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:
- Prioritizing Policy Before Practice After Booker by Carissa Byrne Hessick
- Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes by Sheri Lynn Johnson, Jennifer Eberhardt, Paul Davies and Valerie Purdie-Vaughns
- Faith, Justice, and the Teaching of Criminal Procedure by Michael M. O'Hear
- The Effects of Depth and Distance in a Criminal Code on Charging, Sentencing, and Prosecutor Power by Ronald Wright and Rodney Engen
And, don't overlook mu own recent SSRN posting of Tweaking Booker: Advisory Guidelines in the Federal System.
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:
- How could (and should) Congress clean up the lethal injection mess?
- The partial de facto moratorium created by Hill
- Another state halts an execution due to lethal injection litigation
- Still more lethal injection litigation
- Lots of lethal injection talk
- More lethal injection drama in Ohio
- Lethal injection litigation developments
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 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).
SCOTUS DEVELOPMENTS AND COMMENTARY
- First set of briefs in Cunningham
- What do Justices Alito and Roberts think about bright lines?
- Time to take some more Blakely and Booker cases....
- Reading new Justice tea leaves
- The sad realities of SCOTUS defense advocacy
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- The partial de facto moratorium created by Hill
- Another state halts an execution due to lethal injection litigation
- Fascinating concurrence in Ninth Circuit capital case
- Interesting analysis of Moussaoui verdict
BOOKER DEVELOPMENTS AND COMMENTARY
- Policy judgments at federal sentencing: aren't they inevitable and mandated by Congress?
- More fast-track work from Judge Adelman
- First Circuit finds huge upward variance unreasonable
- A reason-less application of reasonableness
- Third Eighth Circuit reversal of downward variance this week
- Ninth Circuit discusses fast-track disparity
- Important (unpublished) 11th Circuit decision affirming large downward variance
STATE SENTENCING DEVELOPMENTS AND COMMENTARY
- Arizona Supreme Court upholds 200-year sentence for possessing child porn
- What ever happened to state constitutional law, textualism, and libertarianism?
- Washington Supreme Court address Blakely and minimums
- You make the call: sentencing in The Station nightclub fire
- Four-year sentence in The Station nightclub fire
- A high sentence for a slice of Big Love
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- US leads the world ... in locking people up
- Record sentence for spam crime
- Interesting examination of faith-based prison movement
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.
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:
- Terrific habeas debate over at Debate Club
- An engaging (but incomplete) habeas debate
- Someone should start an AEDPA blog
- How about a whole new structure for federal capital appeals?
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:
- Comments here to the post "Policy judgments at federal sentencing: aren't they inevitable and mandated by Congress?"
- Comments here to the post "What ever happened to state constitutional law, textualism, and libertarianism?"
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.
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?
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."
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.
Some recent related posts:
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.
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?
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....
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.
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:
- The United States has the highest prison population rate in the world, some 714 per 100,000 of the national population, followed by Belarus, Bermuda and Russia (all 532), Palau (523), U.S. Virgin Islands (490), Turkmenistan (489), Cuba (487), Suriname (437), Cayman Islands (429), Belize (420), Ukraine (417), Maldive Islands (416), St Kitts and Nevis (415), South Africa (413) and Bahamas (410).
- However, almost three fifths of countries (58%) have rates below 150 per 100,000.
- Prison population rates vary considerably between different regions of the world, and between different parts of the same continent.
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.
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 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.
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.
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.