January 12, 2006
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.