging about the Bluebook is scholarship, because Ilya Somin is doing a fascinating job taking the Bluebook to task in great posts here and here.
Meanwhile, in a fitting ironic twist, blogger Christine Hurt has this interesting piece of (traditional?) scholarhsip posted at SSRN entitled "The Bluebook at Eighteen: Reflecting and Ratifying Current Trends in Legal Scholarship."
Eighth Circuit on state/federal disparity after Booker
The Eighth Circuit today in US v. Jeremiah, No. 05-3164 (8th Cir. May 3, 2006) (available here), speaks directly to the consideration of federal/state sentencing disparities after Booker. Here is the heart of the court's discussion:
The District Court properly calculated Jeremiah's Guidelines sentencing range, and Jeremiah does not argue otherwise. Rather, Jeremiah's sole argument on appeal is that in order to impose a reasonable sentence, the District Court was required by § 3553(a)(6) to consider the sentences imposed in Arkansas state courts for comparable conduct by defendants similarly situated to Jeremiah and to impose a sentence designed to diminish the disparity between the two. This argument is unavailing.
In United States v. Deitz, 991 F.2d 443, 448 (8th Cir. 1993), we held that "the possible discrepancy between state and federal sentences is a factor the [Sentencing] Commission considered but chose not to account for in the Guidelines." We reasoned that the "Commission's goal of imposing uniformity upon federal sentences for similarly situated defendants would be impeded, not furthered," if potential federal/state sentencing discrepancies were considered. Id. at 447.... Although our decision in Deitz predates the Supreme Court's pronouncement in Booker that the Guidelines are merely advisory, we see nothing in Booker that casts doubt on our decision in Deitz. Unwarranted sentencing disparities among federal defendants remains the only consideration under § 3553(a)(6) — both before and after Booker. See United States v. Clark, 434 F.3d 684, 687 (4th Cir. 2006) (noting post-Booker that the "sole concern" of § 3553(a)(6) is disparities among sentences for federal defendants).
The District Court was neither required nor permitted under § 3553(a)(6) to consider a potential federal/state sentencing disparity in imposing Jeremiah's sentence. Accordingly, we conclude that the District Court properly calculated Jeremiah's advisory Guidelines sentencing range, properly considered the § 3553(a) factors, and imposed a reasonable sentence. We affirm.
Interestingly, the emphasis on § 3553(a)(6) and an opaque footnote in Jeremiah perhaps hints that the Eighth Circuit believes a district court after Booker might still be permitted to consider potential federal/state sentencing disparity in its consideration of other factors set forth in § 3553(a). But perhaps I am just trying to find a silver lining in what otherwise strikes me as a dark cloud decision for those interested in broader conceptions of sentencing equality.
So much capital sentencing news...
Thanks to Howard Bashman and his amazing ability to assemble important legal headlines at How Appealing, I can spotlight three big on-going death penalty stories simply through links to his blog:
- For stories on Ohio's problems with a lethal injection yesterday (previously discussed in this post), check out links here.
- For stories on Texas having possibly executed an innocent man, check out links here.
- For stories on the lengthy Moussaoui deliberations, check out links here.
Also, Howard also now has this post noting a Ninth Circuit ruling about federal rules for crediting juvenile time served, and this post noting a Second Circuit ruling about using a polygraph to keep tabs on sex offenders.
Clearing out the Foster pipeline in Ohio
Today brings a (final?) development in the saga of Blakely's application to Ohio's sentencing law. Recall that, a few months ago, the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here). Today, as revealed in this order, the Ohio Supreme Court disposed of 249 Foster cases on its docket by remanding them all to trial courts for resentencing.
I wonder if anyone will track the outcomes in these cases upon resentencing. Resentencing data for these cases would provide one interesting guage of how Foster might impact sentencing in Ohio.
Some recent related posts on Foster:
- Ohio Supreme Court denies reconsideration in Foster
- Ohio Commission response 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
The realities of mentally ill prisoners
In this morning's Wall Street Journal, Gary Fields has this terrific (and long) article about mentally ill prisoners entitled "Trapped by Rules, The Mentally Ill Languish in Prison; For Such Felons, Parole Is Rare, Recidivism Is Probable; Lack of State Hospitals." Here are some highlights:
For years American prisons have been grappling with a surge in the ranks of mentally ill prisoners, caused in part by the shuttering of state-run mental-health facilities a generation ago.... Once imprisoned, mentally ill inmates are rarely paroled. Some "max out" their sentence, serving at least 85% of their term, and are released. With nowhere to go, and with a recidivism rate higher than that of the general prison population, they often end up back where they started....
The National Alliance on Mental Illness estimates there are 300,000 people suffering from mental illness in state and federal prisons, compared with 70,000 in state psychiatric facilities. "Our jails and prisons are our largest mental-health facilities now," says U.S. Sen. Mike DeWine, a Republican from Ohio who has co-authored bills to create federal programs to improve services for mentally ill inmates.
May 2, 2006
Amazing capital punishment issue of Judicature
While looking for an old Judicature article on line, I discovered that the latest issue of Judicature is devoted entirely to the death penalty and it is entirely available for downloading at this link. Just based on the contributors and the titles of the articles — which are too numerous to mention here — I am going to declare this issue of Judicature an absolute must-read for everyone interested in capital punishment topics. In honor of his amazing work as editor of this issue, I'll close this post by spotlighting the pieces by Professor David McCord. His introduction, which is entitled "The effects of capital punishment on the administration of justice," is available here; his afterword, which is entitled "If capital punishment were subject to consumer protection laws" is available here.
The interplay of mandatory minimums and 3553(a)
Since it has been a while since I have posted a notable district court Booker opinion, I am pleased that a helpful reader sent along the recent work of US District Judge Steven Merryday in US v. Ciszkowski, No. 8:05-cr-36-T-23TBM (M.D. Fla. May 2, 2006).
Ciszkowski is notable for a number of reasons (including the interesting names of all the main players). Legally, the decision is interesting for its extended exploration of "whether the presence of a thirty-year minimum mandatory sentence for one of several counts of conviction is a factor the district court may consider in determining a guidelines sentence for the other counts of conviction and in determining a reasonable sentence under 18 U.S.C. § 3553(a)." Factually, the case is interesting because the government ensured the defendant would get an added mandatory 25 years in prison by placing a silencer on a gun that was used in a sting.