May 27, 2006
Strong media coverage of Enron sentencing issues
As I predicted, the Enron conviction stories are now starting to turn to sentencing issues. And today both the Houston Chronicle and the AP have terrific stories about some key issues to be raised by the sentencing of Ken Lay and Jeff Skilling. Both stories rightly focus on the extraordinary importance of loss calculations under the federal sentencing guidelines, and I especially liked how Mary Flood starts her great Chronicle piece discussing the federal sentence process:
On their way to sentencing, Ken Lay and Jeff Skilling will next be put under a microscope by a federal probation officer as their attorneys try to convince the judge that they didn't cause shareholders to lose a penny — or at least not many pennies.
Sentencing in the federal courthouse has its own nearly indecipherable procedures. They are so complicated that experienced lawyers often disagree about what will likely happen. They do agree a probation officer will be assigned to look at everything from the men's mental health and family history to financial assets and losses they caused.
Recent related Enron posts:
UPDATE: I now see that Peter Henning at the White Collar Crime Prof Blog has this interesting post entitled "The Parameters of CEO Sentencing." Here are some of Peter's many good insights:
The government's memorandum for [WorldCom CEO Bernie] Ebbers sentencing sets out what I expect will be the likely approach of the Enron Task Force regarding a non-Guidelines analysis based on comparable sentences given in other cases to avoid sentencing "disparity," one of the goals of the Guidelines. Here, the 25-year sentence imposed on Ebbers and the 15 years that the 80-year old [Adelphia CEO John] Rigas received could be argued by the government as the appropriate parameters of a "reasonable" sentence for Lay and Skilling, and prosecutors would be expected to seek a sentence at the higher end of that range.
Dramatic fraud sentencing lead to big upward variance
While I have been thinking a a lot about the Enron sentencings, on Friday in California there was lower profile white-collar sentencing that produced a (record?) high sentence. Here are some details from this Los Angeles Times story:
Orange County money manager James P. Lewis Jr. was sentenced Friday to 30 years in prison for swindling 1,600 investors of $156 million in a Ponzi scheme so calculated and long-running that the judge called it a "crime against humanity." Lewis slumped back in his seat as U.S. District Judge Cormac Carney pronounced the maximum sentence, rejecting pleas by Lewis' lawyer that it would be "a death sentence for a 60-year-old." Lewis turns 60 next month.
Carney calculated that 19 1/2 years in prison would be the most under nonbinding federal sentencing guidelines. But he said those rules "never contemplated this kind of case." For nearly 20 years, the judge noted, Lewis solicited retirement funds from investors who now face the prospect of humiliation and poverty in their senior years. "Obviously, Mr. Lewis has robbed you of security, peace of mind and the pursuit of happiness," Carney said. He added that when Congress set 30 years as the maximum sentence for mail fraud, "I just can't believe they could have conceived of a worse case than this."
The judge's decision was handed down after a four-hour, 20-minute hearing in a packed Santa Ana courtroom filled with weeping testimony from victims and Lewis' family, as well as angry outbursts from some investors. Asked by the judge to address the court, Lewis delivered a rambling speech that began with apologies to his victims, saying he was "full of sorrow, shame and deep remorse."... As the sentence was read, one of Lewis' daughters screamed and burst into tears while many of the 60 other spectators applauded....
Defense attorney Scott M. Schlegel said he would appeal the sentence, saying it was cruel and unusual punishment for a man of Lewis' age.... The judge praised Lewis for giving up his right to a trial, which he said could have overwhelmed the already devastated investors. Lewis pleaded guilty in October to one count of mail fraud and one count of money laundering.
I am pretty confident that, even in the Ninth Circuit, this long sentence will not be declared unconstitutionally cruel and unusual. A closer question, however, might be whether this upward variance from the guideline range to the statutory maximum might be deemed unreasonable. The fact the defendant pleaded guilty, but still got a max sentence that was more than 10 years longer than the guidelines recommended, might provide a basis for claiming unreasonableness.
May 26, 2006
The full lyrics to Short People Got No Prison
Some commentors have been a bit surly in response to my suggestion for finding humor in brewing short sentence brouhaha (background here and here). However, I am so pleased to see Milbarge rise to the occasion with another terrific song parody. The full lyrics here demand a full review, but here's the great start:
Short people got no prison
Short people got no prison
Short people got no prison
The little judge
With his little brain
Wants to spare short people
Big House pain.
They get little slaps
On their little wrists,
And the big D.A.
Is a little pissed.
Victims' rights and the Enron sentencings
I continue to enjoy issue spotting in anticipation for the future sentencings of Ken Lay and Jeff Skilling. I have now moved from first-cut questions and guideline calculations to pondering the role of victims in the Enron sentencing process.
As criminal law gurus should know, a few years ago Congress enacted the Crime Victims' Rights Act (CVRA), which guarantees crime victims eight different rights, including the "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding." 18 U.S.C. § 3771(a)(4). Notably, as detailed here, the Ninth Circuit recently declared that this provision gives crime victims a right (which they can independently enforce) to "allocute at sentencing" in addition to submitting a written impact statement. District Judge Paul Cassell, as detailed here, has likewise ruled in a thoughtful recent opinion that, under the CVRA, "victims of all crimes have a right to personally address the court."
In light of the CVRA, I wonder how many persons can claim to be victims of Lay and Skilling, and how many of those persons may demand to speak at their sentencings. Does every holder of Enron stock and former Enron employee have a statutory basis for claiming a right to speak in person at the Lay and Skilling sentencings? Notably, the CVRA has a provision stating that if "the court finds that the number of crime victims makes it impracticable to accord all of the crime victims" their rights, "the court shall fashion a reasonable procedure to give effect to [the CVRA] that does not unduly complicate or prolong the proceedings."
Against this backdrop, I could imagine some victims being a voice for a shorter prison sentence: e.g., some victims might urge Judge Lake to limit the prison terms for Lay and Skilling so they can earn money after their release to pay restitution to more victims. Recall that Congress has told sentencing courts section 3553(a)(7) to consider "the need to provide restitution to any victims of the offense." Consider here the possible current balance sheet of Michael Milken — who, intriguingly, was a BusinessWeek cover boy just before the Enron scandals, was just recently on the cover of Worth magazine, and has this impressive website.
Some related posts on victims' rights at sentencing:
Short fun to start a long weekend
A judge's decision to sentence a 5-foot-1 man to probation instead of prison for sexually assaulting a child has angered crime victim advocates who say the punishment sends the wrong message. But supporters of short people say it's about time someone recognizes the unique challenges they face.
Rather than try to turn this case into a teaching moment, I thought I would invite everyone to make it a funny moment. Through crime and punishment are no laughing matter, sometimes we all need to lighten up. So, I'll get us started on possible headlines and jokes about this case, while encouraging others to use the comments to chime in:
Possible song title for the case: "Short people got no prison"
Possible movie title for the case: "Honey, I shrunk the sentence" or "Get Shorty (on probation)"
Possible starts for jokes: "Did you hear Lay and Skilling are looking into getting their shins removed?"
Enron guideline calculations (and a fascinating post-Booker question)
In this list of first-cut Enron sentencing questions, I speculated that the (advisory) federal guideline sentences for Ken Lay and Jeff Skilling could be life or at least 360 to life. Confirming my instinct is guideline guru Frank Bowman, who already has prepared a snazzy PowerPoint presentation, entitled "Sentencing Ken Lay & Jeffrey Skilling" that you can access here thanks to Peter Lattman at the WSJ Law Blog. Frank concludes that both Lay and Skilling face guideline recommendations of life sentences based on his calculations (which, notably, do not even include enhancements for obstruction of justice).
In thinking (and talking to others) about the Enron guideline calculations, one especially fascinating post-Booker question has my mind racing: Which version of the guidelines should apply to Lay and Skilling?
I am pretty sure the fraud guidelines were amended significantly to increase sentences in white-collar cases in November 2001 and again in November 2003. Before Booker came along, it was settled law that ex post facto concerns generally required district judges to apply the version of the guidelines in place at the time of the crime. (This old-world reality itself raises some issues, since arguably some offense conduct took place in late 2001.)
After Booker, there is a reasonable argument that ex post facto concerns no longer limit the application of the current guidelines even if they provide for harsher sentences. (In fact, I believe Judge Easterbrook has some dicta in a post-Booker opinion to this effect.) After all, the guidelines are no longer binding law, just intricate advice.
Shouldn't Judge Sim Lake at sentencing consider the most up-to-date advice from the Commission? If the guidelines themselves are so darn reasonable and incorporate all the 3553(a) factors (as a few district judges and many circuit judges like to stress), why should Judge Lake rely on old, out-of-date and less reasonable advice from 2000 or 2001 when sentencing Lay and Skilling? In short, many of the justifications for attentiveness to the guidelines in the post-Booker world seem to call for applying the latest version of the guidelines now that they are only advisory.
So, dear readers, should the 2000 guidelines or the 2001 guidelines or the 2005 guidelines apply to Lay and Skilling? And what version of the guidelines will prosecutors to argue for (given than we can be sure the defense will argue for the most lenient 2000 guidelines to apply)?
Strong Booker work from the Sixth Circuit
Though perhaps I am biased by geographical proximity, today's opinion in US v. Buchanan, No. 05-5544 (6th Cir. May 26, 2006) (available here), has me again thinking that the Sixth Circuit is doing some of the best post-Booker work of any of the circuits. In Buchanan, the Court (per curiam) thoughtfully explains why a guideline sentence was reasonable with an attentiveness to the parsimony command of 3553(a). Here's a choice snippet:
In our view, the [district] court demonstrated a model approach to sentencing in the aftermath of Booker. The judge properly calculated the guidelines range, then carefully considered the appropriateness of that range as applied to the defendant before him in light of the concerns encompassed by the statutory factors. Balancing competing interests, goals and individual characteristics, the court found the recommended guidelines range to be appropriate and chose to sentence Buchanan at the bottom of that range to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in the § 3553(a)(2) factors. 18 U.S.C. § 3553(a).
In challenging that conclusion, Buchanan principally argues that the district court "improperly interpreted the holding of Booker to state that a sentence within the Guideline range was presumptively reasonable" and "treated the Guidelines as presumptively reasonable." To the extent Buchanan means to say that trial judges may not give an irrebuttable presumption of reasonableness to a guidelines sentence, he is right. Such an approach cannot be squared with Booker. But that, quite clearly, is not what the district court did. To the extent Buchanan means to argue that courts of appeals may not give a properly calculated guidelines sentence a "rebuttable presumption of reasonableness," he is wrong, as a recent decision of the court confirms.
Adding to the Buchanan fun is a concurrence by (Ohio State's own) Judge Jeff Sutton. Though here I am certainly biased by knowing Judge Sutton, I still feel confident saying that his discussion of post-Booker sentencing and reasonableness review and the presumption of reasonableness is perhaps the strongest post-Booker work I have seen from a circuit judge in a long time. Every Booker fan must read Judge Sutton's concurrence, and the taste below just provides a small slice of its many virtues:
One can exercise independent judgment while still respecting the Sentencing Commission's judgment about the appropriate sentence for certain types of crime. If the trial court appreciates that the guidelines are advisory, fairly considers the § 3553(a) factors in announcing its sentence and adheres to the other procedural requirements of a reasonable sentence, that should suffice. At some point, there must be a limit to the numbers of ways (and times) the courts of appeals apply reasonableness review that calls for trial judges to conduct new sentencing hearings.
Booker after all empowered district courts, not appellate courts. And sentencing courts, not the Sentencing Commission, retain the ultimate authority within reason to apply the § 3553(a) factors to each criminal defendant. A trial judge can talk about the § 3553(a) factors until he is blue in the face without giving independent judgment to the sentence at hand. And he can reference them briefly and still exercise that judgment. T he end is not process in itself but the substantive goal that trial judges exercise independent and deliberative judgment about each sentence — making these sentences more than an algebraic equation and less than a Rorschak test. While it made considerable sense in the immediate aftermath of Booker for our court to ensure that trial judges were aware of the discretion Booker gave them in this area and to establish some procedural requirements to guide them in exercising that discretion, we ought to return at some point to what perhaps is the most important presumption in this area — giving district courts the benefit of the doubt in reviewing their sentencing determinations.
Needless to say, I am enamored with Judge Sutton's work because his emphasis on "trial judges exercis[ing] independent and deliberative judgment about each sentence" echoes the points I have made in my recent article "Conceptualizing Booker" (available here). In that article, I argue that Booker is "best understood not in term of vindicating the role of juries and the meaning of the Sixth Amendment's jury trial right, but rather in terms of vindicating the role of judges and the meaning of sentencing as a distinct criminal justice enterprise defined and defensible in terms of the exercise of reasoned judgment."
Lethal injection news and notes
The traditional media and the blogosphere provide these interesting lethal injection items:
- The Tennessean, in this editorial entitled "Lethal-injection flaw lingers," complains about the Supreme Court's failure to take up on the merits the basic constitutionality of lethal injection protocols. (The High Court's dodge is discussed here and here.)
- The blog StandDown Texas Project notes here that Texas carried out its tenth lethal injection earlier the week and also now has a new execution date for the one defendant who got a temporary stay because of lethal injection protocol concerns (background here and here).
- The Death Penalty Information Center has this brief recap of executions in 2006. DPIC rightly notes that we are on a slow pace for the year, though the many lethal injection stays are the principle reason (background here and here).
- Paul Butler at blackprof notes here that he recently did an interview for this NPR story which "explores the legal debate behind lethal injection."
- The National Law Journal has up this story about the latest litigation development, entitled "Awaiting High Court Review of Lethal Injection, Circuits Are Divided." It seems to be just a slightly updated version of the story recently run by the NLJ noted here.
Two more notable reasonableness wins for prosecutors
As documented in this post tracking reasonableness review outcomes (which I'll be updating soon), prosecutors have done well in post-Booker appellate review of sentences. Thursday brought two more government wins on reasonableness appeals:
- The Seventh Circuit in US v. Farris, No. 05-1781 (7th Cir. May 25, 2006) (available here) rejects the defendant's reasonableness complaints concerning his 10-year sentence after he "pleaded guilty to two counts of sending threatening communications through the U.S. mail." The case is notable because the district court did not appear to review the 3553(a) factors with particularity, but the appeals panel still found various ways to declare the within-guidelines sentence reasonable.
- The Eighth Circuit in US v. Rogers, No. 05-3184 (8th Cir. May 25, 2006) (available here) continues its pattern of reversing nearly every downward variance it sees. Rogers is interesting because, as detailed here, the Eighth Circuit had previously reversed a sentence of probation based on a large downward departure. This time around, the defendant was given a year in prison for a seemingly minor felon-in-possession crime. But the Eighth Circuit still finds the below-guideline sentence unreasonable:
At the re-sentencing, the district court did not use the factors in § 3553(a) to guide sentencing. Instead, it imposed the lowest sentence it thought might "pass scrutiny" with this court. Rogers argues that at re-sentencing his counsel did review some of the 3553(a) factors. The district court, however, never mentions or acknowledges any of these factors at the re-sentencing. We will not infer a reasoned exercise of discretion from a record that suggests otherwise or is silent.
May 25, 2006
Enron and on and on and on
Unsurprisingly, the mainstream media and the blogosphere is abuzz about the Enron convictions (basics here, early commentary here). Most of the links set forth below involve trial post-mortems; I suspect it will be a few days before folks start to focus on the future sentencing of Ken Lay and Jeff Skilling. But, having now had a chance to talk to a few reporters about the Enron sentencing issues, I am certain that the Lay and Skilling sentencings will be a fascinating (and unique) case-study of the dynamics of the post-Booker world.
Here's just an abridged collection of some blog/MSM coverage of the Enron convictions:
- White Collar Crime Prof Blog
- Professor Bainbridge.com
- The WSJ Law Blog
- Houston Chronicle Enron Trial Watch Blog
- How Appealing (collecting media reports)
- TechBlog (collecting blogger reactions)
Short people got no prison
With apologies to Randy Newman, this AP story of a state sentencing from Nebraska suggests a sex offender may soon be humming a different version of his Short People song. Here are basics from the AP:
A judge said a 5-foot-1 man convicted of sexually assaulting a child was too small to survive in prison, and gave him 10 years of probation instead. His crimes deserved a long sentence, District Judge Kristine Cecava said, but she worried that Richard W. Thompson, 50, would be especially imperiled by prison dangers. "You are a sex offender, and you did it to a child," she said. But, she said, "That doesn't make you a hunter. You do not fit in that category."
Thompson will be electronically monitored the first four months of his probation, and he was told to never be alone with someone under age 18 or date or live with a woman whose children were under 18. Cecava also ordered Thompson to get rid of his pornography. He faces 30 days of jail each year of his probation unless he follows its conditions closely.
"I want control of you until I know you have integrated change into your life," the judge told Thompson. "I truly hope that my bet on you being OK out in society is not misplaced."
Those who know me personally may understand fully why I might not be too critical of judges who give breaks to vertically challenged defendants. And, as one of my great research assistants asked, the tough question is whether a height-based offender characteristic that results in sentence disparity a form of "warranted" or "unwarranted" disparity.
First-cut Enron sentencing questions (and links)
My mind is already racing with thoughts and questions about the sentencing of former Enron chiefs Ken Lay and Jeff Skilling after their convictions today. (Indeed, I have already created a new category archive for Enron sentencing discussions.) Based on just a few minutes reflection, I already have these questions for collective consideration:
- What will be the likely offense level and sentencing range for Lay and Skilling under the federal sentencing guidelines? (By my rough calculation, the guideline sentence could be life or at least 360 to life.)
- Will conduct underlying Skilling's acquittal on nine counts be included in the guideline calculation?
- Assuming the guideline ranges for Lay and Skilling are very high, will the government ask for a guideline sentence?
- Will defense counsel seek a "traditional" departure under the guidelines as well as a variance based on Booker and 3553(a)?
- How might all the Lay and Skilling sentencing talk impact Judge Sim Lake's upcoming resentencing of Jamie Olis?
- Should I give up my day job and offer myself up to Lay and Skilling as a sentencing consultant?
I could go on and on, but this list gets the sentencing talk started and perhaps will prompt some informed readers to weigh in on some of these issues through the comments. Also, for additional food for thought, here are just a few links to some of my prior white-collar sentencing coverage:
- Debating life imprisonment for white-collar offenses
- White-collar sentencing and prison realities
- Pondering white-collar sentencing
- A pattern of white-collar leniency?
- White-collar Booker breaks
- Are the federal guidelines too tough on white-collar offenders?
- Tough sentences for white-collar offenders
Now Enron prosecution is a sentencing (and Booker) story...
As detailed in this AP report, "[f]ormer Enron Corp. chiefs Kenneth Lay and Jeffrey Skilling were convicted Thursday of conspiracy to commit securities and wire fraud.... Lay was convicted on all six counts against him in the trial with Skilling. Skilling was convicted on 19 of the 28 counts against and acquitted on the remaining nine." This means, of course, attention now should turn to how Lay and Skilling will be sentenced in the post-Booker world.
I am quite pleased that Skilling was acquitted on some charges, because his sentencing should shine a bright spotlight on the realities of sentencing based on "acquitted conduct" within the federal sentencing system. As knowledgeable readers realize, Skilling's acquittal on some charges will become largely irrelevant if and when the prosecutors argue that his guideline sentence reflect even acquitted conduct. This CNN report states that "Lay and Skilling could face 20 to 30 years in prison" and reports that sentencing "was set for the week of Sept. 11."
How Appealing has some links to media coverage here, and I'll update with links to other bloggers later today.
Great commentaries on SCOTUS unanimity honeymoon
Thanks to How Appealing, I see these two interesting commentaries today about the early trend of the Roberts Court favoring narrow unanimous opinions:
- Cass Sunstein has this op-ed in the Los Angeles Times entitled "Supreme Court: 9-0 is better than 5-4; Can the chief justice conquer the court's divide by aiming for unanimous rulings instead of swing-voting for the fences?"
- Edward Lazarus has this essay at FindLaw entitled "Is Chief Justice Roberts Correct that Unanimous Supreme Court Opinions Are Inherently Desirable? Why Split Decisions and Passionate Dissents Are Sometimes Better."
Among other good points in these pieces, Lazarus spotlights reasons why "the spate of unanimous rulings [may be] largely ephemeral" during what I will call a SCOTUS unanimity honeymoon in the early days of the Roberts Court. Indeed, as I have noted in posts linked below, the numerous criminal cases still to be over the next month will really test whether we have truly entered a brave new SCOTUS world:
- SCOTUS anticipation...
- The criminal justice test for Roberts' rules of order
- The impact of former prosecutor Alito
- Reading new Justice tea leaves
- A criminal closing act for SCOTUS
- Notable split habeas ruling from SCOTUS
"Death penalty tops list of what Americans find morally acceptable"
The title of this post is the slightly goofy sub-headline from this report about the Gallup Poll's recent Values and Beliefs survey, which seeks to measure "Americans' views of the moral acceptability of 16 issues." Here is a bit more context:
Six of these issues are viewed as morally acceptable by at least 6 in 10 Americans, including the death penalty, which tops the list this year with 71% saying it is morally acceptable. Following behind the death penalty are divorce (67%), buying and wearing fur clothing (62%), medical research using stem cells obtained from human embryos (61%), medical testing on animals (also 61%), and gambling (60%).
For a variety of reasons, I am not sure the Gallup survey is a particularly accurate or effective gauge of the diverse and nuanced opinions that individuals hold concerning the death penalty. Nevertheless, the death penalty finding, especially given other findings in the poll, does confirms my belief that abolitionists who argue for an elimination of the death penalty on moral grounds are quite unlikely to persuade a majority of Americans. Interestingly, as detailed on this page, Gallup surveys reveal that the number of Americans considering the death penalty morally acceptable has increased over the last five years.
May 24, 2006
Another measure of the impact of Apprendi, Blakely and Booker
TaxProf Blog and the ELS Blog are both talking about the most heavily cited court cases inspired by this recent work by Adam Steinman, which concludes with two fascinating charts in an appendix (at pages 143-45) with the 15 most-cited cases by federal courts and tribunals and the 30 most-cited cases by federal and state courts and tribunals. These charts tell lots of interesting tales, but of course I am zeroed in on the sentencing stories.
Not surprisingly, nearly every case in both of the most-cited charts are at least 20 years old and many cases on the top 30 list of combined federal-state cites are criminal procedure classics like Miranda and Terry and Brady. But, tellingly, there is one more recent case cracking the top 30 list of combined federal-state case cites, Apprendi v. New Jersey, even though that decision was a mere five years old when Steinman ran these numbers in June 2005.
In addition, with the help of a few quick Westlaw searches, I think an updated chart of these cite counts might already have both Blakely and Booker cracking the top 30 list of combined federal-state case cites. By these measures, there is now some support for my (over-heated?) claim in this seemingly long-ago Slate piece that Blakely might be "the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."
Further follow-up to Ohio Blakely decision
Apparently news travels slowly to some parts of Ohio. Roughly three months after the Ohio Supreme Court applied Blakely to Ohio's structured sentencing system in Foster (basics here, commentary here and here and here), the Mount Vernon News today runs this front-page article headlined "Ohio Supreme Court decision eliminates sentencing guidelines." The paper today also has this companion article with reactions to the Foster decision from two state sentencing judges.
Curious timing aside, these articles provide an effective review of the impact of Foster and the aftermath in lower courts. In addition, both articles have interesting quotes from the director of the Ohio Criminal Sentencing Commission.
Some related posts on Foster:
- Clearing out the Foster pipeline in Ohio
- Ohio Supreme Court denies reconsideration in Foster
- Ohio Commission response to Foster
- Foster's impact on plea bargains and appeals
- A prosecutor's view on Foster
- A sentencing judge's view on Foster
- Fascinating Foster follow-up on Ohio sentencing reforms
After having disposed of only a "flyspeck" Fourth Amendment case this week (details here), the Supreme Court still has more than a dozen significant criminal justice cases to resolve over the next month. As I explained in this post, many remaining cases will test the new Chief's ability to achieve the consensus that has developed as the hallmark of the Roberts' Court to date.
Though for a while I was most excited about the the Recuenco case concerning whether Blakely errors are structural or may be deemed harmless (details in this archive), after arguments I now may be most interested to see what the Court does with the Hill case about challenges to lethal injection protocols (details in this archive).
Of course, there are many other cases that could be big (or little) for the sentencing world depending upon how the Justices frame and resolve the issues before them. I encourage readers to use the comments to note the SCOTUS rulings they are most eagerly anticipating.
Some related posts:
- The criminal justice test for Roberts' rules of order
- Shouldn't Hill be the very first priority for SCOTUS?
- Reading new Justice tea leaves
- A criminal closing act for SCOTUS
- A capital waste of time?
Latest FSR issue now on-line
The latest issue of the Federal Sentencing Reporter (Volume 18, No. 3), which is entitled "Taking Stock a Year After Booker" and discussed in this post, is now available on-line through the Caliber service at this link. FSR's publisher has kindly made these two articles from the issue available free on-line:
- Lynn Adelman & Jon Deitrich, Disparity: Not a Reason to "Fix" Booker (available here)
- Adam Lamparello, The Unreasonableness of "Reasonableness" Review: Assessing Appellate Sentencing Jurisprudence After Booker (available here)
Details on other recent FSR issues:
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 18.1: State of Blakely in the States
- FSR Issue 17.5: Is a Booker Fix Needed?
- FSR Issue 17.4: The Booker Aftershock
May 23, 2006
Crack sentencing news and notes
Here are two items of interest for folks continuing to follow post-Booker crack/powder cocaine sentencing stories:
1. The First Circuit Federal Defender Blog has this post that provides a link to this brief from the Federal Defender Office for the Eastern District of Pennsylvania that addresses the crack/powder sentencing in a pending Third Circuit case, US v. Ricks. As detailed in this post, I helped out with an amicus brief filed in Ricks.
2. Speaking of amicus efforts, some blog friends alerted me to the interesting news that the Eighth Circuit recently issued this order soliciting amicus briefing on the crack/powder issue. Here is the text of the order in US v. Spears:
Interested persons are invited to file amicus curiae briefs addressing the question raised in the government's cross-appeal, that is, whether it may be reasonable for a district court, post-Booker, to impose a sentence which utilizes a crack cocaine/powder cocaine ratio of less than 100 to 1. Such amicus briefs may be filed on or before Friday, June 2, 2006, without the need to obtain leave of court to do so pursuant to Fed. R. App. P. 29.
I suppose it would be a bit too cheeky for me to file a letter brief with the Eighth Circuit that simply references the following links to these prior posts and amici efforts in this area:
- Amicus brief in crack sentencing appeal
- Another crack at an amicus brief on crack sentencing
- Yet another amicus crack at crack sentencing
- More friendly advice on crack sentencing for Third Circuit
- New ACS issue brief on crack sentencing disparity
- Insightful report and analysis of Booker on crack