June 10, 2006
The latest on the death penalty for child rape
Adam Liptak, the terrific law reporter for the New York Times, shifted from writing yesterday about rock-paper-scissors ADR to writing today about the state trend to make some child rapists eligible for the death penalty. Here is the start of his work today:
Oklahoma became the fifth state to allow the death penalty for sex crimes against children yesterday, a day after South Carolina enacted a similar law. The constitutionality of the new laws is unclear.
The Oklahoma measure, signed into law by Gov. Brad Henry, a Democrat, makes people found guilty of rape and other sex crimes more than once against children younger than 14 eligible for the death penalty. The South Carolina law also requires multiple offenses, but against children under 11. Gov. Mark Sanford, a Republican, said in a statement that the law would "be an incredibly powerful deterrent to offenders that have already been released."
But Richard C. Dieter, executive director of the Death Penalty Information Center, a research group that opposes capital punishment, said the new laws were largely symbolic, would impose disproportionate punishment and were probably unconstitutional.
Related posts on capital punishment for child rape:
Busy Booker times in the circuits
As this post over at SCOTUSblog highlights, the Supreme Court is likely to be making lots of news throughout the rest of June. But, as detailed in the posts listed below, the federal circuit courts have been very active on Booker fronts the last couple weeks.
Notable Booker rulings on reasonableness review:
- Two more reasonableness wins for the government in the First Circuit
- Fifth Circuit reverses another below-guideline sentence as unreasonable
- Strong Booker work from the Sixth Circuit
- Lots of Eighth Circuit sentencing action
- Important Tenth Circuit work on reasonableness
- Eleventh Circuit affirms above-guideline sentence
- Two more notable reasonableness wins for prosecutors
Notable Booker rulings on other issues:
- Major Third Circuit ruling on post-Booker burden of proof
- More on Grier and the post-Booker burden of proof
- Ninth Circuit adds nuance to post-Booker burdens of proof
- Report on Second Circuit crack reasonableness argument
- Crack(ed) dicta from Judge Easterbrook for the Seventh Circuit
Readers interested in circuit Booker action should also check out my (already dated) tracking of reasonableness outcomes, and also regularly check in on all of the federal defender blogs where I have seen lots of commentary on some cases noted above and others.
June 9, 2006
Two more reasonableness wins for the government in the First Circuit
Capping off a busy Booker week in the circuits, the First Circuit on Friday rejected two defendants' arguments that their within-guideline sentences were unreasonable in US v. Navedo-Concepción, No. 05-2301 (1st Cir. June 9, 2006) (available here) and US v. Alvarez-Enciso, No. 05-1941 (1st Cir. June 9, 2006) (available here). Of the two opinions, Navedo-Concepción has the most extensive discussion of reasonableness review (and both make brief mention of the parsimony provision of 3553(a)).
Reduced to its essence, Navedo-Concepción provides an revised account of the First Circuit's approach to post-Booker sentencing as set forth in Jiménez-Beltre, 440 F.3d 514 (1st Cir. 2006). Among the interesting aspects of Navedo-Concepción is a dissent from Judge Torruella, which has this start: "I am concerned that we are, like a glacier in the ice age, inch by slow inch, regressing to the same sentencing posture we assumed before the Supreme Court decided Booker."
A sad commentary on legal buzz
Regular readers likely recognize the name of District Judge Gregory Presnell, who long ago secured a place in my Sentencing Hall of Fame because of his many strong post-Blakely and post-Booker sentencing opinions. (Just some of these opinions are linked below.)
Disappointingly, I have never seen this courageous jurist garnering significant attention in the traditional media or blogosphere for his copious and thoughtful sentencing work. However, a brief order requiring (un)civil lawyers to resolve a discovery dispute by playing rock-paper-scissors, has made Judge Presnell the darling of the New York Times and other media and many in the blogosphere. Appropriately, TChris at TalkLeft in this post shifts the focus back to Judge Presnell's sentencing work.
Some notable sentencing opinions from Judge Presnell:
Important Tenth Circuit work on reasonableness
The Tenth Circuit, perhaps inspired by its pretty new website, has issued two significant decisions addressing reasonableness this week:
- Yesterday, in US v. Cage, No. 05-2079 (10th Cir. June 8, 2006) (available here), the panel concludes that "[b]ecause the facts of this case are not so dramatic as to justify such an extreme divergence from the advisory guidelines range, the district court's sentencing decision was unreasonable." Though yet another reversal of a below-guideline sentence, Cage is a thoughtful opinion which thoroughly discusses reasonableness review (and also cites this blog while expressing concern that "below guidelines-range sentences are [seem to be] treated less deferentially by appellate courts than above guidelines-range sentences"). There is also an interesting concurrence in Cage discussing alternative sentences.
- Earlier this week, in US v. Hernandez-Castillo, No. 05-2157 (10th Cir. June 6, 2006) (available here), the panel in its "Conclusion" section comes as close as possible to declaring a within-guideline sentence unreasonable (but does not reverse because this issue was not raised by the defense). After rejecting a guideline-calculation-error argument, the panel says: "We feel compelled to comment, however, that we have grave misgivings regarding the appropriateness of this 57-month sentence. ... One might consider this the obvious case where an exercise of Booker discretion could mitigate a sentence that does not fit the particular facts of the case, but unfortunately for [the defendant], his lawyer has not challenged the reasonableness of the sentence."
If time permits, I may have more to say about both these interesting rulings over the weekend.
Every step you take, every move you make...
The rock group The Police have a number of songs that might effectively describe the modern trend of requiring GPS tracking of sex offenders: not only is Every Breath You Take a fitting theme song for these developments, so too might be Can't Stand Losing You or even Don't Stand So Close to Me. And, of course, the band's very name is on-point.
This musical interlude is inspired by this recent USA Today article, which effectively explores the "rapidly rising number of states using GPS to monitor convicted sex offenders." Here's a snippet:
"In the last several months, it's been exponential growth," says Steve Chapin, president of Pro-Tech, a Florida-based firm that provides GPS services to 27 statewide agencies. He says his business has doubled in the past three months.
As of January, 13 states had laws requiring or allowing GPS tracking, says the National Conference of State Legislatures. Aside from Wisconsin, governors in at least six states (Arkansas, Georgia, Kansas, Virginia, Washington and Michigan) have signed such bills this year. New Hampshire Gov. John Lynch plans to do so soon. Similar bills are pending elsewhere. "It's the law you can't vote against," says Chapin.
And, as detailed in this AP article, Rhode Island seems on the way toward joining the long list of states turning to GPS to track sex offenders.
June 8, 2006
Scheduled Virginia execution delayed by Governor
As detailed in this AP story, Virginia Governor Tim Kaine tonight "delayed the execution of a triple killer just over an hour before he was scheduled to be put to death amid claims he is mentally retarded and insane. Kaine's decision came moments after the U.S. Supreme Court rejected a request for a stay of execution." My prior post about this case here pondered whether "SCOTUS or Virginia's new governor might step in on Thursday before [the] scheduled evening execution." Now we have our answer.
In order to comply with the law forbidding execution of a mentally incompetent person and to insure just application of Virginia's capital punishment statute, it is important to have current and independent information about Walton's mental condition. It would be imprudent to either proceed with the execution or grant clemency without further review.
Therefore, I have decided to delay Walton's execution date until December 8, 2006, for the purpose of conducting an independent evaluation of his mental condition and competence, on terms and conditions prescribed by this office.
MORE: This Washington Post front-page story provides interesting political background on Gov. Kaine's decision and factual background on Walton's case.
Atkins may still get the benefit of Atkins
As Howard Bashman covers here, the Virginia Supreme Court today granted death row inmate Daryl Atkins a new trial on whether he is mentally retarded and can therefore take advantage of the 2002 Supreme Court ruling that bears his name (and categorically prohibits the execution of mentally retarded defendants under the Eighth Amendment). Here are some details from this AP coverage:
The state Supreme Court ordered the new trial on Atkins' mental status Thursday because the jury had been improperly told Atkins had previously been sentenced to death. "The fact that the jury knew a prior jury had sentenced Atkins to death prejudiced his right to a fair trial on the issue of his mental retardation," Justice Cynthia D. Kinser wrote.
This Virginia Supreme Court opinion is available here, and below I have provided links to prior coverage of the Atkins Atkins saga.
- Will Atkins ultimately prevail with his Atkins claim?
- Will Atkins get the benefit of Atkins?
- Atkins does not get the benefit of Atkins
Bail pending appeal for Nigerian barge defendants
In a ruling that will surely warm the hearts of white-collar defendants (and their lawyers), the Fifth Circuit today ordered that two defendants convicted in conjunction with Enron's so-called Nigerian barge transaction should be released on bail while they appeal their fraud convictions. The WSJ Law Blog here and Tom Kirkendall here have all the basic details.
I cannot find any written opinion concerning this decision on the Fifth Circuit's website, but I would not be surprised if this sort of decision was delivered through simply a one-line order. Of course, I'll post an update if anyone in-the-know provides more details.
Major report on prison failings
As well covered by TalkLeft here and the Washington Post here, the bipartisan Commission on Safety and Abuse in America's Prisons has today released a major policy report on the (sorry) state of prisons in America entitled "Confronting Confinement." As detailed on this webpage, the report covers four areas: (1) dangerous conditions of confinement — violence, poor health care, and inappropriate segregation — that can also endanger corrections officers and the public; (2) the challenges facing labor and management; (3) weak oversight of correctional facilities; and (4) serious flaws in the available data about violence and abuse. The report includes "30 pragmatic recommendations for reform — many of them based on good practices and exemplary leadership in particular correctional facilities around the country."
The full 126-page report can be accessed at this link, and a much shorter summary of findings and recommendations is available here. This press release details the background and efforts of the members of the Commission that produced this important report:
The 20 members of the Commission include Republicans and Democrats, conservatives and liberals, those who run correctional systems and those who litigate on behalf of prisoners, scholars, and individuals with a long history of public service and deep experience in the administration of justice. Beginning in March 2005, the Commission held four public hearings in cities around the country, visited jails and prisons, consulted with current and former corrections officials and a wide range of experts working outside the profession, and conducted a thorough review of available research and data. The Commission is staffed by and funded through the Vera Institute of Justice.
Modern capital concerns in scheduled Virginia execution
As detailed in this Washington Post article, some of the latest modern concerns about the death penalty surround an execution scheduled for Thursday in Virginia. According to the Post story, there is broad agreement that death-row inmate Percy Levar Walton "is mentally retarded and schizophrenic," and mental illness issues have now dovetailed with a challenge to the lethal injection protocol.
But, as detailed in this AP story, the latest lethal injection scrummage has not (yet) stopped Virginia's execution plans:
A federal appeals court on Wednesday overturned a lower court's decision to temporarily halt the execution of a triple killer a day before he was scheduled to die. Earlier in the day, a federal judge said authorities should wait until the U.S. Supreme Court rules in a separate case that challenges the way states execute killers....
U.S. District Judge Rebecca Beach Smith said she had based her ruling Wednesday on the Supreme Court case and on arguments by Percy Walton's attorneys that Virginia's protocols surrounding lethal injection are unconstitutional. But the 4th U.S. Circuit Court of Appeals ruled to overturn Smith's decision, allowing Virginia to move forward with Walton's death sentence according to a spokesman for the attorney general's office.
It will be interesting to see if SCOTUS or Virginia's new governor might step in on Thursday before Walton's scheduled evening execution.
More examination of SCOTUS times
As the Supreme Court Terms winds down, the legal media continues to examine the honeymoon of the Roberts Court and the possible coming disruption of the apparent bliss. The latest entry in this genre is this article from Marcia Coyle at the National Law Journal, entitled "June May Be Test for Roberts Court: Some say justices' unanimity has been reached through narrow opinions, but will trend hold up under wave of heavyweight cases?" Here is my two cents as set forth in this article:
As he looks at the large number of important criminal cases still pending, sentencing scholar Douglas Berman of Ohio State University Michael E. Moritz College of Law wonders to what extent they linger because the Court is debating whether its recent approach in civil cases of achieving unanimity through a narrowing of the scope of the decision is appropriate in the criminal context....
A very narrow decision in Hill v. McDonough, No. 05-8794, a case involving whether a challenge to a lethal-injection method can be brought as a civil rights instead of a habeas claim "won't help sort things out much" in an area that has seen a proliferation of lethal-injection Court challenges, said Berman. And two pending death cases -- House and Kansas v. Marsh, No. 04-1170-also could be resolved narrowly but without much guidance to others, he said. Perhaps these cases have been left to the term's end because the justices are struggling with the desire for consensus and the realization that because so many people are waiting for guidance on these issues, there is an obligation to speak "more broadly and that could lead to a more fractious outcome," said Berman.
Some related posts:
June 7, 2006
Crack(ed) dicta from Judge Easterbrook for the Seventh Circuit
Though Howard Bashman notes here a Seventh Circuit opinion by Judge Frank Easterbrook for other reasons, sentencing fans will want to check out US v. Miller, No. 05-2978 (7th Cir. June 7, 2006) (available here), because it closes with strong dicta asserting that district courts cannot deviate from the 100:1 crack/powder ratio. Citing and following Pho from the First Circuit and Eura from the Fourth Circuit, Judge Easterbrook was obviously interested in seizing the opportunity to reject this type of discretion after Booker.
Notably, in Miller, the government did not appeal the district court's decision to apply a 20:1 sentencing ratio, and thus it would appear that this key post-Booker issue was not fully briefed for the panel. Moreover, the Miller court does not fully grapple with the fact that the 20:1 ratio has been urged by the Sentencing Commission as more in keeping with Congress's stated goals in 3553(a)(2). I wonder if the Seventh Circuit panel's notable judicial sentencing activism will be noticed and assailed by the usual pundits who are quick to jump on sentencing decisions that favor defendants.
Blogs on (sentencing) fire
It has been too long since I gave two deserving blogs a shout out for their sentencing-related work:
- For folks interested in prison over-crowding issues and other interesting insights on non-capital sentencing issues, you have to keep up with Grits for Breakfast.
- For folks interested in death penalty issues and other interesting insights on capital punishment, you have to keep up with Capital Defense Weekly.
Ninth Circuit adds nuance to post-Booker burdens of proof
Post-Booker circuit jurisprudence, like comedy, is all about timing. The day after the Third Circuit does some rote work on burdens of proof for guideline calculations in Grier (basics here, commentary here), the Ninth Circuit today stirs up the pot with US v. Staten, No. 05-30055 (9th Cir. June 7, 2006) (available here). Here is perhaps the single most critical sentence in Staten:
We agree with the government that the clear and convincing standard still obtains for an enhancement with an extremely disproportionate effect, even though the enhancement now results in the calculation of an advisory rather than a mandatory Guidelines sentence.
Among the (funny?) aspects of the timing of Staten, the unanimous Ninth Circuit ruling relies heavily on the late Judge Becker's work for the Third Circuit in Kikumura. As noted here, the split Third Circuit panel in Grier yesterday (gratuitously) declared that Blakely and Booker call for overruling the the Kikumura decision.
This is another key line in Staten that surely will be appearing in many defense sentencing briefs in the weeks and months ahead: "As the concern with accuracy remains critical, so does the concern that enhancements having a drastic impact be determined with particular accuracy." For example, I think Jamie Olis' attorneys ought to make this their mantra as they go about recalculating applicable loss amounts in his upcoming resentencing proceedings.
Encouraging a critical race examination of post-Booker developments
During the Miami FSG conference, one troubling idea kept coming to mind: white defendants seem to be doing better than minority defendants in the post-Booker world.
Notably, the Sentencing Commission's March Booker report asserts that, after Booker, "black offenders are associated with sentences that are 4.9% higher than white offenders." And here are other notable data from post-Booker statistics:
- According to Table 25 in the USSC Booker report, roughly 1 in 5 first offenders who are white are getting a below-guideline sentence after Booker. For black first offenders, the number is roughly 1 in 6; for hispanic first offenders, the number about 1 in 9.
- The theft/fraud category of crimes — crimes which have a statistically higher percentage of have white defendants — have the highest rate of Booker variances according to the most recent post-Booker data.
In addition to these data points from the post-Booker world, consider also these qualitative realities:
- Though the crack-cocaine debate has an obvious racial dimension, circuit rulings rejecting efforts to impose lower crack sentences have not fully grappled with the racial impact of the 100-1 crack/powder ratio.
- As evidenced by this recent (record?) variance, it seems some of the larger Booker breaks have gone to white-collar defendants.
With these comments, I do not mean to make a blanket assertion that racial bias infects the post-Booker world. But I do hope to encourage everyone to examine closely post-Booker developments through the lens of race and to explore critically whether there may be skews in how increased discretion is being applied in the federal sentencing system after Booker.
Some related posts on race and federal sentencing:
- Noticing different legislative reactions to meth and crack
- New ACS issue brief on crack sentencing disparity
- Race and reform
More on Grier and the post-Booker burden of proof
As detailed here, a split Third Circuit panel on Tuesday rejected the claim that the Due Process Clause is offended by using a preponderance standard of proof in guideline calculations. Though the opinions in Grier are long, they are often more laborious than enlightening. By my lights, the opinions fail to bring much nuance to the the modern application of the due process clause in sentencing guideline systems.
Steve Sady in this post over at the Ninth Circuit Blog spotlights that the Third Circuit in Grier failed to explore the Doctrine of Constitutional Avoidance. Relatedly, Grier has little discussion of the implications of the Booker merits majority, and it lacks discussion of the rule or lenity or other important constitutional and statutory principles that ought to inform the due process analysis after Blakely and Booker. (Some of these ideas are set out and linked in this post and this post.)
Moreover, as Peter G. notes in the comments here, the majority opinion in Grier gratuitously declares that Blakely and Booker call for overruling the Third Circuit's 1990 decision in Kikumura, in which the late Judge Becker held that facts which can greatly increase a sentence may require proof by clear and convincing evidence. It is remarkable that the Grier majority found a way to apply Blakely and Booker to reduce defendants' procedural rights at sentencing in the Third Circuit.
That all said, the ugly burden-of-proof work in Grier should not completely eclipse the notable resolution of the appeal. Though the Grier majority approves the application of the civil burden of proof in federal sentencing, it remands a within-guideline sentence because the district court did not adequately explain its application of the 3553(a) factors. Grier thus stands for the important principle that the Third Circuit will not accept a district court's cursory assertion that it has considered 3553(a) factors, even when the court imposes a within-guideline sentence.
June 6, 2006
Around the blogosphere, Supreme Court style
There are lots of interesting items around the blogosphere with a Supreme Court theme:
- Hanno Kaiser at the Law & Society Blog has this extended post on Arizona v. Berger, the recent Arizona Supreme Court decision upholding a first offender's 200-year sentence for downloading child porn (basics here, commentary here).
- Howard Bashman at How Appealing links to this Denver Post article discussing the Colorado Supreme Court's decision to take up a case concerning parolee voting rights.
- Ann Althouse links to this great Atlantic commentary which assails the "high-handedness" of the SCOTUS Justices and suggests reducing their allotment of clerks.
Eleventh Circuit affirms above-guideline sentence
Continuing a busy Booker day in the circuits, the Eleventh Circuit today in US v. Valnor, No. 05-15701 (11th Cir. June 6, 2006) (available here), affirms an above-guideline sentence as reasonable. Here is the money paragraph at the end of the opinion:
Although Valnor disagrees with the district court's assessment of several of the § 3553(a) factors, on this record, we cannot say that the district court's careful consideration of the § 3553(a) factors, as they pertained to Valnor's sentencing calculus, was unreasonable. The district court properly fulfilled its role in considering the Guidelines, but found the Guidelines range to be inadequate to accomplish the statutory goals of providing adequate deterrence and protecting the public from further crimes. Accordingly, we conclude that the district court's 28- month sentence was reasonable.
Major Third Circuit ruling on post-Booker burden of proof
It's time for sentencing fans to load the printer paper and get out the reading glasses: today the Third Circuit in US v. Grier, No. 05-1698 (3d Cir. June 6, 2006) (available here) gives us 68 pages on the appropriate post-Booker burden of proof. Writing for the Grier majority in a split 2-1 opinion, Circuit Judge Fisher introduces the opinion this way:
The Supreme Court held in United States v. Booker, 543 U.S. 220 (2005), that facts relevant to the advisory United States Sentencing Guidelines do not implicate the constitutional right to trial by jury. We now confirm that these facts likewise do not implicate the constitutional right to proof beyond a reasonable doubt.
Judge Sloviter authors a lengthy dissent in Grier, which starts this way:
I respectfully dissent from the opinion of the majority. In treating the finding of an aggravated assault as a sentencing factor that may permissibly be used to enhance Grier's sentence, the majority has abrogated the Fifth Amendment of the United States Constitution. The Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), did not discuss the Fifth Amendment nor did it suggest that it had no role in sentencing: certainly the majority, as an inferior court, has no authority to abnegate one of the most important, if not the most important, of the rights that the Constitution assures criminal defendants.
Regular readers know that this burden-of-proof issue is one I have been interested in right after Booker was handed down (and this is further evidenced by some of the posts linked below). Thus, after I have some time to take in the Third Circuit's work (perhaps on the links this afternoon), I am sure I will have additional thoughts and comments to post. In the meantime, readers are highly encouraged to use the comments for reactions.
Some related posts on burdens of proof after Booker:
- Burdens of proof and a new due process of sentencing
- More about beyond a reasonable doubt at sentencing
- Further reflections on burdens of proof and acquitted conduct
- Requiring proof beyond a reasonable doubt in any legislative fix
- Seventh Circuit says reliance on acquitted conduct still okay after Booker
- A post-Booker burden of proof primer
- In praise of Okai and its burden of proof insights
- Judge Kopf takes on Judge Bataillon on the burden of proof
- Revised draft of Pondering Modern Sentencing Process