« April 30, 2006 - May 6, 2006 | Main | May 14, 2006 - May 20, 2006 »

May 13, 2006

Some weekend SSRN reading

Once again, SSRN is buzzing with new and interesting-looking papers; the following all have at least some sentencing-related aspects:

And, don't overlook mu own recent SSRN posting of Tweaking Booker: Advisory Guidelines in the Federal System.

May 13, 2006 in Recommended reading | Permalink | Comments (0) | TrackBack

Tennessee lethal injection back on schedule

As noted in this post, earlier this week a Tennessee execution scheduled for this coming Wednesday had been stayed by a federal district court.  However, according to this news story, "Sedley Alley is headed to 'death watch' after a federal appeals court lifted a stay Friday night that could have spared him from execution."  The article notes that an appeal to the full Sixth Circuit is in the works, as would also surely be a petition to the Supreme Court.  This distinct account of the Sixth Circuit ruling suggests the panel felt that Alley's claim was brought too late.

The article also details that Alley is pressing a DNA claim and has a request for a reprieve pending: "The state Probation and Parole Board will meet at 10 a.m. Monday at Riverbend to hear Alley's arguments that the governor should give him a reprieve and either order the DNA tests or allow time for a federal appeals court to decide whether Alley has a right to test the evidence."

Some recent related posts:

May 13, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

A case-study in the potency of federal prosecution

This story from Maryland details the interesting and telling outcome in federal court for a defendant who had successfully challenged his state prosection for an alleged on-line sex offense:

Richard J. Moore created legal history when he successfully challenged a state law, arguing that a sex offender could not be convicted for soliciting an undercover officer masquerading as a young girl on the Internet.  Yesterday, the Howard County man paid a heavy price for his appellate victory.

Federal prosecutors took over the case, and a judge sentenced Moore to serve nearly 2 1/2 years in prison for traveling across state lines to have sex with a minor in July 2002.... U.S. District Judge Benson E. Legg said in court yesterday that he would not sentence Moore to home confinement. Instead, Legg said, Moore deserved to be sentenced at the low end of the recommended sentencing guidelines -- between 33 to 41 months in prison.

In court, Assistant U.S. Attorney Andrew Norman argued that Moore's offense was a crime of violence, typical of the kind of sex offense investigators have found on the Internet. Norman said that under current law, the recommended sentencing guidelines for Moore would have been much harsher, carrying a mandatory minimum prison term of five years.  But Gage-Cohen countered that Moore had no idea when he decided to appeal his state conviction that he would prompt state officials to seek out federal prosecutors.

Moore addressed the judge toward the end of the 90-minute hearing, standing in front of a half-dozen members of his family and friends. "I assure you it was an aberration," he told Legg, his voice breaking slightly.  He described his life since, a sorrowful life of divorce, job loss and banishment from the ability to parent his two sons.  "What I did was incredibly wrong," Moore said, adding that as a 9-year-old he was sexually abused.  Still, he said, "I have no one to blame but myself."

Legg declined to impose a sentence below the recommended sentencing guidelines.  "This is a very serious societal problem," Legg said. "It's also a very serious crime." A stiff sentence for Moore, he added, would show others that federal courts treat sex offenders harshly, whether or not there was a "real" victim involved.

May 13, 2006 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

May 12, 2006

Recapping another amazing sentencing week

With an afternoon off-line in my offing, I will put the wraps on another amazing week of sentencing developments with this early week-in-review post.  Have a great weekend (and don't forget mom).






May 12, 2006 in Recap posts | Permalink | Comments (0) | TrackBack

Third Eighth Circuit reversal of downward variance this week

As it has done two previous times this week (details here and here), the Eighth Circuit today in US v. Gall, No. 05-3001 (8th Cir. May  12, 2006) (available here), has reversed another below-guideline sentence as unreasonable.  The district court who did the sentencing in Gall may be galled to discover that the Eighth Circuit panel disagreed with nearly every one of sentencing court's 3553(a) considerations and judgments.

May 12, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

A great habeas resource

With thanks to Steve Vladeck at PrawfsBlawg for this pointer, folks looking for an effective and up-to-date tour through the wonderful world of federal habeas should check out this 40-page report, Federal Habeas Corpus: A Brief Legal Overview" from the Congressional Research Service.  (Also, CRS has this abridged version for even quicker reading.)

Some related posts:

May 12, 2006 in Sentences Reconsidered | Permalink | Comments (0) | TrackBack

In praise of SL&P commentors

I am always impressed, and learn much, from the many informed and insightful readers who comment on posts (both on the blog and through e-mails to me).  And four recent comment threads on a diverse range of topics are so great, I wanted to give them this spotlight in this post:

May 12, 2006 | Permalink | Comments (0) | TrackBack

May 11, 2006

The sad realities of SCOTUS defense advocacy

Tony Mauro has this fantastic new piece available at law.com, entitled "Will Defense Lawyers Accept Help on High Court Criminal Cases?"  The whole article is a must-read for folks interested in the role an impact of defense advocacy.  Here is a snippet:

The Supreme Court oral argument season that just ended saw an unusually high number of state criminal cases argued — 22.  Some were not argued or briefed well from the defense side, say observers in the criminal defense bar who are now looking for ways to upgrade criminal defense advocacy before the Supreme Court, in the same way that their adversaries have improved.  Their concern is that the rights of criminal defendants, already a tough sell before a Court typically unreceptive on that issue, will be further undermined by inadequate briefing and subpar oral advocacy.

May 11, 2006 in Who Sentences? | Permalink | Comments (7) | TrackBack

The partial de facto moratorium created by Hill

Back in January, I pondered here and here whether the Supreme Court's cert grant in Hill to examine procedural questions surrounding lethal injection challenges "could or should produce a de facto moratorium on lethal injection executions nationwide at least until the Supreme Court issues a ruling in Hill."  For a while, as executions went forward in Texas and a few other states, it seemed that the ripple effect of Hill might not be that profound.

However, today brings news (here and here) that a Tennessee execution scheduled for next week has been stayed by a federal district court.  As noted in this post, Delaware earlier this week put its execution plans on hold, and Ohio also has a similar stay in place.  Based on these developments, Karl Keys provides this insightful update on the ripple effects of Hill:

Texas, Virginia, & Oklahoma are top three killers in the USA when it comes to implementing capital punishment.  The three states account for over 50% of the executions in the USA since 1976.  As of Thursday night, the three are also the only jurisdictions where contested execution dates have not been stayed due to concerns over lethal injection.

So, about 100 days since the cert grant in Hill, the current story seems to be that the case has produced a de facto moratorium in every state except those that are the capital punishment leaders.  Naturally, this bizarre reality leads me to wonder yet again how could (and should) Congress clean up the lethal injection mess?

May 11, 2006 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Time to take some more Blakely and Booker cases....

This post at SCOTUSblog notes that the Supreme Court has granted cert in relatively few cases for its next Term.  According to the latest statistics:

As of May 10, the Court had agreed to hear only 13 cases next Term (because of multiples in two grants, that will result in only 11 hours of argument).  At this time last Term, the Court had agreed to hear 22 cases (21 hours of argument) for the following Term, and, in the Term before that, 25 cases in advance grants (21 hours).

Of course, as regular readers know, my solution would be for the Court to take up the many post-Blakely and post-Booker questions that I think merit SCOTUS attention.  (Also, because I am tired of kvetching again and again about the Court's reviewing so many death penalty cases, I hope capital cases won't be used to fill the void.)

Tellingly, this abridged list of key post-Blakely and post-Booker issues I developed last May remains timely.  In addition, now that lower courts have had over 16-months to wrestle with 3553(a) and reasonableness review (and also since Congress is not about to pass a Booker fix), the Court should begin addressing key Booker-remedy questions — e.g., what weight should advisory guidelines now have?  Are departures obsolete after Booker?  Is a presumption of reasonableness for within-guideline sentences suspect or sound?   Readers are, of course, highly encouraged to use the comments to recommend other cert. worthy topics.

On a related front, last year I blogged here and here about the possibility that Chief Justice Roberts' greatest impact could be through efforts to expand the Supreme Court's caseload and to reform the operation of the cert pool.  This latest news suggests that, at least with respect to caseload, the Roberts Court is not bucking recent trends that have dramatically reduced the Court's docket.

UPDATE:  In response to my inquiry, Lyle Denniston has confirmed for me that most of the cert grants so far involve criminal cases.  He says that, of "the 11 hours granted, seven are criminal cases, and maybe eight if you count the partial birth abortion as criminal."

May 11, 2006 in Who Sentences? | Permalink | Comments (2) | TrackBack

Fodder for fans of meta-blogging

Since this wrap-up post, I have not done much meta-blogging about scholarly blogging in the wake of the law blogger conference at Harvard Law School.   But today brings some notable blog posts about law professor blogging: e.g., Ethan Leib here discusses "Election Law Super-Blogging" and Miriam Cherry here discusses pre-emption in the blogosphere.  My favorite, though, is this post from Howard Bashman, in which he links this recent column of his appearing in The Legal Intelligencer.  That column, entitled "The Battle Over the Soul of Law Professor Blogs," provides another recap of the HLS event and also has these very nice things to say about my efforts:

The "Sentencing Law and Policy" blog stands as the epitome of a law professor blog that deserves to be viewed both as scholarship and public service.  The blog reports in a timely manner on significant state and federal court rulings in the area of criminal sentencing, and the blog regularly posts to the internet copies of legislative reports, briefs, and even court opinions that otherwise would not be readily accessible online.

Perhaps for these reasons, "Sentencing Law and Policy" is the blog that has thus far been cited most frequently in court opinions and law review articles.  Yet notwithstanding the blog's focus on a particular legal subject matter, the blog's author, Professor Berman, frequently reveals his passion for sports and popular culture.  The site proves beyond any doubt that a law professor's blog that deserves to count as scholarship and public service need not be bereft of personality or pop culture.

Thanks, Howard.  I'll have to be sure to treat Howard to a Phillies game (or a deductable sex toy?) to repay the favor.

Some recent related posts:

May 11, 2006 in On blogging | Permalink | Comments (0) | TrackBack

Washington Supreme Court address Blakely and minimums

The Washington Supreme Court today in State v. Clarke, No. 76602-9 (Wash. May 11, 2006) addresses the constitutionality of an "exceptional minimum sentence under Blakely."  The 7-2 ruling affirms the defendant's sentence, and the majority opinion (available here) has this start:

After two juries convicted John Mark Clarke of two counts of second degree rape, the sentencing court imposed a maximum sentence of life imprisonment as required by statute.  The sentencing court also imposed an "exceptional minimum sentence," which is a sentence in excess of the standard sentence range for the crimes charged, based on two aggravating factors.  Clarke challenges the constitutionality of his exceptional minimum sentence under Blakely v. Washington, 542 U.S. 296(2004).  We hold that Blakely does not apply to an exceptional minimum sentence imposed under RCW 9.94A.712 that does not exceed the maximum sentence imposed and affirm the Court of Appeals.

The dissent in Clarke (available here) begins this way:

The majority concludes a judge may impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant.  I disagree.  The Sixth Amendment prohibits a judge from imposing a penalty not authorized by the facts found by the jury or admitted by the defendant. See Blakely v. Washington, 542 U.S. 296 (2004).  An exceptional minimum sentence is a penalty.  And under Washington law, a judge may impose an exceptional minimum sentence only if an aggravating factor exists.  Consequently, a judge cannot impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant.

May 11, 2006 in Blakely in the States | Permalink | Comments (2) | TrackBack

What ever happened to state constitutional law, textualism, and libertarianism?

As noted here, yesterday the Arizona Supreme Court rejected a former Phoenix high school teacher's claim that his 200-year prison sentence for possessing child pornography violated the U.S. Constitution's prohibition of "cruel and unusual punishments."  All three opinion in Arizona v. Berger, No. CR-05-0101-PR (Ariz. May 10, 2006) (available here) are fascinating, thoughtful, and worth the time to read if interested in these issues.  (Based on Berger and earlier Blakely work, perhaps the entire Arizona Supreme Court might merit a place in my Sentencing Hall of Fame.)

Though much could be said about Berger, three particular issues/questions came to mind as I reflected on the ruling and the Arizona Justices' opinions:

1.  What about state constitutional law?  Throughout Berger, the Arizona Justices seem to struggle with the Supreme Court's Eighth Amendment jurisprudence and hint that, absent controlling SCOTUS rulings, the case might have been resolved differently.  This led me to wonder about the distinct provision in the Arizona Constitution prohibiting the infliction of "cruel and unusual punishment."  Though bound by SCOTUS interpretation of the Eighth Amendment, the Arizona Justices have a unique authority and obligation to interpret state constitutional provisions (and many state supreme courts have provided defendants enhanced rights based on parallel state constitutional provisions).  Did a state constitutional law claim get raised in Berger?  Could (and should) the Arizona Justices have taken up the issue sua sponte even if not raised below?

2.  What about textualism?  Throughout Berger, the Arizona Justices debate whether there was "gross disproportionality" in the 200-year sentence.  Though this is the focal point of modern Eighth Amendment jurisprudence, I am always troubled that the actual constitutional text gets lost in these cases.  The opinions in Berger make clear that a 200-year sentence for a first-offender downloading terrible pictures is "unusual"; it also seems kind of "cruel."  This textualism concern dovetails with point 1 above: though perhaps bound to ignore the actual text of the Eighth Amendment, the Arizona Justices certainly could (and should?) give distinctive attention to the text of Arizona's constitution prohibition on inflicting "cruel and unusual punishment."

3.  What about libertarianism?  Shouldn't libertarians and folks concerned about privacy issues (such as those who blog here and here and here) be troubled by this case?   The defendant's criminal conduct in Berger essentially consisted of downloading the wrong type of dirty pictures using his computer in the privacy of his own home.  For this he gets a mandatory 200-year sentence, which apparently cannot even be reduced through a pardon or clemency under Arizona law.  Though it is well-settled that simply possessing child pornography can be a crime, shouldn't those who argue for constitutional limits on government power be troubled by how severely Arizona is punishing Mr. Berger?

May 11, 2006 in Sex Offender Sentencing | Permalink | Comments (28) | TrackBack

Eighth Circuit reverses yet another downward variance

While a number of circuits have not yet even issued an opinion in any post-Booker downward variance cases, the Eighth Circuit today in US v. Bradford, No. 04-3493 (8th Cir. May  11, 2006) (available here), delivered its sixteenth(!) reversal of a below-guideline sentence as unreasonable.  Here are snippets:

The thirty-six month sentence imposed in this case represents a sixty-seven percent downward variance from the bottom of the applicable advisory guideline range....  The district court's observation that Bradford's criminal history score overstated his actual criminal history does not support this extraordinary variance.  It is true that Bradford's most recent felony conviction occurred nearly ten years before the arrest in this case.  That fact, however, even combined with some evidence of good behavior by Bradford in the interim, does not entirely eliminate Bradford's criminal history.  But even if Bradford had no criminal history and were placed in a criminal history category of I, his total offense level of twenty-five would leave him with an applicable guideline range of fifty-seven to seventy-one months.  The thirty-six month sentence imposed would still be a thirty-six percent variance from the bottom of the guideline range.

Although the sentencing guidelines are no longer mandatory, they must be considered by the district court in fashioning an appropriate sentence. We are still operating "within the framework of an advisory guideline scheme designed to reduce unwarranted sentencing disparities among similar defendants." United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir. 2006).  It is not reasonable to expect that other similarly situated defendants are receiving similar extraordinary reductions....

May 11, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Important (unpublished) 11th Circuit decision affirming large downward variance

A helpful reader alerted me to an important Eleventh Circuit decision from earlier this week that affirms a significant downward variance.  Here are highlights from the unpublished decision in US v. Halsema, No. 05-13016 (11th Cir. May 9, 2006) (available here):

At Halsema's sentencing the district court correctly calculated the Guidelines range as 57 to 71 months.  The district court, however, sentenced Halsema to 24 months imprisonment.  The district court explicitly stated that it had "reviewed and fully considered the factors set out in 18 United States Code, Section 3553(a)." ...

The district court stated that Halsema's 24-month sentence "is sufficient to provide just punishment . . . and serves as an adequate deterrent to others."  The district court also offered specific reasons for its sentence.  The district court relied on expert testimony that a longer sentence would negatively affect Halsema's rehabilitation.  The district court noted that Halsema had progressed with treatment and, furthermore, that he had suffered greatly from his incarceration thus far.  The district court believed that 24 months was sufficient punishment for Halsema's offense. These reasons are appropriate considerations under 18 U.S.C. § 3553(a).

We are satisfied that the district court seriously considered the § 3553(a) factors.  The government has failed to establish that the sentence was unreasonable.  Although the district court's reasons for the lesser sentence might not have supported a downward departure under the mandatory Guidelines, they are appropriate considerations under an advisory system.

Especially because there have been so few downward variances affirmed (details here), I find it curious and somewhat troubling that Halsema is a "do not publish" decision.  But, that concern aside, this ruling confirms my sense that the Eleventh Circuit (unlike some others) really understands and appreciates that Booker must be understood and applied in a way that gives district judges a meaningful measure of additional sentencing discretion.

May 11, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

US leads the world ... in locking people up

A helpful reader has pointed me to posts at Opinio Juris and Andrew Sullivan's blog noting a recent publication on global incarceration rates from the International Centre for Prison Studies at King's College in London. The publication, which is the sixth edition of the World Prison Population List, can be accessed at this link.  Here are some key findings:

Andrew Sullivan comments that the report shows that "the land of the free is also the land of the unfree," and Peggy McGuiness says it is "certainly clear that our culture tolerates having a much larger portion of our population imprisoned than any other democracy."  In the same vein, I will add that these numbers inform my own work; I always find it difficult to reconcile our country's supposed commitment to freedom and liberty with our extraordinary rates of incarceration and harsh sentencing policies.

May 11, 2006 in Scope of Imprisonment | Permalink | Comments (16) | TrackBack

Reading new Justice tea leaves

Over at FindLaw, Edward Lazarus has this commentary entitled "What Kind of Justice Will Samuel Alito Be? A Recent Death Penalty Decision Provides Some Insights."  In addition to discussing Justice Alito's recent work for the Court in Holmes (background here), this commentary explores what might make Justices Alito and Roberts tick. Here's the introduction:

As the Supreme Court moves into the climactic months of the current Term, all eyes are focused on the impact of the new Justices, John Roberts and Samuel Alito, on the Court's political balance and its approach to cases.  The signs so far have been rather confusing — as I explain. It's already clear that, in a number of ways, both Roberts and Alito are likely to defy predictions.

In this column, I'll briefly explain why Roberts has defied expectations, even in the short time he's been on the Court — and I'll analyze a recent, important Court decision penned by Alito to examine what kind of Justice he may turn out to be.

May 11, 2006 in Who Sentences? | Permalink | Comments (0) | TrackBack

May 10, 2006

Out-of-this-world federal sentencing next week

It is never hard to find fodder for this blog; there's no shortage of interesting sentencing stories.  Proof today come from this AP report about an out-of-this-world federal sentencing scheduled for next week.  Here are some details:

Former astronauts and others urged a federal judge to show leniency Monday when he sentences the former director of the Kansas Cosmosphere and Space Center for stealing artifacts from the museum, saying Max Ary preserved the history of America's space program with the "utmost integrity and dedication."

Court papers filed in the case indicate U.S. District Judge J. Thomas Marten has received more than 100 letters in support of the embattled former director who turned a small Kansas museum into an internationally acclaimed facility on U.S. and Soviet space exploration....

Prosecutors have not filed a sentencing memorandum with the court. Jim Cross, spokesman for the U.S. Attorney's Office, said federal prosecutors did not have any comment on sentencing recommendations. "I am sure Judge Marten will take into account all the available information and proceed as he deems is in the best interest of everyone," defense attorney Lee Thompson said Wednesday....

In November, a jury found Ary guilty of 12 counts - two counts of theft of government property, two counts of wire fraud, three counts of mail fraud, three counts of interstate transport of stolen goods and two counts money laundering.  He was found not guilty of one count of interstate transport of stolen goods and one count of money laundering.  He faces up to five years in federal prison and a $250,000 fine on each of the wire fraud and mail fraud counts.  He faces up to 10 years and a $250,000 fine on each count of theft and each count of transportation of stolen property.

May 10, 2006 in Offense Characteristics | Permalink | Comments (0) | TrackBack

Four-year sentence in The Station nightclub fire

As detailed in this news report from Rhode Island, "Superior Court Judge Francis J. Darigan today sentenced Daniel Biechele to 15 years in prison, with four to serve and 11 years suspended, for his role in setting off the disastrous Station nightclub fire."  (Responding to this recent post about the case, commentors were in the ballpark with their predictions.)  Here are more details from the news report:

The sentence brought gasps from some of those in the courtroom, and some family members later expressed anger.  "This is a total travesty of justice. This boy is going to walk in four years. Is my brother and sister-in-law going to come home? No," said Theo Suffoletto, who lost his brother and sister-in-law Benjamin and Linda Suffoletto. Diane Mattera, mother of Tammy Mattera-Housa, walked from the courthouse, crying, shaking her head and saying, "Four years, 100 people."

In handing down the much-anticipated sentence, Darigan noted Biechele's sense of remorse, good background, potential for rehabilitation and willingness to accept responsibility.  He also took great pains to explain the differences between charges related to causing the death of another, from murder to involuntary manslaughter.

A helpful colleague watching on CourtTV informed me of the particulars of the sentencing proceeding, which seemed rich with drama and thoughtful discussion of sentencing purposes (and was free of guideline calculations).  Additional press coverage is available here and here.

It will be interesting to hear reactions in the hours and days ahead.

UPDATE:  TalkLeft has this extended post about the sentencing of Daniel Biechele, which points to this AOL page where you can vote whether you think the sentence is "about right" or "too harsh" or "too light." As of 6pm, with nearly 25,000 votes, 38% of respondents are calling the sentence about right while 31% are calling the sentence too harsh and another 31% are calling it too light.

May 10, 2006 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Arizona Supreme Court upholds 200-year sentence for possessing child porn

As explained in this news report, though "some members of Arizona's highest court expressed unease," the Arizona Supreme Court today affirmed "a 200-year prison sentence imposed on a former Phoenix high school teacher for possessing child pornography" over the defendant's claim "that his sentence violated the U.S. Constitution's Eighth Amendment protections against cruel and unusual punishment."  The court's lengthy and interesting opinion in Arizona v. Berger, No. CR-05-0101-PR (Ariz. May 10, 2006), can be accessed here.  I may have some comments in a later post once I have a chance to read the majority opinion and the two concurrences.

May 10, 2006 in Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Fascinating concurrence in Ninth Circuit capital case

Thanks to Capital Defense Weekly's post here, I took a look at the fascinating concurrence from Judge Ferguson in the capital habeas cases Morris v. Ylst, No. 05-99002 (9th Cir., May 9, 2006) (available here).  In Morris, the Ninth Circuit orders a new penalty-phase trial, but Judge Ferguson has a lot more to say about the exercise of prosecutorial discretion in capital cases.  Here is a sample:

I write separately to underscore the prosecutor's abuse of his discretion in singling out the Petitioner for the death penalty, when it is the state's position that the three defendants are equally guilty of the felony murder of Van Zandt.  As long as a prosecutor's discretion in seeking the ultimate penalty — death — remains thus unbridled, the administration of the death penalty in the United States will violate the guarantees of due process and freedom from cruel and unusual punishment enshrined in the Constitution....

Over thirty years ago, the Supreme Court declared that death is different. The death penalty must be imposed fairly, without prejudice or whim, or it may not be imposed at all.  Furman v. Georgia, 408 U.S. 238 (1972); see Gregg v. Georgia, 428 U.S. 153, 188 (1976) (interpreting Furman).... Even as the courts have tried to limit the jury's discretion to impose the death penalty, "discrimination and arbitrariness at an earlier point in the selection process nullify the value of later controls on the jury." DeGarmo v. Texas, 474 U.S. 973, 975 (1985) (Brennan, J., dissenting from denial of writ of certiorari).  Here, the prosecutor's unbridled discretion to single out Morris for prosecution under the death penalty, when the guilt is equally spread among his co-defendants, is a rank example of "arbitrariness at an earlier point in the selection process." Id.  This sort of gross disparity in the treatment of equally guilty defendants "highlights the utter failure of the elaborate sentencing schemes approved by the [Supreme] Court in Gregg and its companion cases to meaningfully limit the arbitrary infliction of death by the States." Id. at 974-75....

The sentencing jury in this case must be permitted to consider the prosecutor's grossly disparate treatment of Morris's equally guilty co-defendants as a circumstance of the offense justifying a sentence less than death.  As the reasoning in my earlier concurrence makes clear, see In re Morris, 363 F.3d at 896 (Ferguson, J., concurring specially), providing additional mitigation instructions to the capital jury as a means of cabining prosecutorial discretion also avoids a separation-of-powers issue.  This Court in Redondo-Lemos determined that although an arbitrary exercise of prosecutorial discretion violates the Due Process Clause, there is no judicial remedy available because courts generally may not inquire into prosecutors' decision-making processes. 955 F.2d at 1299....  In this case, introducing evidence of the sentences received by Morris's co-defendants would not require the courts to investigate the internal charging decisions of the prosecutor. Instead, it would compel the prosecution to live with the charging decisions it made: if the jury found that the exercise of discretion in seeking the death penalty against Morris was arbitrary, it would be free to use that fact as a mitigating factor.

May 10, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Interesting analysis of Moussaoui verdict

Over at FindLaw, Professor Michael Dorf has this interesting essay entitled "What the Moussaoui Sentence Teaches About 'Mitigating' Evidence."  Here is Dorf's overview of the piece:

No doubt the [Moussaoui] verdict left many Americans scratching their heads.  Moussaoui had pled guilty to the crime of conspiracy and during the sentencing hearing, he brazenly took glee in the suffering his co-conspirators' acts had caused.  If the only person to go before a jury for the single greatest act of mass murder in U.S. history does not deserve to die, who does?  If we are going to have a death penalty for any crimes, how can we impose it on street criminals for drug deals gone bad, but not on the likes of Moussaoui?

I try to answer these questions below.  I also discuss an intriguing suggestion that the jurors formally rejected, but that may, nonetheless, have played at least a subconscious role in their deliberations: the idea that execution was unwarranted because it would only make a martyr of Moussaoui and thereby invite further attacks.

Some recent related posts:

May 10, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

You make the call: sentencing in The Station nightclub fire

As detailed in all the coverage from CourtTV and from the Boston Channel, a remarkable state sentencing proceeding is unfolding this week in Rhode Island.  Three years ago, a fire at The Station nightclub killed 100 people and injured more than 200.  Daniel Biechele, the road manager of the band Great White, started the show's deadly pyrotechnics, and earlier this year he pled guilty to 100 counts of involuntary manslaughter.  His sentencing hearing on Monday and Tuesday was filled with emotional victim impact testimony, and he is due to receive his sentence on Wednesday. 

As some stories have noted, prosecutors are seeking the maximum sentence, 10 years in prison, based on claims that Biechele acted negligently and recklessly.  But Biechele's lawyers, who say he was unaware of the firetrap conditions, want Biechele sentenced to community service.  I am pretty sure that the sentencing judge has complete discretion (and little formal guidance from Rhode Island law) when selecting a sentence for Biechele.

So, fair readers, you make the call:  What sentence should Biechele get?

If you want some comparative background, you might read up on the aftermath of other infamous nightclub fires in American history, such as the Coconut Grove fire in Massachusetts, the Rhythm Night Club fire in Mississippi, or the Beverly Hills Supper Club fire

Though I am going to be off-line until later this afternoon, I'll update this post to report what sentence Biechele in fact receives.

UPDATE:  The outcome is reported in this post, "Four-year sentence in The Station nightclub fire."

May 10, 2006 in Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

Another state halts an execution due to lethal injection litigation

As of today, add Delaware to the list of states halting planned executions while the Supreme Court considers a procedural issue relating to constitutional challenges to lethal injection.  Details of the stay entered by a federal court in Delaware can be found in articles here and here.  The News Journal provides these highlights:

A federal judge has blocked the May 19 execution of convicted ax murderer Robert Jackson until the Supreme Court rules on a case claiming certain methods of lethal injection are unconstitutionally cruel and unusual.  Attorney General Carl Danberg confirmed this afternoon that Chief U.S. District Judge Sue Robinson issued an injunction halting the state's plans to put Jackson to death.

Jackson’s attorneys had filed an emergency appeal in U.S. District Court in Delaware on Monday, joining a national movement to stop lethal injections by raising civil rights claims about the way states carry them out. The U.S. Supreme Court heard arguments last month in a Florida case that raised similar claims.

Since that time, at least nine executions have been put on hold across the country, according to Richard Dieter, executive director of the Death Penalty Information Center in Washington.  Affected states so far include Florida, California, New Jersey and Missouri.

Some recent related posts:

May 10, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Interesting examination of faith-based prison movement

I am quite intrigued and even encouraged by the faith-based prison movement.  And, as suggested in this recent post, I hope that observers and advocates of progressive prison reforms will not excessively focus on church/state constitutional issues that might be raised by faith-based prison programs.  Consequently, I was pleased to discover this interesting looking paper by Marc O. DeGirolami on SSRN entitled "The New Religious Prisons and Their Retributivist Commitments."  Here is a portion of the abstract:

Religious prisons raise serious questions of constitutionality and effectiveness, and most of the critical commentary to date has focused either on the considerable Establishment Clause concerns or the programs' inconclusive recidivism results. This article explores the criminological commitments of religious prisons.  Though religious prisons serve rehabilitative aims, this article emphasizes the importance of their retributive goals — what Professor R.A. Duff has termed the censure-communicating purpose of punishment and the Three 'R'S of Punishment, repentance, reform, and reconciliation — in justifying the use of religious programming in prisons. The paper offers an argument to skeptics who claim that religious programming serves no purpose absent an unequivocal showing of rehabilitative effectiveness.  It claims that even if the evidence of reduced recidivism has been inflated or manipulated, as many critics claim, religious programming may be justified theoretically by reference to its potential for a special manifestation of penitential retribution that might advance secular ends.

Some recent related posts:

May 10, 2006 in Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Record sentence for spam crime

Especially as I deal with an insane amount of comment and trackback spam on the blog, I am pleased to note a record federal sentence for a spam-related computer crime.  Here are some highlights from articles here and here discussing the crime and sentence:

A Downey man was sentenced to nearly five years in federal prison Monday for using malicious software to seize control of 400,000 computers and then selling access to the "zombie" machines to spammers and hackers.  Prosecutors said the 57-month sentence for Jeanson James Ancheta, 21, was the longest ever handed down for spreading computer viruses. The case also marked the first federal prosecution for using such hacking methods for financial gain.

Ancheta pleaded guilty in January to selling access to so-called botnet software that can remotely control computers to deliver spam and orchestrate distributed denial-of-service attacks against websites. Such attacks send overwhelming streams of requests to the sites, causing them to shut down. Ancheta advertised his botnets online under the heading "botz4sale."

May 10, 2006 in Offense Characteristics | Permalink | Comments (0) | TrackBack

May 9, 2006

Eighth Circuit reverses another large downward variance

The Eighth Circuit through its decision in US v. Bryant, No. 05-2243 (8th Cir. May 9, 2006) (available here), continues to set the pace for reversing post-Booker below-guideline sentences.  Here are some abridged highlights from Bryant, which I believe is the fifteenth(!) post-Booker below-guideline sentence reversed by the Eighth Circuit:

The thirty month sentence imposed in this case represents a fifty-seven percent downward variance from the bottom of Bryant's advisory guideline range.  We are mindful that the appropriate degree of sentencing reduction cannot be calculated with mathematical precision, and there is a range of reasonableness available to the district court in any given case.  Nevertheless, the record in this case does not support such a drastic reduction from the guideline range....

The district court, in sentencing Bryant, offered only a brief reference to Bryant's "previous good record" and the fact that he had remained drug-free for nine months.  While we do not require a rote recitation of each § 3553(a) factor, the court should explain both the decision to vary and the extent of the variance.  The district court presumably intended Bryant's drug rehabilitation and limited criminal history to be relevant to "the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1).  In light of the other Section 3553(a) factors, however, such as the nature and circumstances of the offense, the need of the sentence to reflect the seriousness of the offense and to provide just punishment, the applicable guideline range, and the need to avoid unwarranted sentencing disparities, the history and characteristics of Bryant do not justify a thirty-month sentence in this case....

"[W]ithin the framework of an advisory guideline scheme designed to reduce unwarranted sentence disparities among similar defendants," Saenz, 428 F.3d at 1162, it is unreasonable for such a large variance to be made based simply on Bryant's limited criminal history and nine months of drug-free living.  Although these factors might well be sufficient to justify some variance from the presumptively reasonable guideline range, they do not justify a fifty-seven percent variance from the presumptively reasonable guideline range.  The sentencing guidelines are indeed no longer mandatory, but they continue to be guideposts that must be respected, lest we see a return to the unwarranted sentencing disparities that resulted in the adoption of the guidelines themselves.

May 9, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

A final tweak to finish Menyweather

The Ninth Circuit today put a finishing touch on US v. Menyweather, No. 03-50493 (9th Cir. Dec. 16, 2005) (discussed here), amended (May 9, 2006) (available here).  Though technically a case about a pre-Booker departure, Menyweather has garnered attention because of a strong dissent from Judge Kleinfeld and because the Justice Department has cited the decision as an example of the lax nature of post-Booker reasonableness review.

Today's order and brief amendment in Menyweather reveals that only Judge Kleinfeld is interested in reconsidering the case en banc.  And I suspect that DOJ won't even bother to seek cert, though it likely will continue to cite the case as an example of post-Booker problems.  However, as this list of major post-Booker reasonableness review outcomes highlights, victories for government dominate the post-Booker appellate world and Menyweather is an anomalous outlier in many respects.

May 9, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

What do Justices Alito and Roberts think about bright lines?

The top-side SCOTUS briefs in Cunningham, the California Blakely case (which are available here), are both fascinating and very different reads.  In a future post, I plan to discuss the briefs in more detail.  But my first reaction is that Cunningham sets up a great test of whether the Roberts Court is going to define and develop the Apprendi-Blakely rule as a bright line.

I have discussed these issues before in this post last year entitled "Does Blakely draw a bright line? What is that line?".  As noted in that post, though Justice Scalia in Blakely called the rule in Apprendi a "bright line," the New Mexico Supreme Court's Blakely ruling (basics here) asserted that the Apprendi-Blakely-Booker line of cases "ought not be viewed as drawing a bright line," and the California Supreme Court's ruling on Blakely (basics here, commentary here and here) likewise asserts that the "high court's precedents do not draw a bright line."

Clearly, the Booker remedy helped obscured whatever bright line Blakely may have aspired to create.  (Moreover, as I detail in my Reconceptualizing Sentencing article, the Supreme Court's sentencing jurisprudence was conceptually muddled even before Blakely and Booker came along.  Writing in a similar vein in his Columbia Law Review article, Kevin Reitz describes the Supreme Court's Sixth Amendment jurisprudence as "constitutional Swiss cheese.") 

Consequently, the fundamental question as we approach Cunningham is whether the new Roberts' Court will want to clarify that Blakely does draw a bright line or instead now will suggest Blakely can and should be applied by states in a more nuanced way.  Not surprisingly, both top-side briefs in Cunningham assert and stress that the Apprendi-Blakely rule draws a bright line.  I suspect the briefs on the other side will be fighting this notion.  And the future of Blakely — not just in California, but throughout the nation — may turn ultimately on what Justices Alito and Roberts think about bright-line rules in this context.

May 9, 2006 | Permalink | Comments (0) | TrackBack

A high sentence for a slice of Big Love

Biglove_logo As noted in this post and this post, some sentencing proceedings conjure up images of the HBO series The Sopranos.  And this notable sentencing reminded me of a famed episode of HBO's dearly departed Six Feet Under.  But this story from Virginia about a sentence for the crime of bigamy has me thinking, of course, about HBO's Big Love.  Here are some details:

A 62-year-old man was sentenced to a year behind bars today on an unusual felony charge of bigamy after his two most recent wives testified his deceit had nearly wrecked their lives. Charles Edward Hicks, who has been married seven times, had pleaded guilty to marrying his sixth wife in Chesapeake while still married to his fifth in Florida — the second time two of his marriages had overlapped.

Hicks' lawyer suggested to a judge today that the dual marriages were an oversight. Hicks added that he wanted only "mutual love and admiration" but that "people don't always make it, relationships don't always work."  But a prosecutor called Hicks "predatory," and two of the women he married testified he left them deep in debt and emotionally wounded....

Bigamy carries a potential penalty of up to 10 years in prison, but the state sentencing guidelines called for straight probation for Hicks, a government computer specialist who had no prior record except minor traffic offenses.  Judge Goodwin said he decided to exceed the guidelines because of the "recklessness" with which Hicks pursued matrimony.

May 9, 2006 in Offense Characteristics | Permalink | Comments (1) | TrackBack

Still more lethal injection litigation

Fortunately, for anyone who needs a regular fix of lethal injection developments (and which was not satiated by this recent collection), I can now provide still more lethal litigation news:

May 9, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

May 8, 2006

First set of briefs in Cunningham

As I mentioned in this recent post, it's time to start getting excited about the Supreme Court's consideration of Cunningham, the California Blakely case, which Professor Michael O'Hear is speculating could be "The Supreme Court's Next Sentencing Blockbuster."  (In anticipation of lots of coming Cunningham fun, I have created a new category archive, cleverly titled "Cunningham coverage," at this link.)

I just received copies of briefs filed today by the petitioner (Mr. Cunningham) and the NACDL in support of petitioner.  I have made both of these briefs available for download below.  Based on a quick scan, I bet I will have a lot more to say about these briefs in the days ahead.  In the meantime, perhaps readers can talk up matters in the comments.

Download cunningham_petitioner_brief.pdf

Download cunningham_amicus_brief_final.pdf

May 8, 2006 | Permalink | Comments (1) | TrackBack

More fast-track work from Judge Adelman

I suppose it is fitting the first work day after the Run for the Roses to have a lot of fast-track discussion on the blog.  In addition to the Ninth Circuit's fast-track opinion today in Marcial-Santiago (basics here), folks interested in fast-track disparity issues should check out an opinion from last week by Sentencing Hall of Famer Judge Lynn Adelman.  Judge Adelman's latest notable post-Booker work appears in US v. Salazar-Hernandez, No. 03-CR-294 (E.D. Wis. May 1, 2006), as is available for download below.  Like all of Judge Adelman's post-Booker efforts (many of which I've linked to at the end of this post), Salazar-Hernandez covers a lot of ground in short order and merits a full and close read.

Download adelman_salazarhernandez_opinion.pdf

Prior posts on some of Judge Adelman's post-Booker work:

May 8, 2006 in Booker in district courts | Permalink | Comments (0) | TrackBack

First Circuit finds huge upward variance unreasonable

As detailed here, reasonableness review rarely goes the defendant's way in the post-Booker world.  However, on the heels of the Eighth Circuit's reversal last week of a large upward variance in Kendall (basics here), the First Circuit today in US v. Zapete-Garcia, No. 05-1352 (1st Cir. May 8, 2006) (available here) finds unreasonable a sentence of 48 months in prison which was "eight times the maximum guideline-recommended sentence [of] zero to six months."

Appellate Law & Practice has complete and effective coverage of Zapete-Garcia here.  AL&P also discusses some other recent noteworthy First Circuit dispositions with sentencing issues here and here and here.  Also, while I am catching up, never forget that the defender blogs (assembled at this link) always merits a few checks each week for significant sentencing decisions or commentary.

May 8, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Ninth Circuit discusses fast-track disparity

The Ninth Circuit today in US v. Marcial-Santiago, No. 03-30248 (9th Cir. May 8, 2006) (available here) discusses at some length the defendants' contention that "the disparity between their sentences, and the sentences imposed on similarly-situated defendants who are prosecuted in districts with fast-track programs, is unwarranted and renders their sentences unreasonable."  Here is the heart of the analysis (with cites omitted) from the Ninth Circuit:

In light of Congress's explicit authorization of fast-track programs in the PROTECT Act, we cannot say that the disparity between Appellants' sentences and the sentences imposed on similarly-situated defendants in fast-track districts is "unwarranted" within the meaning of § 3553(a)(6).  When Congress passed the PROTECT Act, it did so with knowledge that 18 U.S.C. § 3553(a)(6) was directing sentencing courts to consider the need to avoid unwarranted sentencing disparities.  By authorizing fast-track programs without revising the terms of § 3553(a)(6), Congress was necessarily providing that the sentencing disparities that result from these programs are warranted and, as such, do not violate § 3553(a)(6).  Accordingly, we conclude that the disparity between Appellants' sentences and the sentences imposed on similarly-situated defendants who are prosecuted in fast-track districts is not unwarranted.  It is justified by the benefits gained by the government when defendants plead guilty early in criminal proceedings.

Even if this disparity were assumed to be unwarranted, however, that factor alone would not render Appellants' sentences unreasonable; the need to avoid unwarranted sentencing disparities is only one factor a district court is to consider in imposing a sentence. At Appellants' sentencing hearings, the district court noted that the Guidelines ranges were advisory, considered and rejected Appellants' arguments regarding the disparity between sentences imposed in the District of Montana and in fast-track districts, and weighed the other § 3553(a) factors.  After completing this review, the court imposed sentences that are within the Guidelines ranges.  The district court gave thoughtful attention to factors recognized in § 3553(a) and exercised sound discretion to ensure that the punishment fit the crime and the circumstances of the appellants.  We conclude that the sentences Appellants received are reasonable, and we will not here disturb the discretion of the sentencing court.

We turn next to Appellants' assertion that the PROTECT Act's provision authorizing fast-track programs violates their due process and equal protection rights because similarly situated individuals in districts with fast-track programs could receive lower sentences.  The fast-track provision of the PROTECT Act applies only to convicted felons, and so we consider whether the provision is rationally related to a legitimate government interest.  Because the government has a legitimate interest in conserving prosecutorial and judicial resources in districts with large numbers of immigration cases, and fast-track programs are rationally related to that interest, we conclude that the PROTECT Act's authorization of these programs, and their implementation in some but not all districts, does not violate Appellants' equal protection and due process rights.

Careful readers will appreciate that the Ninth Circuit does not assert (or suggest?) that it would be unreasonable for a district court to exercise its discretion to adjust a sentence based, at least in part, on a concern about fast-track disparity.  Rather, Marcial-Santiago only stands for the proposition that a within-guideline sentence is not necessarily unreasonable for failure to consider fast-track disparity.

May 8, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

A reason-less application of reasonableness

In my article "Conceptualizing Booker" (which I posted in early draft form here and which should appear soon in final form in the Arizona State Law Journal ), I set out this vision of reasonableness review of sentences: reasonableness review requires a circuit court to exercise its own reasoned judgment to assess whether a sentencing court has properly exercised reasoned judgment in selecting a sentence in a particular case in accord with the directives of section 3553(a).  A decision today by the Eighth Circuit shows how my vision is aspirational, and does not reflect what some circuit courts are actually doing.

In US v. Annis, No. 05-3521 (8th Cir. May 8, 2006) (available here), the defendant appears to be a meth addict who pled guilty to manufacturing meth and faced a guideline range or roughly 20 to 25 years (for his first offense?) because of debatable guideline calculations — including the rejection of an acceptance-of-responsibility reduction even though he pled guilty and confessed to how much meth he made.  The bulk of the nine-page opinion in Annis involves the Eighth Circuit rejecting the defendant's various arguments that the guideline calculations were improper.  Then, in a final section, this is the sum total of the review for reasonableness (with rote cites omitted):

Annis states his sentence is unreasonable because the district court failed to apply the sentencing factors in 18 U.S.C. § 3553(a).  This court reviews the reasonableness of a defendant's sentence for abuse of discretion.....

The district court calculated the Guidelines range to be 235 to 293 months, sentencing him to 235 months in prison.  A sentence within the Guidelines range, as here, is presumptively reasonable.  Also, at the sentencing hearing the district court expressly considered the § 3553(a) factors.  Annis's real argument is that the court did not apply these factors correctly, otherwise he would have received a lesser sentence.  But, the record reflects the district court did not abuse its discretion in sentencing him within the Guidelines range.

I find it quite troubling the Eighth Circuit simply asserts that the defendant's "real" reasonableness argument is just another way of asserting that guideline calculations were wrong.  In Annis, this assertion is especially troubling because, even accepting the guideline calculations were proper, the underlying facts suggest that the consequences of these calculations could be unreasonable in light of the non-guideline factors that have to be considered under 3553(a).  But, after spending many pages justifying a set of harsh guideline determinations, the Eighth Circuit apparently lacked the energy or inclination to consider whether reasonableness might have any "real" meaning outside the guideline framework.  Bleech...

May 8, 2006 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

Lots of lethal injection talk

Back at the home computer, my routines have revealed a lot of recent lethal injection coverage.  Here's just a sample of some recent stories and commentaries:

Some recent lethal injection posts:

UPDATE: Monday morning brings this interesting piece from the Hartford Courant entitled, "Capital Clumsiness: Ohio Case Is Latest In Line Of Bungled Executions."

May 8, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

May 7, 2006

Policy judgments at federal sentencing: aren't they inevitable and mandated by Congress?

In discussion of post-Booker federal sentencing at the Yale Law School class I recently had the pleasure of attending, I was surprised to often hear the refrain that judges "should not make policy judgments" at sentencing.  I have long thought it was post-modern gospel that all judicial decision are, at some level, policy judgments.  But beyond this legal realist premise, it dawns on me that all judicial sentencing decisions plainly are, at some level, policy judgments informed by views on just punishment, crime control, procedural fairness, and other express and implicit considerations.

After Booker, the impact of policy judgments at sentencing is evident in many ways.  Decisions by some district judges to give the guidelines heavy weight obviously reflect a kind of policy judgment, as do decisions to apply a particular burden of proof or to increase a sentence based on acquitted conduct. Likewise, decisions by circuit judges to handle Booker plain error in particular (and diverse) ways reflect a policy judgment, as did the Supreme Court's decision not to resolve the circuit split over Booker plain error standards.

As we reflect on these realities, it is valuable to appreciate that executive branch officials make policy judgments at sentencing all the time.  All prosecutorial charging and plea bargaining decisions involve, at some level, policy judgments informed by views on just punishment, crime control, procedural fairness, and a range of other express and implicit considerations.  Same goes, of course, for decisions about who gets sentence reductions for assisting authorities or which districts will have fast-track sentence reduction programs.  And, interestingly, we never hear complaints or concerns about unelected federal prosecutors making policy judgments at sentencing (even though prosecutorial policy judgments are not made in open court nor subject to any kind of review).

Furthermore, it seems that Congress, through the text of 3553(a), has told federal judges to make individualized policy judgments at sentencing.  The formal mandate of 3553(a) requires a federal judge to impose a sentence in each case that is "sufficient, but not greater than necessary" to serve the traditional purposes of punishment set forth in 3553(a)(2).  Doesn't this text suggest that Congress wants federal judges, in individual cases, to make policy judgments about how the traditional purposes of punishment ought to be applied to individual defendants?

In sum, I questions the assertion that federal judges "should not make policy judgments" at sentencing because: (1) such judgments seem inevitable and are clearly made by prosecutors in every criminal case, and (2) a fair reading of the text of 3553(a) suggests that Congress has ordered federal judges to make individualized policy judgments in each and every sentencing.

May 7, 2006 in Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack