June 6, 2006
Lots of Eighth Circuit sentencing action
The Eighth Circuit today, as revealed on its official opinion page, got a lot of notable sentencing work out, with three notable published sentencing rulings, and two unpublished dispositions. For those closely tracking post-Booker reasonableness review (like me), these two rulings seem the most significant:
US v. Dean Little Hawk, No. 04-3666 (8th Cir. June 6, 2006) (available here):
[PUBLISHED] [Gruender, Author, with Murphy and Melloy, Circuit Judges] Criminal case -Sentencing. District court did not err in denying defendant credit for acceptance of responsibility under Guidelines Sec. 3E1.1 as defendant did not accept full responsibility for all of his conduct; sentence in excess of the Guidelines range was not unreasonable in light of the heinous nature of defendant's conduct; the record demonstrated the court followed the applicable law in setting sentence and was not improperly influenced by emotion; failure to include statement of reasons as part of the judgment and commitment order did not require reversal as the sentence was reasonable.
US v. Gregory Krutsinger, Nos. 05-2713 & 05-2781 (8th Cir. June 6, 2006) (available here):
[PUBLISHED] [Melloy, Author, with Riley and Heaney, Circuit Judges] Criminal case - Sentencing. District court did not err in weighing the impact of the Sec. 3553(a)(6) factor - the need to avoid unwarranted sentencing disparities among defendants with similar records who committed similar offenses - in setting sentences.
Krutsinger seems especially noteworthy because the Eighth Circuit ends up affirming two sentences that are quite substantially below the applicable guideline ranges based essentially on concerns about co-defendant disparity.
Any interest in a "Blakely at two" blog forum?
In light of the cert grant in Burton to address Blakely retroactivity, I am thinking it might be fun to convene a blog forum later this month on Blakely two years later.
By the time of Blakely's two-year anniversary (which is June 24, 2006), we ought to have a decision in Recuenco discussing whether Blakely errors can be subject to harmless-error analysis or instead are structural errors. In addition, this summer will be filled with briefing on both the Burton retroactivity issue and Blakely's fate for California in the Cunningham case. With all this on-going Blakely activity, I wold be especially interested to hear various opinions from various folks about the the state and fate of Blakely two years later.
If readers like this idea, let me know in the comments or via e-mail. And send me an e-mail if you would be interested in participating in such a "Blakely at two" blog forum. Thanks.
Press coverage of cert grant in Burton
The MSM has just a little coverage of the cert grant in Burton v. Waddington, the case in which the Supreme Court has decided to take up the issue of Blakely retroactivity (basics here, commentary here). The AP provides this (slightly inaccurate) description of main issue in Burton, and this local story from the Seattle Post Intelligencer provides more background about the facts in the case.
Along with others with whom I have spoken, I continue to scratch my head about why the Supreme Court chose Burton as the case to address Blakely retroactivity. Perhaps the extent of the Blakely-violative enhancement (which produced a 20-year sentence increase) caught the Justices' attention, or perhaps they just wanted to take yet another case from Washington. Whatever the reason for taking Burton, it is going to be a Blakely SCOTUS fall with both Burton and Cunningham coming up for argument.
June 5, 2006
The cert briefs in Burton
Thanks to a couple of kind readers, I now have copies of the cert briefs from Burton v. Waddington, the case in which the Supreme Court has decided to take up the issue of Blakely retroactivity (basics here, commentary here). Relatedly, federal public defender David Porter has some advice for practitioners at the Ninth Circuit Blog:
With this cert. grant and the Court's earlier grant in Whorton v. Bockting (on the issue of Crawford's retroactivity), it is more important than ever to PRESERVE THE ISSUE.
Fifth Circuit reverses another below-guideline sentence as unreasonable
Continuing the reasonableness review trend, the Fifth Circuit today in US v. Armendariz, No. 05-20427 (5th Cir. June 5, 2006) (available here), reverses as unreasonable a below-guideline sentence. Armendariz has a little twist, because the variance only involved the district court's decision not to impose any term of supervised release. Armendariz provides a pretty thorough review of the Fifth Circuit's approach to reasonableness review, and here is a key closing paragraph:
Especially in the case of a sex crime -- and particularly for one involving a child -- the need for deterrence, protecting the public, and providing the offender with necessary correctional treatment are highly relevant factors that should have been effectuated in the sentence that the district court imposed. Because the sentence in this case fails to reflect any of these statutory goals, and because the district court substantially deviated from the advisory Guidelines range without articulating valid, fact-specific reasons for doing so, the sentence is unreasonable insofar as it lacks a term of supervised release.
Of sentencing interest from SSRN
I now see that my latest article, "Conceptualizing Booker," is now available via SSRN at this link. In addition, SSRN has also recently added these new interesting-looking death penalty papers:
- Imposing a Cap on Capital Punishment: A Proposal for Minimizing the Arbitrariness of the Death Penalty by Adam M. Gershowitz
- Preferring White Lives: The Racial Administration of The Death Penalty in Maryland by Michael A. Millemann and Gary W. Christopher
Could they, would they, should they ... declare Blakely retroactive?
I am not sure what I consider more fun right now: speculating why exactly the Supreme Court has decided to take up in Burton v. Waddington the issue of Blakely retroactivity in the absence of any real lower court split (basics here) OR speculating whether the Court has the cohones to declare Blakely retroactive. Bright commentors are already thinking through the merits here, though they make the common mistake of overlooking that Schriro (concerning Ring's retroactivity) only considered the judge/jury aspect of factfinding, and not the additional burden of proof issue. Also, recent changes in personnel make every Blakely-related Justice head-count different now.
Way back when, I did a lot of coverage of Blakely retroactivity issues, and most of my major posts on the topic can be found in this category archive. Here are some highlights for those now eager to read up on this issue:
- Thoughts and holdings on Blakely retroactivity
- Thoughts on Retroactivity and Clemency
- More on Blakely's retroactivity
- Retroactivity contrasts and contentions
- Washington Supreme Court declares Blakely not retroactive
- Ninth Circuit says Blakely not retroactive
- The human face of retroactivity
- Seeking retroactive Blakely "Justice for All"
- More academic arguments for Blakely retroactivity
Justice Alito's second opinion is another unanimous defense win
Because I know more about Speedy Gonzales than I know about the federal Speedy Trial Act, I cannot readily comment on the merits of the Supreme Court's one major criminal justice decision today in Zedner v. US, No. 05-5992 (S. Ct. June 5, 2006)(available here). For the record, Zedner is another unanimous ruling that addresses the waiver of rights and the application of harmless error doctrines under the Speedy Trial Act. It appears that the opinion is driven by statutory interpretation principles (which prompts this notably solo separate opinion by Justice Scalia to lament the Court's reliance on legislative history.)
Particulars aside, Zedner grabs my attention because it is the second opinion authored by Justice Samuel Alito. Notably, both opinions authored to date by Justice Alito (the Court's only former federal prosecutor) have been in criminal cases and have been unanimous victories for the defendant. The other such ruling, as detailed here, came last month in Holmes v. South Carolina.
Though I have not been keeping a close count, my anecdotal impression is that criminal defendants are doing pretty well this year with the addition of the two new Justices (although the really tough criminal cases are still to be decided). Perhaps criminal defendants will start smiling like Speedy Gonzales if the Roberts Court proves over time to be more pro-defendant than was the Rehnquist Court.
Jamie Olis, loss calculations, and white-collar sentencing after Booker
Among many strong posts over at the White Collar Crime Prof Blog, Ellen Podgor notes here that there will (finally!) be some developments in the Jamie Olis resentencing case this week "as experts will present evidence on what the court should use as the loss factor in determining the sentence." Regular readers will recall that Olis' initial (pre-Booker) sentence of 24 years was reversed by the Fifth Circuit based on a mis-calculation of the applicable losses used in the guideline calculation.
Ellen quite rightly spotlights that the Olis case presents "a perfect opportunity for the judge to go beyond numerical calculations." She suggests that a sentencing determination should not "be so heavily dominated by a numerical calculation that bears little resemblance to the actual culpability of the individual." In this separate post, Ellen also discusses "whether white collar offender sentences are being questioned by judges in this post-Booker to a greater degree than other sentences." She suggests that post-Booker sentencing trends might "send a signal to the Congress that these sentences need to be reevaluated."
Returning to the Olis case, there is no doubt that Booker gives Judge Sim Lake a lot more authority to consider a lot more issues other than loss. Indeed, it is arguably silly for excessive time and attention to be devoted to precise loss calculations in a case like Olis' where there are so many other sentencing factors to consider. However, because the Fifth Circuit and other circuits have generally decreed that precise and proper guideline calculations are still essential after Booker, there will surely still be lots of loss discussion in all future white-collar sentencings.
Supreme Court to take up Blakely retroactivity!
Though I was prepared for the big SCOTUS sentencing news to emerge from new opinions, instead the news comes from a cert grant. As reported here at SCOTUSblog:
The Court also agreed to hear a case on the retroactivity of its ruling in Blakely v. Washington, one of a series of rulings limiting criminal sentences when facts have not been found by a jury, but by a judge. The new case is Burton v. Waddington (05-9222). The case tests whether Blakely established a new rule and, if it did, whether it applies retroactively. The Court's grant of review of these issues was something of a surprise, since the Court has repeatedly refused to hear retroactivity claims on the Apprendi line of cases.
One of many ironies here, of course, is that Blakely retroactivity is one of the few major post-Blakely issues that has not generated much of a lower court split in the states or in the federal system. Nevertheless, this issue has long been on my list of post-Blakely issues that SCOTUS should resolve. And I am, of course, please to see SCOTUS take my advice to fill its fallow docket with Blakely and Booker issues.
Right now, I know nothing about the particulars of Burton v. Waddington except that it comes from the Ninth Circuit. Readers are encouraged to fill me in, and I'll be doing a bit of my own digging. Good thing I already have this Apprendi/Blakely Retroactivity category archive collecting my posts on this topic.
June 4, 2006
Noticing different legislative reactions to meth and crack
The June 5th edition of Congressional Quarterly Weekly (which is not available on-line) includes a terrific cover story by Seth Stern entitled "Meth vs. Crack: Different Legislative Approaches." As the title suggests, the article explores the noticeable difference between the legislative reaction to the "crack epidemic" 20 years ago and the "meth epidemic" today. Here are just a few snippets of a long and very informative article [update: that can now be accessed here]:
When Rep. Elijah E. Cummings visits rural communities in the Midwest that have been ravaged by methamphetamine use, he hears stories of despair and damage not unlike those he heard during the crack epidemic of the 1980s.... The similarities exist despite fundamental differences between the populations affected by the two drugs. Meth is used mostly by white people in rural areas, while the epicenters of the crack epidemic were the African-American communities of the inner cities. "If you were to close your eyes and listen to how they talk about the effect on communities, how it breaks up families and drives down property values, you would swear they were in any urban community" during crack's heyday, Cummings says.
What's different this time are the solutions that his congressional colleagues are promoting. The first comprehensive federal anti-meth law, enacted this year, focuses on cutting off the supply of the chemical ingredients used to make the drug — not on toughening punishments for dealers or users. "There seems to be more of an emphasis on shutting down these meth labs and trying to figure out ways to treat these addicts and then get them back into flow of society," says Cummings, a Maryland Democrat. "We don't get for crack or heroin that kind of support for prevention, treatment and rehabilitation."...
Lawmakers in both parties consistently characterize meth addicts in more sympathetic terms than they describe crack addicts, and they are showing far less enthusiasm for imprisoning users than at the height of the crack problem two decades ago.... Although lawmakers almost always rebut the notion, their own rhetoric suggests that race is an essential — albeit, perhaps subconscious — reason they are treating the two drug epidemics differently.
Some sociologists and criminologists say the racial component is obvious. "The difference is, meth is a white drug," says Daniel F. Wilhelm of the Vera Institute of Justice, a New York nonprofit organization that seeks to reduce racially disparate prosecutions. "You don't see any pictures of young black men and women described as the face of meth," said Marc Mauer of the Sentencing Project, which advocates for overhauling sentencing law — a reference to the before-and-after mug shots that sheriffs' offices and lawmakers often display to highlight the physical toll of meth addiction.
[L]istening to the way members of Congress talk about meth users and the images they invoke to portray the problem leaves observers such as Craig Reinarman, a sociology professor at the University of California Santa Cruz convinced that many lawmakers at least talk about drug users differently when they're "drawn from the good old boy segment of our society, the us rather than the them."...
The fascinating dynamics around victims' rights
As detailed by the many posts linked below, I find the entire discussion that surrounds victims' rights and sentencing fascinating. Consequently, I was intrigued by this reference to the upcoming 5th Annual Crime Victim Law & Litigation Conference sponsored by The National Crime Victim Law Institute. Details about this conference are available at this link and here is the intriguing schedule.
At the NCVLI's website, I found this great article about the history and current status of the victims' rights movement. The article effectively spotlights a range of legal, political, and practical issues that surround the recognition and enforcement of victims' rights in our criminal justice system.
Some related posts on victims' rights at sentencing:
Anticipating the SCOTUS summer heat
After a relatively quiet decision day last Tuesday, I noted in this post that the Supreme Court has many (mostly criminal) cases to resolve in June and that the Court needs to start filling up its docket for next Term. It appears that the MSM is all over these same stories:
- Gina Holland has this AP article noting that the "Justices are running well behind in filling their argument calendar for the term that begins in the fall." The article notes that "Chief Justice John Roberts said last fall he would like to see the Supreme Court take up more cases. So far, however, his arrival has had the opposite effect."
- At CNN.com, Bill Mears has a pair of articles (here and here) exploring the work of the Roberts' Court to date and the work ahead the rest of this Term. One article starts this way: "The Supreme Court has shown a surprising degree of unanimity and harmony since Chief Justice John Roberts took over last fall. But recent signs of tension and a rush to finish the court's work by month's end could fray the justices' tenuous show of unity."
Some related posts:
- Looks like a busy June for SCOTUS
- SCOTUS anticipation...
- The criminal justice test for Roberts' rules of order
- Shouldn't Hill be the very first priority for SCOTUS?