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.