January 14, 2006
Continued controversy over Vermont sentencing
Thanks to CrimProf, I see from this AP article that the controversy over one seemingly too lenient sentence in Vermont is enduring. As detailed in the article, Judge Edward Cashman "sentenced a child molester to just 60 days of jail time -- a sentence he said was designed to ensure the man got prompt sex-offender treatment but critics say was too soft." Now "several Vermont Republican lawmakers have demanded he resign or be impeached."
And, just today, the plot has thickened: this AP article now reports that "Former [Vermont] Chief Justice Jeffrey Amestoy has praised Judge Edward Cashman as a competent, caring and conservative trial judge." And this story reports that a "key Republican legislator said Friday much of the furor that has surrounded a judge's sentencing of a repeated child offender could have been avoided if the media had done a better job reporting what the judge had done." And this story now details some ways that Judge Cashman's sentencing has been misreported and misunderstood.
A new politics with (only) the death penalty
The New York Times today has this intriguing article discussing how outgoing Virginia Governor Mark Warner has "established new middle ground in the polarized world of death penalty politics" and how some have perceived his work in this area:
[I]n four years as governor, Mr. Warner has incrementally and with little fanfare established groundbreaking policies on the use of DNA testing to confirm, or challenge, criminal convictions, many of them in death penalty cases. Last week, he became the first governor to order a DNA test involving a man who had already been executed....
Unlike former Gov. George Ryan of Illinois, who ordered a moratorium on executions in 2003, Mr. Warner has not called for halting executions, and he still supports capital punishment. His goal, he has said, has not been to undermine the system but to make sure it works....
But because Mr. Warner, a Democrat barred by law from a consecutive term, is considering a run for president in 2008, his actions are being scrutinized for political motives. Critics say those are clear....
Michael Paranzino, president of Throw Away the Key, a nonprofit group that supports the death penalty ... and other critics of Mr. Warner say the governor, who has tried to cast himself as a centrist on fiscal issues, gun control and other policies, has moved left on criminal justice to win support from liberal Democratic primary voters.
The politics of the death penalty always intrigues me, and it is especially fascinating to hear criticism of a purported "move left" on the death penalty for political reasons. In this post, TalkLeft spotlights why simply ensuring that only the guilty are convicted is hardly a move left on crime issues. (Fittingly, the prior post at TalkLeft reports yet another DNA exoneration for someone serving a life sentence for a crime he did not commit.)
Moreover, isn't democracy working well if politicians views and actions are influenced by the views and interests of the electorate? Gosh knows that no shortage of politicians have "moved right" on criminal justice issues to win support from voters. I suspect that Michael Paranzino and other critics of Governor Warner have not expressed vocal opposition to these political moves.
Finally, as this strong post by Spenser Overton highlights, if Gov. Warner really was moving left on criminal justice issues, he would do something about his state's troubling record on felon disenfranchisement by restoring voting rights to the nearly 250,000 Virginians who have completed their sentences but are still not allowed to be full members of our polity.
January 13, 2006
Schwarzenegger denies clemency to Allen
As detailed in this article, "Gov. Arnold Schwarzenegger denied clemency this afternoon for convicted murderer Clarence Ray Allen, who is scheduled to die by lethal injection at San Quentin State Prison early Tuesday." Allen had argued, as detailed in posts linked below, that his old age and poor health provided a justification for clemency. Governor Schwarzenegger's written explanation for his unsurprising decision not to grant clemency on these grounds can be found here.
- Too old and sick to die?
- The next high profile California capital case
- Schwarzenegger denies Tookie Williams clemency
Other Booker birthday celebrants
Thanks to this post by Peter Lattman over at the great WSJ Law Blog, I am pleased to discover others celebrating Booker's birthday. That post also points me to this interesting Forbes article reflecting on post-Booker developments, with a white-collar spin. Here are highlights:
A year ago the Supreme Court gave judges leeway to ignore sentencing guidelines that slap white-collar crooks with absurd prison terms. Not much has changed....
Why are judges still hewing to the guidelines? One reason is they are required to take them into account under the Supreme Court ruling. Judges may also fear their decisions being overturned on appeal or worry about Congress ratcheting up recommended sentences.
Related recent posts:
Once more around the circuits
The notable rulings today from Seventh, Ninth and Eleventh Circuits are, I believe, the biggest Booker decisions of the day. But, other circuits have also gotten into the act today with notable sentencing rulings. Like yesterday and the day before, I barely have time to flag these decisions, and I encourage readers to let me know of any important aspects of these rulings:
DC Circuit: US v. McCants, No. 04-3064 (1st Cir. Jan. 13, 2006) (available here)
First Circuit: US v. Hanson, No. 03-1331 (1st Cir. Jan. 13, 2006) (available here)
Fourth Circuit: US v. Fitzgerald, No. 04-4820 (4th Cir. Jan. 13, 2006) (available here)
Eighth Circuit: US v. Wade, No. 05-2081 (8th Cir. Jan. 13, 2006) (available here)
A Booker double-header from the Seventh Circuit
Providing still more weekend reading for Booker fans, the Seventh Circuit today released two Booker opinions of note: US v. Robinson, No. 05-2224 (7th Cir. Jan. 13, 2006) (available here); US v Jordan, No. 05-1296 (7th Cir. Jan. 11, 2006) (available here). These cases — which have names that remind me I really should be spending more time at ESPN and less at USSC — provide a notable bookend to the reasonableness rulings of the Ninth Circuit in Cantrell and the Eleventh Circuit in Williams today.
Here are too-short accounts of two important decisions for folks in the Seventh Circuit.
- In Robinson, the Seventh Circuit emphasizes its views of a district court's sentencing obligations after Booker, and finds the district court "erred as a matter of law by failing to resolve a disputed sentencing fact essential to a properly calculated guidelines range."
- In Jordan, the Seventh Circuit affirms a "significant upward variance from the advisory guidelines range," after finding that the district court's reasons were "quite compelling to satisfy reasonableness review." Among the important aspects of Jordan is the court's clarification that "there is no presumption of unreasonableness that attaches to a sentence that varies from the range."
Ninth Circuit expounds on reasonableness review
In a lengthy opinion that provides a useful overview on post-Booker legal basics, the Ninth Circuit today in US v. Cantrell, No. 03-30562 (9th Cir. Jan. 13, 2006) (available here) expounds at length about the structure of appellate review for reasonableness. Cantrell has a lot of important points, although I do not see any truly ground-breaking facets of the holding. I was especially intrigued by the Cantrell court's footnote identifying a circuit spilt on how to approach reasonableness review:
The law in the circuits that have thus far addressed this issue is somewhat in disarray. The two-part review procedure we outline here, requiring our consideration of alleged Guidelines misapplication errors before we consider the reasonableness of the sentence in light of § 3553(a), is consistent with the procedures used by the Fifth, Sixth, Eighth and Eleventh Circuits....
The Second and D.C. Circuits, however, review claims of error in the district court's application of the Guidelines as one factor in the course of reviewing the reasonableness of a sentence as a whole.... Finally, the Tenth Circuit has held that the reasonableness standard of review applies only to sentences imposed after Booker, under the newly discretionary sentencing scheme.
Eleventh Circuit affirms significant below-guideline sentence
Providing a notable conclusion to an amazing sentencing week, the federal circuit courts today have released yet another set of notable Booker opinions. First of the bunch to catch my eye is the Eleventh Circuit's per curiam work in US v. Williams, No. 05-11594 (11th Cir. Jan. 13, 2006) (available here), in which the court affirms, over the government's appeal, a below guideline sentence in a crack case.
Here are a few passages from an opinion that pays a lot of attention to the provisions of 3553(a) and also provides significant guidance for the exercise of discretion after Booker:
The court concluded its final sentence of 90 months' imprisonment was "sufficient, but not greater than necessary" to punish, deter, and rehabilitate Williams. See 18 U.S.C. § 3553(a). The court repeatedly stated it thought a sentence of 188 months was unreasonable for a crime involving the sale of only $350 of crack cocaine....
This is not a case where the district court imposed a non-Guidelines sentence based solely on its disagreement with the Guidelines. In this case, the district court correctly calculated the Guidelines range and gave specific, valid reasons for sentencing lower than the advisory range. Applying the principles of review in light of the § 3553(a) factors and the reasons given by the district court, the 90- month sentence imposed was reasonable.
Review of post-Booker world in NYLJ
In today's New York Law Journal, Alan Vinegrad and Douglas Bloom have a column discussing the state of the federal sentencing world a year after Booker. Though I believe a subscription is needed to get the full text from here, I can provide their introduction:
On Jan. 12, 2005, the Supreme Court issued its landmark decision in United States v. Booker. While many predicted that the Court would hold that the federal Sentencing Guidelines violated the Sixth Amendment, few predicted the course the Court would take in establishing a remedy.
It has been a year since Justice John Paul Stevens declared the guidelines unconstitutional in one majority opinion and Justice Stephen Breyer rendered them "advisory" in another. In that time, Booker has changed the federal sentencing landscape, with a notable increase in below-the-range sentences. At the same time, however, sentencing procedure has remained largely unchanged.
Related recent posts:
Reasons to watch the end of Alito hearings
With Judge Alito done testifying, one might be inclined to say that the confirmation process is all over but the shouting. But, starting at 9AM today, the final panels of witnesses get their say(starting with Panel IV on this official list), and there are more than a few reasons I'll be watching.
First, my casebook co-author and FSR co-managing editor and friend, Hofstra Prof. Nora Demleitner, will begin the festivities this morning. Nora clerked for Judge Alito in the early 1990s, and I am hopeful she might add a sentencing perspective to the Alito discussion.
Second, the rest of Panel IV is filled with other notable academic heavy hitters: Profs. Erwin Chemerinsky, Anthony Kronman, Charles Fried, Laurence H. Tribe. We can probably predict what we will hear from these folks, but they should be interesting nonetheless.
Third, according to this New York Times article, "to the extent Judge Alito claimed a judicial philosophy, it aligned him with the court's two most conservative members, Justices Antonin Scalia and Clarence Thomas." I wonder if today anyone might comment upon the fact that, if this is true, it may lead to a further expansion of criminal defendants' Fifth and Sixth Amendment rights.
As I explained in a post entitled, "Why some defendants hope Alito is like Scalia," Justice Scalia's constitutional vision sometimes leads him to liberal results in criminal cases, especially as concerns jury trial rights. More generally, reflecting again the current SCOTUS sentencing head-count on Apprendi-Blakely issues, the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule seem even more likely to fall if indeed a Justice Alito will look at these important issues in a manner similar to Justices Scalia and Thomas.
UPDATE: Most of the members of Senate Judiciary Committee have not bothered to come to this morning's hearing. But, valuably, Senator Specter gave a plug to the Federal Sentencing Reporter in his introduction of Nora. And Nora, describing herself as a "left-leaning democrat," made a strong statement in support of Judge Alito and highlighted that Alito's record includes work on sentencing reform through his prior service as an FSR board member and on the Constitution Project's Sentencing Initiative.
FURTHER UPDATE: The Q & A between the senators and members of Panel IV was pretty engaging, and Senator Sessions and Nora has an interesting dialogue about Judge Alito's willingness to review a trial transcript after Nora had suggested in a case during her clerkship that perhaps a conviction should be reversed. Nora's anecdote cast Judge Alito in a quite favorable light, though the story ends, tellingly, with Judge Alito explaining to Nora why he would vote to uphold the conviction.
Nora and a few others in Panel IV brought a few new ideas to the Alito conversation. But, sadly, another confirmation hearing seems likely to conclude, to my chagrin, without any mention of Blakely or Booker (or even Senator Sessions' latest thoughts about crack sentencing).
January 12, 2006
Defenders advise USSC on post-Booker world
Providing a fitting way to review the state of federal sentencing on Booker's birthday, federal public defender representatives have produced an amazing letter to the US Sentencing Commission. The letter, which runs 20+ pages and provides a remarkably refined account (from a defender perspective) of where sentencing now stands and should be going, is available for download below. Any and everyone interested in the post-Booker world and thinking about ways to improve the federal sentencing universe should read this letter closely. Here is its brief introduction:
We understand that the Commission intends to issue a report on federal sentencing since United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). On behalf of the Federal Public and Community Defenders, we write to offer our perspective on post-Booker sentencing, and to suggest issues and questions to be addressed in your report.
A Booker anniversary reading list
A year ago today, the Supreme Court transformed the federal guidelines into advisory sentencing rules by declaring in Booker that "the Sixth Amendment as construed in Blakely does apply to the [federal] Sentencing Guidelines" and that "two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent."
A year later, I am amazed both by how much and how little of an impact this decision has had on federal sentencing realities, and also by how much and how little we really know about its impact. Reviewing some initial blog reactions (here and here), as well as my comments during interviews on PBS and NPR, highlights for me how many of the big post-Booker questions still remain unanswered.
So, what should one get to celebrate the birthday of a case which has everything? I asked my terrific research assistant to assemble a "Booker anniversary reading list" with items that merit review on this auspicious day to help assess where the federal sentencing system has been and where it might be going. This list, which includes key cases and valuable secondary materials (and also, of course, has many unavoidable omissions), can be downloaded here:
DNA confirms guilt of executed Virginia inmate
As detailed in posts at TalkLeft and How Appealing, DNA tests have now confirmed the guilt of Roger Coleman, the defendant executed in Virginia who had proclaimed his innocence in a slaying and rape. Though this interesting development is unlikely to alter the death penalty debate as much as if the DNA test came out the other way, I suspect this finding will be rightly used by death penalty supporters to highlight that death row defendants' claims of innocence must always be examined with skepticism.
UPDATE: This post at NewsBusters notes how the news of Coleman's guilt has disappointed abolitionists, and recalls that "back in 1992 Roger Keith Coleman was Time magazine's cover boy against the death penalty. Time ran the following over a photo of Coleman in chains: 'This Man Might Be Innocent, This Man Is Due To Die'." The post concludes with this fitting query: "In 1992 Time went to bat for this murderer, the question is will they report how wrong they were in next week's print edition."
Around the circuits again
The Fourth Circuit's Clark decision on considering state/federal disparity after Booker (details here) is the big decision of the day. But, other circuits have also celebrated Booker's birthday today with notable sentencing rulings. Like yesterday, I barely have time to flag these decisions, and I encourage readers to let me know of any far-reaching they might see in these rulings:
Third Circuit: US v. Hedgepeth, No. 04-4564 (3d Cir. Jan. 12, 2006) (avialable here)
Fifth Circuit: US v. Arizaga-Acosta, No. 04-20942 (5th Cir. Jan. 12, 2006) (available here)
Ninth Circuit: US v. Allen, No. 05-50078 (9th Cir. Jan. 12, 2006) (available here)
Drugs and racial discrimination
As a powerful follow-up to the recent report by the New Jersey Commission to Review Criminal Sentencing urging reforms to the state's drug sentencing laws (details here and here), the New York Times today has this editorial entitled "Drugs and Racial Discrimination." Here is a selection:
The mandatory sentencing laws that have swept this country since the 70's have clearly done more harm than good. The inmate population has skyrocketed, driving prison costs to bankrupting levels, while having no impact at all on the drug problem. By taking away judicial discretion, the laws have led the country to write off first-time offenders who might have deserved second chances and to imprison addicts who could otherwise have been effectively and less expensively handled through treatment programs.
The laws have also discriminated against members of minority groups, who are disproportionately singled out for harsher mandatory sentences, often because of where they live....
The broader message of [the recent NJ Commission study] is that the country can't just imprison its way out of the drug problem. Coping with this issue — while reducing prison costs — will require a complex set of strategies, including drug abuse treatment and prevention services and increased judicial discretion in sentencing.
Major Fourth Circuit Booker decision on consideration of state/federal disparity
Providing a fitting, though somewhat discouraging, way to celebrate Booker's birthday and its business-as-usual impact on federal sentencing, the Fourth Circuit today has issued a major state/federal disparity ruling in US v. Clark, No. 05-4274 (4th Cir. Jan. 12, 2006) (available here). In Clark, the court finds unreasonable the district court's reliance on state/federal disparity to impose a below guideline sentence. Here is the start of the Clark opinion for the court, per Judge Luttig:
Defendant-appellee, Synina Clark, was convicted in federal court for the federal crime of conspiring to distribute crack cocaine, which crime she committed in Virginia. The United States Sentencing Guidelines provided that she be sentenced to between 46 and 57 months. The district court sentenced Clark to eight months instead, according "great weight" to the fact that Clark would have received a much lower sentence for a comparable state crime in Virginia.
Because the district court either failed to consider or considered improperly the need to avoid unwarranted sentencing disparities among federal defendants as required by 18 U.S.C. § 3553(a)(6), the sentence imposed by the district court is vacated and the case is remanded for resentencing.
Both other judges on the panel in Clark, Judges Motz and King, wrote short separate concurrences. Here is how Judge Motz starts hers:
I agree that the sentence in this case must be vacated and the case remanded for resentencing. I write separately to emphasize that, given the substantial, albeit not unchecked, discretion federal district courts enjoy after United States v. Booker, 125 S. Ct. 738 (2005), they can take into account state sentencing practice in certain cases.
And here is how Judge King gets his opinion started:
Although I agree with the result reached by Judge Luttig, as well as his view that it was inappropriate for the district court, in sentencing Clark, to rely on the sentence she could have received in state court had she been prosecuted there, my analysis of this case is more aligned with that of Judge Motz. I write separately to emphasize my view that, apart from the sentencing court’s improper and erroneous reliance on the sentence Clark could have received in state court, the considerations that informed its sentencing decision were entirely appropriate under 18 U.S.C. § 3553(a).
In light of these concurrences, I find it a bit strange that Judge Luttig ended up authoring the opinion of the court. But, as I have suggested recently, we can find a lot of wisdom in the bard of Bob Dylan: "It ain't no use to sit and wonder why, babe/ It don't matter, anyhow.... Don't think twice, its alright."
UPDATE: I've now had a chance to read Clark closely, and it is first-rate work by all the judges. Even Judge Luttig's opinion, which is most emphatic about the error in considering state sentencing practices, includes the important and valuable caveat that "the consideration of state sentencing practices is not necessarily impermissible per se."
More Alito Q & A on the death penalty
Following up on Senator Feingold's capital punishment questions late yesterday (details here) and action in the Supreme Court (details here and here), Senator Leahy kicked off today's questioning of Justice Alito by asking about the death penalty, innocence, and DNA. SCOTUSblog liveblogging here provides some highlights of an interesting dialogue. This exchange might make the papers:
LEAHY: But you agree with Roberts that the Constitution does not countenance the execution of the innocent?
ALITO: The Constitution is designed to prevent that.
But what I found most fascinating was Senator Leahy's subsequent question to the effect of "Could the Senate Judiciary Committee issue and enforce a subpoena to have a convicted death row defendant come testify before Congress, if they issued it an hour before execution?". Alito sensibly responded that he would have to think about the issue. Bonus points to the staffer who devised this great idea and question.
UPDATE: It appears, from this liveblog, that Senator Feingold returned to these innocence issues at the end of his questions on Thursday morning.
Encouraging reaction to crack sentencing report
I am very pleased to see, especially today on the one-year anniversary of Booker, that the Sentencing Project's valuable new report, "Sentencing with Discretion: Crack Cocaine Sentencing After Booker (discussed here, available here), has generated at least one encouraging congressional reaction. This Wall Street Journal article's discussion of the report includes this extraordinarily heartening passage:
Sen. Jeff Sessions, an Alabama Republican, said he intended to introduce a bill this year that will propose changing the law to reduce the disparity between the amounts of crack cocaine and powder cocaine necessary to give a defendant the same sentence.... "I still believe the guidelines are not appropriate on crack and powder cocaine," said Sen. Sessions. "I think we need to make some improvements there based on the reality of what's going on in the courts of America. This study does seem to indicate that judges would tend more to the 20-to-one ratio rather than 100-to-one."
Media coverage of SCOTUS capital work
Wednesday was a big death penalty day for the Supreme Court, with its notable 5-4 decision to reinstate a death sentence in Sanders (details here) and arguments over innocence issues in House v. Bell (details here). Here are highlights from the media coverage:
Linda Greenhouse's report on the House argument in the NYT is especially compelling, noting that "Justices Antonin Scalia and Stephen G. Breyer were particularly steeped in the details and were deeply engaged on opposite sides of the case, debating it back and forth almost to the exclusion of the lawyers standing before them." Also, House may garner even more attention if DNA tests dispute the guilt of Ronald Coleman, who was executed by Virginia in 1992. (Newspapers also provide Coleman case background here, and notable commentaries here and here.)
More Angelos aftermath
Overshadowed by the Alito hearings, the Tenth Circuit's disconcerting affirmance of the 55-year sentence given to Weldon Angelos (discussed here and here) has drawn relatively little media attention. But this fascinating article in the Salt Lake City Desert News, entitled "Attorneys for Angelos vow to keep fighting sentence," is a must-read for anyone closely following the case. I found quotes from the chief prosecutor to be especially telling:
U.S. Attorney for Utah Paul Warner said unlike the description painted by his defenders, "Weldon Angelos is no choirboy." As for the case going to the U.S. Supreme Court, Warner said the 10th Circuit sided with his office on every aspect of the case and there were no dissenting opinions. "Put a fork in this case because it's done," Warner said....
As for the long list of legal experts backing Angelos, Warner said many are former colleagues and friends that he worked with during the Clinton and Bush administrations. Warner said he feels the only reason they have sided with the defense in the case is because most of them are now in private practice and need to support the side that will benefit them, suggesting some were "paid to sign on to such briefs." "It's their bread and butter now that they're in private practice," Warner said....
Warner said he personally has little sympathy for Angelos, since his office offered Angelos a plea bargain of just over 15 years, which he rejected for taking the case to trial.
New USSC post-Booker data and prosecutorial variations
Perhaps answering my query in this post concerning how the US Sentencing Commission might celebrate Booker's anniversary, late Wednesday the USSC posted on its Booker webpage a new batch of post-Booker sentencing statistics. This latest "Post-Booker Sentencing Update," which can be accessed here, provides an "extensive set of tables and charts presenting data on post-Booker cases received, coded, and edited ... [through] close-of-business on December 21, 2005."
Now including nearly 55,000 post-Booker sentencings, the latest data run has lots of fascinating new information about district-by-district departure and variance rates and on the number/extent of government-sponsored and judge-initial departures. Though there is far too much data for me to take in quickly, I cannot help but notice one key reality over and over again:
Even after Booker, different applications of prosecutorial discretion appear to have a much greater impact on within-guideline sentencing rates and overall sentencing patterns than does the exercise of judicial discretion.
Consider these examples from the district data: in Idaho, prosecutors have sponsored a sentence below the guidelines in nearly 46% of all cases, but in Montana this occurs in just over 11% of all cases; in the Eastern District of Virginia, prosecutors sponsored a sentence below the guidelines in less than 8% of all cases, but in the Western District of Virginia this occurs in over 26% of all cases. (Also of note, the "degree of decrease" in cases involving government-sponsored substantial assistance departures is often far greater than the "degree of decrease" in cases involving judge-initiated departures.)
Critically, I do not mean to suggest that prosecutors are contributing to unwarranted post-Booker sentencing disparity through different applications of prosecutorial discretion in various districts. Differences in case mix and other factors may show that these sorts of variations are all warranted. The key point is that it would be highly improper for anyone (and especially improper for prosecutors) to point to the USSC data showing differing judicial departure rates after Booker and say "aha, this is proof of increased unwarranted disparity." A focus on the prosecutorial data suggests that differing applications of the guidelines can perhaps be entirely justifiable. It also highlights that we really cannot fully assess sentencing rates without also knowing a lot more about sentencing reasons.
Related posts discussing how to consider and interpret USSC data reports:
- The more things change, the more....
- My Booker data "wish list"
- Trying to parse the USSC's latest data
- Anecdotes, data and the USSC's big challenge
January 11, 2006
Feingold questions Alito about death penalty
I predicted in this post that Senators Feingold or Leahy, who brought up the death penalty in the second day of CJ Roberts' confirmation hearings (details here), might bring up capital sentencing issues up during Wednesday's second round of questioning of Judge Alito. And, according to the liveblogging at SCOTUSblog, it seems my prognosticating was spot on: Senator Feingold apparently asked some capital punishment questions.
I do not surmise these portions of the Q & A provided any more drama than the rest of the Alito
snoozefest confirmation hearings. However, according to the liveblog, Alito said that Atkins and Roper "are precedents of the Supreme Court that are entitled to respect." That may be news to a certain Alabama state supreme court justice (details here).
Of course, I am still eagerly waiting for a Senator to even mention Blakely or Booker or the two non-capital sentencing questions I set out here. I suppose I should be grateful that, even with Booker's birthday tomorrow, none of the Senators view non-capital sentencing as an issue worthy of grandstanding about.
UPDATE: At the end of the portion of the heading transcript linked here, you can read the Alito/Feingold exchange about the death penalty. It actually is quite an interesting read for those interested in death penalty topics. I found this concluding segment especially notable (although primarily because of the way Feingold set up his questions):
FEINGOLD: Judge, it sounds like you perhaps have a lesser level of concern about some of these matters [relating to the influence of politics on the administration of the death penalty] than Justice Stevens. The only thing I would note is one of the most striking things about the history of justices that have gone to the court sometimes who are pro death penalty, an amazing number have come to the conclusion that this is the one area where once they get there, they realize that these problems are much more severe than they might have thought before they became Supreme Court justices. Should you be confirmed, I look forward to how you react to these issues after you have become a Supreme Court justice, should you do so.
In the past few years, the Supreme Court has limited the application of the death penalty based on the Eighth Amendment's ban on cruel and unusual punishment. In Atkins v. Virginia, the court ruled that mentally retarded inmates cannot be executed. And in Roper v. Simmons, it held that individuals who were minors when they committed capital crimes cannot be executed as punishment for their actions. Do you agree with these decisions?
ALITO: Those decisions applied the standard that the Supreme Court formulated sometime earlier in determining whether the imposition of the death penalty on particular categories of defendants would violate the Eighth Amendment and they looked to evolving standards of decency. And that is a line of precedent in the Supreme Court, and those are precedents of the Supreme Court, and they're entitled to the respect of stare decisis.
FEINGOLD: Can you just tell me what your general approach to the Eighth Amendment would be in the context of the death penalty?
ALITO: My approach would be to work within the body of precedent that we have. As I mentioned earlier, the Supreme Court has devoted a lot of attention to this issue since 1976 when it held that the death penalty is permissible provided that adequate procedures are implemented by the states so that the decision about who receives the death penalty and who does not is not arbitrary and capricious, so that there is a rationality to the selection process. And the rules in this area are quite complex. But I would work within the body of precedent that is available.
Insightful report and analysis of Booker on crack
The Sentencing Project, which has done ground-breaking work on a range of critical sentencing topics, has now completed an important new report which analyzes post-Booker sentencing through a close look at published decisions in crack cocaine cases. Though only examining a tiny (and perhaps not fully representative) slice of the federal sentencing system, this report provide essential new insights into one significant facet of the post-Booker sentencing world.
The report, which is entitled "Sentencing with Discretion: Crack Cocaine Sentencing After Booker" and can be accessed here, has far too many large and small insights to effectively summarize. Here is the report's nuanced conclusion:
A survey of the sentencing memoranda of the written decisions on crack cocaine cases post-Booker reveals the emergence of a new methodology of judicial deliberation. While not an exhaustive analysis of every post-Booker crack cocaine sentence in the federal system, this report indicates the emergence of a sentencing model that judges are employing which is grounded in rational jurisprudence and thoughtful statutory interpretation. Booker's remedy directing the courts to evaluate all statutorily prescribed factors has had a significant impact on the sentencing landscape. Generally, the courts appear to be granting all such factors equal deference, and the former hierarchical approach, with the Guideline range preeminent, is unable to satisfy the statutory requirements of sentencing. Once the courts consider all factors on equal footing, the memoranda illustrate mounting tension between the Guideline range and the other elements related to the circumstances of the offense and the characteristics of the defendant.
Most notably, the severity of Guideline ranges seemed to many courts to mandate sentences greater than necessary to meet the prescribed goals of sentencing. In addition, the 100-to-1 disparity exacerbated inequalities in enforcement practices that frequently resulted in unwarranted sentencing disparities. For these courts, the solution was to turn to the Commission recommendations for reform of the 100-to-1 ratio and to use these as a framework for sentencing. The post-Booker world has changed the mechanics of crack cocaine sentencing and opened up opportunities for judges to contemplate a host of relevant factors to determine a sentence that is appropriate for the defendant, while still maintaining principles of fairness, equity, and the opportunity for rehabilitation.
Here are links to some prior blog coverage of a few of the decisions discussed in this report:
Another busy sentencing day in the circuits
As if often the case, hump day is proving much too busy for me to keep up with all the sentencing action. In addition to SCOTUS action and notable state supreme court and federal habeas rulings, the federal circuit courts today have bopped out another big batch of notable sentencing opinions. I barely have time to flag these decision, and I encourage readers to let me know of any far-reaching aspects of these rulings:
First Circuit: US v. Walter, No. 04-1812 (1st Cir. Jan. 11, 2006) (available here)
Sixth Circuit: US v. Miller, No. 04-5834 (6th Cir. Jan. 11, 2006) (available here)
Seventh Circuit: US v. Laufle, No. 04-3978 (7th Cir. Jan. 11, 2006) (available here)
Eighth Circuit: US v. Vasquez, No. 05-1644 (8th Cir. Jan. 11, 2006) (available here)
Ninth Circuit says aloha to Hawaii's sentencing system
In what may be the most significant and potentially far-reaching federal habeas decision about a state sentencing system since Blakely, the Ninth Circuit today in Kaua v. Frank, No. 05-15059 (9th Cir. Jan. 11, 2006) (available here), has concluded (despite a contrary opinion from the Hawaii Supreme Court) that an aspect of Hawaii's sentencing system violates the Apprendi-Blakely rule. Here is the opening of the opinion:
Appellants, the State of Hawaii and Clayton Frank, appeal the Hawaii district court's grant of Wayman Kaua's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm. The Hawaii sentencing court found that an extended sentence was necessary to protect the public in Kaua's case. Because the effect of this finding was to increase Kaua's sentence above that authorized by the jury’s guilty verdict, we hold that Apprendi v. New Jersey required a jury to make the finding. In reaching the opposite conclusion, the Hawaii Supreme Court applied a rule — the "intrinsic/extrinsic" analysis — contrary to the rule that Apprendi announced. The district court properly granted the writ.
There are a lot of facets to this Ninth Circuit panel ruling, and it reinforces the Ninth Circuit's tendency to view the prior conviction exception narrowly. Since Hawaii likely won't be too happy about this ruling, I would expect an en banc and/or cert. petition to follow. (I wonder if I can convince my dean that I need to now spend the rest of January doing fieldwork on this case in Maui....)
Delaware Supreme Court finds Ring problem in death sentence
Continuing a day with lots of capital coverage (a SCOTUS decision and argument, policy and clemency debates), I see thanks to How Appealing that the Delaware Supreme Court has reversed a death sentence because of a Ring problem. This press account provides background on the ruling in Capano v. Delaware, No. 131, 2005 (Del. Jan. 11, 2006) (available here). Here's a key passage from the introduction of the majority opinion:
We affirm the judgment of the Superior Court, holding that Capano has failed to establish his ineffective assistance of counsel claims. We reject Capano's claim that the 1991 statute is unconstitutional, but find a constitutional flaw in its application to him under the new rule announced by the United States Supreme Court in Ring. A factual determination of eligibility for the death penalty must be found by a jury because under Ring, eligibility based upon the existence of a statutory aggravating circumstance is no longer merely a sentencing factor but, rather, is an element of the greater offense of capital murder. In Delaware, the elements of any criminal offense, including the greater offense of capital murder, must be found by a unanimous jury. Because Capano's eligibility for the death penalty was decided by the sentencing judge without a unanimous jury finding of a statutory aggravating circumstance, we must vacate his death sentence. This constitutional flaw in the penalty phase does not bar a new penalty hearing under a procedure that comports with constitutional requirements. Accordingly, we remand this matter for a new penalty hearing consistent with Ring and the death penalty statute that was enacted in response to the Ring decision.
SCOTUS reinstates California death sentence in 5-4 vote
As detailed by SCOTUSblog and How Appealing, today the Supreme Court issued its first major death penalty ruling in an argued case: Brown v. Sanders, No. 04-980 (S. Ct. Jan 11, 2005) (available here). Sanders is a 5-4 decision, authored by Justice Scalia, which overturns a Ninth Circuit decision which had reversed a death sentence.
Here is an AP report on the Sanders ruling, and Lyle Denniston summarizes the decision this way: the Court "ruled that a death sentence may sometimes stand even though the jury based it in part on a factor that was later found to be invalid.... If the aggravating factor at issue was part of the process of narrowing the class of individuals subject to the death penalty, the Court said, a sentence is not unconstitutional if that factor is struck down but others remain to serve the narrowing function."
I am pretty sure the specifics of Sanders are unlikely to have a broad impact on capital sentencing realities or review (although I have not yet had a chance to read the opinions closely for significant dicta). But this ruling provides an interesting and telling indication of the likely development of death penalty jurisprudence under the Roberts' court:
First, consider that CJ Roberts' serves as a swing vote in Sanders by joining Justice Scalia's majority opinion to reinstate a death sentence. Though this is only one vote, it suggests that CJ Roberts' votes in capital cases may be quite similar to the votes of his predecessor, CJ Rehnquist.
Second, Sanders is the first 5-4 ruling during Justice O'Connor's peculiar service as a lame duck Justice, and Justice O'Connor likewise serves as a swing vote in Sanders by joining Justice Scalia's majority opinion to reinstate a death sentence. I had an inkling that the Court might try this Term to avoid entirely any 5-4 dispositions in which Justice O'Connor was a deciding vote. Sanders shows that the Court is comfortable with Justice O'Connor casting a decision vote as a lame duck in at least one case. I cannot help but speculate about whether the Court felt that, in a capital case, it was especially inappropriate to delay disposition for a new arrival or perhaps felt that it was inevitable that Justice O'Connor's replacement would not vote any differently in this case.
Third, beyond the transition issues, the 5-4 ruling in this capital case suggests that CJ Roberts will not always be able to bring significantly greater consensus to the Supreme Court's sentencing jurisprudence. (Recall that, as discussed here, an important theme the hearings for nominee John Roberts was whether he might be able to forge more consensus within the Court. Senate Judiciary Committee Chair Arlen Specter, in his prepared opening statement to those hearings, said wishfully that the "next chief justice will have the potential ... to bring consensus to the court which has made a hallmark of 5-4 decisions, many of which are inexplicable.")
Finally, if one wants to be especially cynical or simply believes in foreshadowing, it seems worth noting that the Court handed down Sanders on a day that the Court is hearing a major death penalty innocence case, House v. Bell.
Capital crazes: clemency and reform talk all the rage
With developments in California leading the way, there are notable stories about requests for capital clemency and about proposals for death penalty reforms in many states around the nation:
ABOUT CAPITAL CLEMENCY
- This article from Indiana details that a "death row inmate facing execution in two weeks for the 1981 killings of a Howard County man and his pregnant wife has asked Gov. Mitch Daniels for clemency, arguing that he is innocent."
- This article from North Carolina details that lawyers for Perrie Dyon Simpson, who was sentenced to death for the 1984 strangulation death of an elderly preacher, have asked Gov. Mike Easley to grant clemency in part due to Simpson's "unstable and emotionally deprived childhood."
ABOUT DEATH PENALTY REFORM
- This article from Missouri details the deabte over bills to delay or abolish the death penalty in that state.
- This article from New Hampshire details competing "proposals to expand and end death penalty compete in Legislature."
Interesting sentencing news from California
Thanks to How Appealing, I see that the Los Angeles Times has this fine coverage of interesting sentencing developments:
- On the death penalty, this article details that a proposed "moratorium on California executions passed its first test in the Legislature on Tuesday, despite objections from prosecutors and others who said it was unnecessary and would further traumatize relatives of murder victims."
- On three strikes, this article details that a "new effort to restrict California's controversial three-strikes law to violent offenders has been launched by strange bedfellows — Los Angeles County's top prosecutor and a prominent criminal-defense lawyer."
And, in other notable sentencing news from the Golden State, this San Francisco Chronicle article details that the "state Supreme Court turned down an appeal [Tuesday] by condemned inmate Clarence Ray Allen, who argued that his scheduled execution next week would be cruel and unusual because of his advanced age and health problems." (More background on the Allen case and his clemency request can be found in this recent post, "Too old and sick to die?".)
Death and innocence before SCOTUS
As first previewed here, on Wednesday morning the Supreme Court will hear argument in House v. Bell, another capital case raising innocence-related issues. A very knowledgeable colleague has called House "a hugely important case, the 'sleeper' of this Term perhaps. " The new Habeas Corpus Review blog has this post with a simple summary of the case, and the Christian Science Monitor has this article about House v. Bell and broader innocence issues. Relatedly, PrawfsBlawg has an interesting recent post on "Developments in Innocence."
Notably, it appears that there was no significant discussion of the death penalty during the Q & A with Judge Alito at his confirmation hearings on Tuesday. I predict that Senators Feingold and Leahy, who brought up the death penalty in the second day of CJ Roberts' confirmation hearings (details here), might bring up capital issues up during Wednesday's second round of questioning. And, if past is prologue, we should expect innocence-related issues to be a focal point of at least some of the death penalty dialogue. Of course, as I have explained here and in my prior coverage of Alito on sentencing issues, there are many non-capital sentencing issues that merit attention in the SCOTUS conversations.
UPDATE: SCOTUSblog has this extended post about House v. Bell, which includes links to the parties' breifs.
January 10, 2006
Angelos ruling follow-up
The Tenth Circuit's disappointing, but not surprising, decision to affirm the 55-year sentence given to Weldon Angelos (basics here) is already generating interesting responses. First, these comments to my initial post are quite thoughtful and interesting. In addition, the blog Wash Park Prophet has this fascinating post, titled "Conservatives Embrace Kafka," about the case.
More important for Angelos and others is how the legal system might follow-up the Tenth Circuit's decision. There is a chance, but I think a slim one, that the full 10th Circuit might decide to review the case en banc or even that the Supreme Court might accept the case. Recalling also that Judge Cassell in his sentencing opinion encouraged a reduction in the defendant's sentence to 18 yeas via a presidential grant of clemency, one might even view Angelos as a good case for President Bush to make more robust use of his executive sentencing powers. On this front, I hope no one is holding his or her breath.
DC Circuit weighs in on Booker retroactivity issue
The DC Circuit today in In Re: Zambrano, No. 05-3106a (D.C. Cir. Jan 10, 2006) (available here), had an opportunity to talk about Booker retroactivity in the habeas context. Here is the introduction and conclusion to the careful and clear opinion:
Regulo Zambrano applies for leave to file a second motion to vacate his criminal sentence pursuant to 28 U.S.C. § 2255, contending that the sentence is unconstitutional under United States v. Booker, 125 S. Ct. 738 (2005). We cannot authorize the filing, however, because the Supreme Court has not made Booker retroactive to cases on collateral review....
For these reasons, we conclude that Booker is not a new rule of constitutional law "made retroactive to cases on collateral review by the Supreme Court" within the meaning of 28 U.S.C. § 2255. In so holding, we join all of the circuits that have considered the question. The application for leave to file a second § 2255 motion is denied.
Eleventh Circuit predicts the demise of Almendarez-Torres (though it lives on for now)
Last week, as detailed here, the Eleventh Circuit in US v. Gibson, No. 04-14776 (11th Cir. Jan. 4, 2006) (available here), provided an extended discussion of the "prior conviction" exception to the Apprendi-Blakely rule. Today, in US v. Greer, No. 05-11295 (11th Cir. Jan. 10, 2006) (available here), we get more of the same. The discussion of these issues in Greer are quite interesting. Here are some highlights, which include a notable prediction (and quotation):
The district court thought that even if Almendarez-Torres still permits a judge to determine "the existence of a prior conviction," the principles of Apprendi extended through Booker forbid a judge from determining "the factual nature of a prior conviction." 359 F. Supp. 2d at 1379–80. That distinction between factual existence and factual nature is not justified in view of our decisions describing the non-effect of Apprendi and Booker on the Almendarez-Torres rule. It is not justified by the language or reasoning of those three Supreme Court decisions or by the constitutional principles underlying them....
The district court gave a lot of thought to this issue, and the opinion it published is not without its persuasive points. Realistically viewed, however, the district court's conclusion is less an application of existing precedent than a prediction of what the Supreme Court will hold when it chooses to address this issue in the future. Taking the principles stated in Apprendi and Booker and projecting them forward, the district court envisioned the overruling of at least some of the Almendarez-Torres decision. That prediction probably is correct; the Supreme Court may well overrule Almendarez-Torres. See Shepard v. United States, 125 S. Ct. 1254, 1264 (2005) (Thomas, J., concurring) (counting noses to come up with a majority of justices ready to overrule the Almendarez-Torres decision); cf. Bass v. Bd. of County Comm'rs, 256 F.3d 1095, 1115 (11th Cir. 2001) ("You don't need a weatherman to know which way the wind blows.") (quoting Bob Dylan, Subterranean Homesick Blues, on Bringing it All Back Home (Columbia 1965)).
The problem with lower courts basing decisions on predictions that the Supreme Court will overturn one of its own decisions is that the Supreme Court has repeatedly told us not to do it.
Rulings like Greer provide support for my suggestion that a Senator ought to ask Judge Alito whether, in light of Justice Thomas' concurrence in Shepard, he understands why the Supreme Court has not yet addressed Almendarez-Torres' continuing viability and the status of the "prior conviction" exception to the Apprendi-Blakely rule. Of course, taking inspiration from a well-known legal authority, Judge Alito might answer in song:
It ain't no use to sit and wonder why, babe
It don't matter, anyhow
And it ain't no use to sit and wonder why, babe
If you don't know by now
When your mind crows at the break of law
Look at our docket and we may keep the flaw
You're the reason we keep blabbering on
Don't think twice, it's all right...
It ain't no use in callin' out Blakely, gal
Like you never did before
It ain't no use in callin' out Blakely, gal
They can't hear you any more
I'm a-thinkin' and a-wond'rin' all the way down the road
I once loved a case, by Scalia I'm told
I give juries my heart but judges wanted my soul
But don't think twice, it's all right
January 10, 2006 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (1) | TrackBack
Remarkable new district court ruling on applying Booker
Though the circuit courts have been mighty Booker active of late, it's been a while since I have seen a major district court ruling on Booker. But, much to my pleasure, US District Judge Steven Merryday made yesterday merry through his amazing work in US v. Valencia-Aguirre, No. 8:03-cr-445-T-23EAJ (M.D. Fla. Jan. 9, 2006) (available for download below). Especially as we approach the one-year anniversary of Booker, the far-reaching and thoughtful review of the state of federal sentencing in Valencia-Aguirre makes the decision an absolute must-read.
I am still working my way through the 40 pages of trenchant analysis in Valencia-Aguirre, although I see that there is much discussion of the First Circuit's recent Pho decision (basics here, commentary here and here and here). Indeed, there is even a footnote in Valencia-Aguirre engaging with my critique of Pho.
Here are just a few of the many choice quotes from Judge Merryday's work in Valencia-Aguirre:
The principal task now is to define "reasonable sentence" in a manner calculated not to impinge the (tenuous and strange) requirements of Booker but calculated neither to repair to the rejected and disreputable regime of unfettered discretion nor to deploy a substitute regime that permits an incremental retreat toward disorder and disparity....
The issue for the district court in the first instance is whether the circumstances of the offense at issue and the characteristics of the offender at hand mitigate, aggravate, distinguish, or supersede the presumed but confined circumstances and attributes arrayed illustratively in the guidelines. But, because the guidelines neither fully nor dispositively prescribe a sentence for any particular offender or offense, Booker presents no occasion to announce any attribute of the theoretical guidelines sentence, including whether it is "per se" or "presumptively" or "prima facie" reasonable.
Though I am wowed by many parts of Valencia-Aguirre, I am disappointed to see an obviously thoughtful district judge discussing his sentencing task in terms of determining and imposing a "reasonable sentence." No where does section 3553(a) of the Sentencing Reform Act or the remedial opinion in Booker define the district court's sentencing task in these terms.
As I have stressed before, reasonableness is only an appellate review standard: it is the standard created by Booker that a circuit court is to use when reviewing a sentence that has been appealed. At a defendant's initial sentencing in the district court, there is a higher authority that provides the controlling legal standard: in section 3553(a) of the SRA, Congress has plainly instructed district judges to impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" set forth in 3553(a)(2). Thus, the task Congress has given expressly to district judges is to figure out what sentence is "sufficient, but not greater than necessary" to comply with the SRA's statement of sentencing purposes. Booker simply provided that circuit judges are to assess how district judges do their job by the standard of reasonableness.
Judge Merryday's opinion in Valencia-Aguirre speaks often of congressional "policy" and "will," but yet again we see in this opinion a remarkable disregard of the actual congressional text of 3553(a). (Disconcertingly, Judge Merryday never actually quotes from 3553(a) in his long opinion, and he is dismissive of what Congress has actually enacted as he declares that "Section 3553(a) is fancy default.") Judge Merryday rightly asserts that "a sentencing judge owes the legislative authority the good faith enforcement of the law," but in my view that should start with the actual text of the law that the judge is duty-bound to apply.
Capital moratoriums gaining momentum
On both coasts, momentum is gaining for death penalty moratoriums:
- In New Jersey, as detailed in news accounts here and here, "lawmakers voted yesterday to suspend executions while a task force studies the fairness and costs of imposing the death penalty."
- In California, as detailed in this LA Times article, a "group of current and former prosecutors — including the author of the state's 1978 death penalty initiative and Ira Reiner, whose office sent dozens of people to death row when he was Los Angeles County's district attorney — endorsed a moratorium Monday on executions in California."
As I have explained before here and here, New Jersey has had a de facto (and pricey) moratorium on executions for more than two decades: the state has spent over $250 million on administering its capital punishment system but has not yet executed anyone. But recent events confirm that California does have an operation execution chamber, and this USA Today article discusses the state's next scheduled execution of Clarence Ray Allen. (More background on the Allen case and his clemency request can be found in this recent post, "Too old and sick to die?".)
Tenth Circuit affirms 55-year mandatory minimum sentence in Angelos
In a decision that is not surprising but is still disappointing, the Tenth Circuit has affirmed in US v. Angelos, No. 04-4282 (10th Cir. Jan. 9, 2006) (available here), the sentence given to Weldon Angelos, a first offender who was begrudgingly sentenced to 55 years' imprisonment by Judge Paul Cassell for marijuana sales under federal mandatory minimums. Back in November 2004, the Angelos case made headlines because Judge Cassell wrote a lengthy opinion in which he lamented being compelled to impose a sentence he considered to be cruel, unusual, and irrational. (More background on Judge Cassell's initial remarkable decision is here, and commentary here and here.)
The Tenth Circuit in Angelos concludes "that this is not an 'extraordinary' case in which the sentences at issue are 'grossly disproportionate' to the crimes for which they were imposed." In a remarkable passage, the Tenth Circuit faults Judge Cassell for having "erroneously downplayed the seriousness of Angelos's crimes":
Although the district court concluded that Angelos's sentence was disproportionate to his crimes, we disagree. In our view, the district court failed to accord proper deference to Congress's decision to severely punish criminals who repeatedly possess firearms in connection with drug-trafficking crimes, and erroneously downplayed the seriousness of Angelos's crimes. Although it is true that Angelos had no significant adult criminal history, that appears to have been the result of good fortune rather than Angelos's lack of involvement in criminal activity. The evidence presented by the government at trial clearly established that Angelos was a known gang member who had long used and sold illicit drugs. Further, the government's evidence established that, at the time of his arrest, Angelos was a mid-to-high drug dealer who purchased and in turn sold large quantities of marijuana. In addition, the government's evidence established that Angelos possessed and used a number of firearms, some stolen, to facilitate his drug-dealing activities. Lastly, the evidence established that although Angelos had some involvement in the music industry, he failed to financially profit from that involvement and indeed never reported any positive earnings to the Internal Revenue Service. Thus, the only reasonable inference that could be drawn was that Angelos's sole source of income was his drug-trafficking operations.
To my knowledge, the allegations that Angelos was a tax cheat or possessed stolen guns or sold large quantities of marijuana have never been proven to a jury. But, of course, that would only matter in some alternative universe in which lower federal courts actually take the principles of Blakely seriously. In the Tenth Circuit, apparently a defendant's reputation, and not simply the crimes of conviction, are central to an analysis of the Eighth Amendment's prohibition on cruel and unusual punishments.
Early press coverage of the Tenth Circuit's decision in Angelos is available from the AP and from the Salt Lake Tribune. Though overshadowed by the Alito hearings — and I cannot help but cynically wonder if the timing is not a mere coincidence — the Angelos case will likely get a new round of media attention. But, to echo my recent comments about the dynamics of sentencing reform, I wonder if anyone in the libertarian/conservative crowd, which claims to champion liberty and small government, will speak out against what seems to be an excessively long punishment.
January 9, 2006
Eleventh Circuit confirms within-guideline sentences are reviewable post-Booker
Echoing recent decisions of the Seventh and Eighth Circuits, the Eleventh Circuit today US v. Martinez, No. 04-12706 (11th Cir. Jan. 9, 2006) (available here) clarifies that "that a post-Booker appeal based on the 'unreasonableness' of a sentence, whether within or outside the advisory guidelines range, is an appeal asserting that the sentence was imposed in violation of law pursuant to § 3742(a)(1)." I suspect that, before long, the government will have officially lost this jurisdictional war in every circuit — i.e., I will be surprised if even a single circuit accepts the government's contention that circuit courts lack jurisdiction to review the reasonableness of correctly-calculated within-guideline sentence.
However, though the government lost this jurisdictional war in Martinez, it won the reasonableness battle — i.e., the Eleventh Circuit affirmed the defendant's within-guideline sentence as reasonable. Indeed, it has now been almost a full year since Booker, and to my knowledge we still have not seen one single circuit court decision reversing a correctly-calculated, within-guideline sentence as unreasonable. Unless and until the circuit courts start putting more teeth into reasonableness review, defendants are just claiming Pyrrhic victories when prevailing in the jurisdictional war.
Around the blogosphere (Alito-free)
In addition to the Alito-mania in the blogosphere, I encourage folks to check out these interesting items:
- Mike at Crime & Federalism in this post effectively takes Eugene Volokh to task for his "fuzzy thinking" in this recent post about sentencing discretion. My own reactions to that post can be found here.
- TalkLeft reports here on a "new law signed by President Bush last week" that "makes sending annoying anonymous e-mails or posting annoying messages on websites a federal crime." Perhaps this explains the paucity of comments lately (though, for the record, I am not easily annoyed).
- There is interesting buzz at the ACSblog and blackprof about the possibility that Virginia Governor Mark Warner might, as his term draws to a close, do something about the state's disenfranchisement of hundreds of thousands of felons. (Virginia is one of only three states that categorically and permanently prohibit all ex-felons from voting.)
Sentencing in Staten Island Ferry case does not follow PSR recommendation
As detailed in this AP article, the "pilot at the helm of a Staten Island ferry during a deadly 2003 crash that killed 11 people was sentenced Monday to 18 months in prison. The city's former ferry director was sentenced to one year in prison." As noted in this post, this case has already made sentencing headlines because the federal judge last month released to the public the presentence report in which a senior federal probation officer had recommended sharply reduced prison terms (only three months for the assistant captain and six months for his supervisor).
UPDATE: The New York Times has this compelling account of the sentencing, and notes that "the families seemed somewhat satisfied, perhaps because the sentences were well beyond those in the probation recommendation."
More explication of the post-Booker world from the Circuits
As we approach the one-year anniversary of Booker, the realities of the post-Booker world continue to be filled in by the circuit courts. Last week brought notable decisions from many circuits, and this week is starting with a similar bang:
- The Fifth Circuit today, in US v. Alonzo, No. 05-20130 (5th Cir. Jan. 9, 2006) (available here), addresses the presumption of reasonableness of a guideline sentence. The Fifth Circuit, in addition to providing an effective review of the work of other circuits in this area, concludes "that a sentence within a properly calculated Guideline range is presumptively reasonable," but also "decline[s] to find a properly calculated Guidelines sentence reasonable per se."
- The Seventh Circuit today, in US v. Brock, No. 03-2279 (7th Cir. Jan. 9, 2006) (available here), talks through a range of post-Booker sentencing and appeal issues in the course of rejecting an effort to have a sentence overturned after it was reaffirmed following a limited remand.
Sentencing questions for Judge Alito
The confirmation hearings for Judge Samuel Alito are about to begin, and there is more blogosphere coverage than any human could possibly consume. The Law Librarian Blog has terrific coverage, including this abridged collection of Alito items from members of the Law Professor Blogs Network. TalkLeft has assembled a lot of disparate items in this post, and How Appealing has tons of links, including this post reporting "where to watch and read real-time coverage." My copious prior coverage of Alito and SCOTUS in the crime and sentencing arena are assembled in this recent post.
I expect Alito will be questioned about criminal justice issues more than was John Roberts. But I fear death penalty issues will be explored far more than the many consequential and compelling issues that surround the Supreme Court's recent non-capital sentencing jurisprudence. Nevertheless, it is at least possible we might hear some mention of Blakely and Booker, especially given Judge Alito's recent (and continuing?) work with the Constitution Project's Sentencing Initiative (details here and here).
Since suggesting questions for Judge Alito seems to be all the rage, let me propose two sentencing-related questions that I would like to see posed to the potential future Justice:
- Do you plan to continue your work with the Constitution Project's Sentencing Initiative?
- In light of Justice Thomas' concurrence in Shepard, do you agree that it is important for the Supreme Court to clarify soon Almendarez-Torres' continuing viability and the status of the "prior conviction" exception to the Apprendi-Blakely rule?
Readers are, of course, heartily encouraged to suggest additional questions in the comments.
Interesting state sentencing items in the papers
A few local newspapers have some very interesting sentencing items this morning:
- This Baltimore Sun commentary calls upon Maryland's Commission on Criminal Sentencing Policy to do something about the fact that "low-level, nonviolent drug offenders in Maryland are often imprisoned when they would be better off in treatment, and they are often locked up for longer periods than those who commit more violent crimes."
- This Mongomery Advertiser editorial contends that "Alabama's prison system is broken. Unless the Legislature musters the political will to fix it, the state could soon face a major crisis."
- This Anchorage Daily News story discusses three Alaska bills designed to "get tougher on sex crimes." The article notes that, according to one official, "Alaska has one of the highest rates per capita of sexual offenders in the country."
Framing Pho: keeping the decision from seeming too wrong
After useful dialogues with a lot of smart folks and further reflection, I have come to view and frame the First Circuit's troubling decision crack/powder in Pho (basics here, commentary here and here) in a way that perhaps keeps it from seeming too wrong. As detailed in this post, I have a hard time squaring Pho with the mandates of 3553(a), and this Providence Journal article spotlights the related point that rulings like Pho risk reinstating de facto the mandatory guideline system struck down in Booker. But, to keep Pho from creating too much trouble, the decision should be read as simply a declaration that sentencing courts, even after Booker, should not construct their own "alternative guideline" rules (such as establishing a firm alternative crack/powder ratio).
Even framed this way, I still think Pho is questionable in light of the commands of 3553(a) and Booker. I have a hard time seeing what's "unreasonable" about a sentencing court's decision to follow the US Sentencing Commission's forceful and unanimous declaration that an alternative crack/powder ratio of 20:1 would better serve congressional goals than the 100:1 ratio. Nevertheless, I can understand the instinct of a circuit court believing that, though a district court is authorized not to follow the 100:1 ratio, it should not be in the business of creating and applying a firm "alternative guideline" ratio.
The key point is that Judge Torres on remand, and other judges throughout the country, still retain their critical post-Booker authority to refuse to follow the crack guidelines. Judges just need to articulate their reasons for rejecting the crack penalty levels without creating and applying an "alternative guideline" system. Consequently, it should be sufficient for Judge Torres (and other district judges) to simply say, e.g.: "this case before me evidences all the concerns stressed by the USSC when explaining the ways in which the 100:1 ratio undermines congressional sentencing goals — e.g., this particular crack offense was not accompanied by serious violence, and the amount of drugs involved do not suggest that this offense is likely to produce community harms that are as great as would 100 times more powder cocaine. Ergo, based on the facts of this cases and the mandates of 3553(a), I will not follow the crack guidelines in this case."
- First Circuit rejects reduced crack/powder ratio
- Why Pho seems wrong: what "law" was violated?
- More Pho follow-up
January 8, 2006
How will the USSC be celebrating Booker's birthday?
As noted in this January preview, the coming Thursday marks the one-year anniversary of the Booker decision. As discussed here and here, there are rumors that both Congress and the Justice Department may celebrate this date with Booker fix activity, although the distraction of the Alito hearings and other higher-profile legal happenings might well delay any planned Booker action from Congress and DOJ.
One body which should not be distracted by other legal goings on is the US Sentencing Commission. I cannot help but wonder if the USSC has something in the works for January 12. Notably, the USSC homepage now notes that the Commission has a public meeting scheduled for this coming Wednesday afternoon, right before Booker's anniversary. However, the meeting's announced agenda suggests that nothing Booker special is planned.
For more on what the Commission has been up to lately, check out this interesting Q & A with USSC Chair Ricardo Hinojosa from the December issue of the Third Branch. In the colloquy, Judge Hinojosa reiterates that "this spring" the Commission "plans to release a report on the impact of Booker on federal sentencing."
I hope that the USSC, through the release of more data (suggestions here and here) and fresh analysis, tries to be at the forefront of any Booker fix policy debate that may develops in the months ahead. In addition, as suggested here, since it has now been a full 11 months since the USSC convened a big public hearing to discuss the impact of Blakely and Booker on the federal sentencing system, I think the USSC ought to have another big public meeting about the federal sentencing world after Booker ASAP.
An astute reason to think Alito is neato
With Judge Alito's confirmation hearings now just hours away, the Alito buzz gets louder and louder (just check out all the stories linked at How Appealing). Amidst all the din, I was intrigued to see this op-ed highlighting that "if confirmed by the Senate to sit on the U.S. Supreme Court, Judge Samuel Alito will be the only justice to have served as a U.S. attorney."
Authored by John W. Suthers, a former U.S. attorney for the district of Colorado who currently serves as Colorado attorney general, the op-ed includes these astute observations:
Alito's experience as U.S. attorney, coupled with 15 years on the federal bench, will prove valuable on the Supreme Court. In recent years, there has been an explosion in the number and complexity of federal crimes — an explosion called "startling" by an American Bar Association task force. Not surprisingly, federal criminal law cases now make up a large percentage of the court's docket. In one of the most significant cases of last term, for example, the court set aside the mandatory nature of the federal sentencing guidelines.
Of course, ever since October (see here and here and here), I have been making much of Judge Alito's background as a prosecutor, and I am very interested to see how this background and his other unique criminal law experiences (such as his work as a member of the Constitution Project's bipartisan Sentencing Initiative) will come up during confirmation hearings.
For those gearing up for the hearings next week, I have assembled below much of my coverage of Alito and SCOTUS work in the crime and sentencing arena in this recent post.