June 17, 2006
On innocence and the death penalty
Following up on the Supreme Court's House ruling (basics here, commentary here), Professor David Dow has this interesting New York Times op-ed suggesting (as I have in some prior posts linked below) that death penalty opponents ought not give undue attention to innocence concerns. Here is a snippet:
For too many years now, though, death penalty opponents have seized on the nightmare of executing an innocent man as a tactic to erode support for capital punishment in America. Innocence is a distraction. Most people on death row are like Roger Coleman, not Paul House, which is to say that most people on death row did what the state said they did. But that does not mean they should be executed....
Of the 50 or so death row inmates I have represented, I have serious doubts about the guilt of three or four — that is, 6 to 8 percent, about what scholars estimate to be the percentage of innocent people on death row. In 98 percent of the cases, however, in 49 out of 50, there were appalling violations of legal principles: prosecutors struck jurors based on their race; the police hid or manufactured evidence; prosecutors reached secret deals with jailhouse snitches; lab analysts misrepresented forensic results....
The House case will make it hard for abolitionists to shift their focus from the question of innocence, but that is what they ought to do. They ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.
Responding to this op-ed, Ann Althouse and her commentors have a lot of interesting thoughts here.
Some related posts:
Around the blogosphere
Lots of good sentencing-related weekend reading around the blogosphere:
- Capital Defense Weekly has a lot of interesting new posts, including this list of links to other death penalty coverage around the blogosphere.
- Dan Filler at Concurring Opinions has this interesting post about jury overrides in death cases.
- Spencer Overton at blackprof has this notable post about Mark Warner's felony disenfranchisement record.
- White Collar Crime Prof Blog here and How Appealing here link and discuss various Enron sentencing issues.
How high can the mandatories go?
Weldon Angelos' federal sentencing made headlines because of the application of a harsh 55-year mandatory minimum term (background here), and I reported here on an Arizona case in which a 200-year term was required by state mandatory minimum terms. But, as detailed in this article, a federal sentencing in Baltimore on Friday might set a new record for a mandatory minimum sentencing term:
A disgraced Baltimore police detective was sentenced this morning to 315 years in prison for shaking down drug dealers, but the federal judge called the term, which he had to impose by law, "inappropriate" and said it should be reviewed by the Supreme Court. Detective William A. King, 35, showed little reaction as U.S. District Judge J. Frederick Motz imposed the lengthy prison sentence....
In April, a jury convicted King and his former partner, Antonio L. Murray, on drug and gun charges that carried stiff, mandatory penalties required by Congress. King was convicted of several counts of robbing drug dealers, which were considered armed robberies because King had a weapon -- his police-issued gun -- at his side. The first gun count carries a mandatory five-year sentence; each subsequent count carries a mandatory 25-year sentence, to be served consecutively, hence the lengthy prison term....
Motz said that the U.S. Supreme Court needed to review the case because he believes the law has been misinterpreted in how the 25-year gun sentences are handed out. The judge said the 25-year penalties should only apply to those who re-offend after their first conviction. King, he said, should not have been required to face so many consecutive 25-year sentences within the same case, which is his first conviction.
UPDATE: The Baltimore Sun now has this follow-up article on Judge Motz's criticisms of the federal sentencing system while imposing this sentence. Here in a snippet:
"There is something fundamental wrong with this sentence," Motz said, comparing his condition to the dilemma of Pontius Pilate, the biblical judge of Jesus who expressed doubts but imposed a death sentence anyway. Appearing anguished and rubbing his face, Motz described the sentence as "absolutely disproportionate to the wrong that was committed, although the wrong that was committed was a very serious one."...
Motz said that the U.S. Supreme Court needed to review the case because he believes the justices earlier misinterpreted how the 25-year gun sentences should be meted out. The judge said the 25-year penalties should only apply to those who re-offend after their first conviction. Therefore King, Motz said, should not have been required to face so many consecutive 25-year sentences within the same case, which is his first conviction.
King's lawyer, Edward Smith Jr., said he plans to appeal the conviction and sentence. "He has a lot of courage," Smith said of Motz's comments. King was so convinced that he could win at trial that he turned down a plea bargain for 10 years in prison, according to Smith.
Though in this political climate, I suppose it does take some courage to speak out against the federal sentencing system. But, by my lights, a true courage here could have produced a ruling that, under principles of constitutional doubt, the gun sentencing enhancements should not be fully applied in this sort of case.
More on acquitted conduct sentencing in Campbell case
Earlier this week, as noted in this post, former Atlanta Mayor Bill Campbell sentenced based in part of the consideration of conduct relating to corruption charges on which Campbell had been acquitted at trial. My post on the acquitted conduct issue generated this thoughtful comment debate, and now the ALM Daily Report has this follow-up article noting the buzz around the Campbell sentencing. Here's a snippet:
At issue is that portion of U.S. District Judge Richard W. Story's sentence that was based on his finding that Campbell had taken $55,000 in illegal bribes from a city contractor. Story used a preponderance-of-the-evidence standard, but in March, using the more stringent beyond-a-reasonable-doubt standard, a jury had acquitted Campbell of bribery charges following an eight-week trial.
A Weblog on sentencing issues maintained by Douglas Berman, a law school professor at Ohio State University, was buzzing with activity over the Campbell sentence this week. Visitors weighed in with the same arguments that have been lobbed back and forth since the federal sentencing guidelines were promulgated in 1987.
June 16, 2006
The high price of going to trial
Experienced defenders know that the federal sentencing system will often punish defendants harshly for exercising the right to trial rather than pleading guilty. As detailed in this article, this reality was borne out again in this week's sentencing of a defendant who was a minor figure in the HealthSouth fraud:
A federal judge Thursday gave a minor figure in the $2.6 billion HealthSouth Corp. fraud the most severe sentence handed down in the case, sending Hannibal "Sonny" Crumpler to prison for eight years. U.S. District Court Judge Virginia Emerson Hopkins could have given Crumpler up to 15 years in prison after he became the only person convicted by a jury of participating in the HealthSouth fraud in a trial last November....
Fifteen former executives pleaded guilty for their roles in the fraud and received sentences ranging from probation to five years in prison....
U.S. Attorney Alice Martin ... said she was disappointed with the sentence, believing the judge should have given Crumpler the full 15 years to help deter other white-collar crime. Hopkins acknowledged she did not consider Crumpler a major player in the HealthSouth fraud, saying she would not label him a first-, second- or third-tier conspirator.
Given the much lighter sentences received by the true "first-, second- and third-tier conspirators" who cooperated, U.S. Attorney Alice Martin would have been more candid if she had said she was disappointed with the sentence because a longer sentence help deter others from exercising their constitutional right to trial.
On the other side of the Hill
The ABA e-Journal report has this interesting article following up on the Supreme Court's Hill lethal injection ruling earlier this week. The article is entitled "More Inmates Likely to Contest Lethal Injection: Tennessee Case May Be Next After High Court Ruling," are here is part of the coverage:
The justices granted perhaps thousands of death row inmates a significant new avenue for collateral appeal considerably less restrictive than the usual petition for a writ of habeas corpus — which is how the 11th U.S. Circuit Court of Appeals in Atlanta treated Hill's action in getting rid of it. But the justices also left the lower courts with precious little guidance on how to determine which section 1983 cases to hear and which ones to send packing.
As a practical matter, the Hill court did little more than expand the universe of death-sentenced prisoners eligible to file section 1983 actions. "Thank you," says Carolyn M. Snurkowski, the Florida assistant attorney general who argued Hill, in response to a question about the decision’s impact. "That's what I've been telling people."
But in terms of scale, Hill could be huge. The court previously had allowed a section 1983 challenge only in a case where Alabama prison officials wanted to use a special invasive procedure, called a "cut down," to administer the lethal chemicals to an inmate whose veins had collapsed from drug use. Nelson v. Campbell, 541 U.S. 637 (2004). By extending the possibility of a civil rights suit to routine procedures, such as the one at issue in Hill, the court in effect invited nearly all the nation's 3,370 death row inmates to vie for another day in court. Of the 38 states with the death penalty, 37 use lethal injection, as do the federal government and the military.
Recent related posts:
- A brief account of House and Hill
- A Hill of beans
- Insights on Hill from THE expert
- Lethal injection litigation inspection
- A bit of lethal injection history
- How could (and should) Congress clean up the lethal injection mess?
Eighth Circuit affirms yet another above-guideline sentence (and Sixth Circuit, too)
Dog bites man, again: the Eighth Circuit today affirms yet another above-guideline sentence in US v. Hacker, No. 05-2709 (8th Cir. June 16, 2006) (available here). As I recall, the Eighth Circuit has said an extraordinary justification is need for any guideline variation of 50% or more. But in Hacker, the court concludes that a sentence which amounted to a 56% increase over the maximum guidelines range was not unreasonable or an abuse of the court's discretion.
UPDATE: I now also see that the Sixth Circuit today in US v. Matheny, No. 05-6282 (6th Cir. June 16, 2006) (available here) affirmed as reasonable a sentence that was slighly above the applicable guideline range.
Article about above-guideline federal sentences
Though I cannot provide a link, I can still encourage everyone to get access to today's New York Law Journal where Alan Vinegrad and Douglas Bloom have an article highlighting the increase in above-the-range sentences after Booker. The article provides a few examples of cases in which judges went above the applicable guideline range citing Booker or 3553(a).
Second Circuit reverses below-guideline sentence
The Second Circuit on Wednesday in US v. Rattoballi, No. 05-1562 (2d Cir. June 15, 2006) (available here), thoughtfully and thoroughly discusses reasonableness review at length in the course of reversing a below-guideline sentence. Here are just a few of the many notable passages in Rattoballi:
[O]n appellate review, we will view as inherently suspect a non-Guidelines sentence that rests primarily upon factors that are not unique or personal to a particular defendant, but instead reflects attributes common to all defendants. Disparate sentences prompted the passage of the Sentencing Reform Act and remain its principal concern....
A non-Guidelines sentence that a district court imposes in reliance on factors incompatible with the Commission’s policy statements may be deemed substantively unreasonable in the absence of persuasive explanation as to why the sentence actually comports with the § 3553(a) factors....
A sentence must reflect consideration of the balance of the § 3553(a) factors; unjustified reliance upon any one factor is a symptom of an unreasonable sentence.
UPDATE: Yuangchung Lee has a long, critical post of this decision here at the Second Circuit Blog. Here is how it starts and ends:
UPDATE: Yuangchung Lee has a long, critical post of this decision here at the Second Circuit Blog. Here is how it starts and ends:
Someone please wake us up: We read this opinion and had a nightmare that we lived either in another Circuit or in an alternate universe in which Booker had never happened. In an extraordinary act of law-making that flouts Booker and contradicts core post-Booker caselaw in the Second Circuit, including Crosby and Fernandez, C.J. Walker, along with former and future C.J.s Winter and Jacobs, writes as if on a clean slate (and as if this were the 7th or 8th Circuits rather than the 2nd) and overturns, for the first time since Booker was decided 17 months ago, a sentence as substantively unreasonable (i.e., just too long). Cynics will not be surprised that this occurred on a Government appeal of a below-the-range sentence, rather than a defendant's appeal of an above-the-range sentence....
As stated at the outset, en banc rehearing of this decision is appropriate in light of its inconsistency with cases such as Crosby and Fernandez. The decision's seeming resurrection of the mandatory Guidelines regime also, of course, contradicts Justice Stevens's merits majority opinion in Booker.
June 15, 2006
Interesting Feeney Amendment ruling from Third Circuit
Though the criminal justice headlines from SCOTUS today involved the Fourth Amendment and the exclusionary rule (see posts from SCOTUSblog and Orin Kerr), the Third Circuit has provided sentencing fun today through its ruling in US v. Coleman, No. 05-1348 (3d Cir. June 15, 2006) (available here). In Coleman, as detailed here by How Appealing, the court "rejects a federal criminal defendant's argument that the entire Sentencing Guidelines system is unconstitutional because the Feeney Amendment allows the President to appoint to the Sentencing Commission only members of the Executive Branch."
In the Coleman opinion, the Third Circuit says that the defendant's "argument that the Feeney Amendment unconstitutionally allows the President to control sentencing might have been persuasive while the Guidelines were still mandatory, [but] it is misplaced under the now-advisory system."
Another big SCOTUS sentencing morning?
The Supreme Court is expected to issue more opinions later this morning. I wonder whether there might be additional sentencing fireworks like those earlier this week (basics here, commentary assembled here).
Because I will be on the road and off-line, I suspect there might be rulings in these cases I am watching especially closely. I am sure SCOTUSblog and How Appealing with have all the legal news as it breaks, and I hope to have some on-line commentary time later this afternoon.
So much to do, so little time...
Though the title of this post certainly describes my life most days, it also is a fitting moniker for this week's filing by Jeff Skilling's lawyers asking for a "continuance of 35 to 45 days of all sentencing dates" in the initial schedule set by Judge Sim Lake following last month's Enron convictions. Peter Henning here at the White Collar Crime Prof Blog provides some highlights from the filing, and also provides access here to the seven-page filing. The filing is quite interesting in part because it flags a number of the key issues raised by Skilling's sentencing (many of which I have previously discussed in this Enron sentencing archive).
June 14, 2006
On the road again...
Proving yet again that I have my priorities straight, I am soon hitting on the road to visit my dad (and have quality time on a golf course). Blogging may be light through Father's Day, though my inner law geek will probably force me on-line if we get another big SCOTUS day on Thursday. For fellow law geeks, here is a review of some highlights from what has already been a hot sentencing month:
SUPREME COURT DEVELOPMENTS AND COMMENTARY
- Supreme Court to take up Blakely retroactivity!
- Could they, would they, should they ... declare Blakely retroactive?
- A brief account of House and Hill
- A Hill of beans
- Insights on Hill from THE expert
- Some insider perspective on House
- A cert grant as the biggest(?) SCOTUS sentencing news
- The "prior conviction" sparring, Harris and Roe v. Wade
BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY
- Busy Booker times in the circuits
- A Cagey view of Booker
- Strong Booker work from the Sixth Circuit
- Tracking reasonableness review outcomes
- Booker in the Circuits index
OTHER BOOKER DEVELOPMENTS AND COMMENTARY
- Sensenbrenner Booker fix drafted
- New Booker data shows more within-guideline sentences
- More juicy data from the USSC
- Reflection on a (record?) variance
- Jamie Olis, loss calculations, and white-collar sentencing after Booker
- Encouraging a critical race examination of post-Booker developments
SENTENCING PROCEDURE DEVELOPMENTS AND COMMENTARY
- Former Altanta mayor sentence increased on acquitted conduct
- 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
DEATH PENALTY SENTENCING DEVELOPMENTS AND COMMENTARY
- ABA calls for death penalty moratorium in Alabama
- Atkins may still get the benefit of Atkins
- Scheduled Virginia execution delayed by Governor
DRUG SENTENCING DEVELOPMENTS AND COMMENTARY
- Crackin' good arguments, Gromit!
- Another crackin' argument report
- Reflecting 20 years after the crack panic
- Noticing different legislative reactions to meth and crack
- Significant meth report from The Sentencing Project
SEX OFFENDER SENTENCING DEVELOPMENTS AND COMMENTARY
- The latest on the death penalty for child rape
- Every step you take, every move you make...
- New litigation over sex offender restriction
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Crime rates jump according to FBI stats
- Michigan Supreme Court dodges application of Blakely
- The sorry state of California's prisons
- Major report on prison failings
Another crackin' argument report
As detailed in this recent animated post, Professor Mark Osler had another chance today to argue, in an amicus capacity, that it is reasonable for a district judge not to follow the guidelines' 100-1 crack-powder ratio. Today the argument was in an Eighth Circuit case, Spears (previously discussed here), and below are portions of a report Mark's research assistant Dustin Benham sent me after the oral argument:
The case, Spears v. United States involved a judge who varied from the 100:1 powder/crack cocaine ratio and instead adopted the 20:1 rationale from United States v. Perry. The panel, composed of Judges Bye, Lay, and Riley, was engaged and informed. Judge Riley was particularly interested in whether individualized consideration occurred in the case. Judge Bye paid special attention to the source of the 20:1 ratio in Perry - the 2002 Sentencing Commission report. He noted that although Congress never acted on the report, it has always paid special deference to the Sentencing Commission's recommendations. He pressed the government to explain how the report itself or its recommendations were unreasonable. The government was unable to directly answer the question.
Prof. Osler argued that there is no support in law for the government's position and that judges have discretion to vary after Booker. Judge Riley, in the final question, asked how the 100:1 ratio is part of the law. Prof. Osler had a two part reply. First, the 100:1 ratio is reflected in the statutory mandatory minimums which were followed in this case. Second, it is part of the guidelines which, after Booker, are advisory and are to be considered. The sentencing judge in Spears, by adopting the rationale of Perry, considered and rejected the ratio, thus satisfying section 3553(a) as rewritten by the Supreme Court in Booker.
Joyfully, the Eighth Circuit posts audio clips of argument on-line at this link. Everyone should be able to hear the Spears argument for themselves before long.
If you still like guideline minutae frim the circuits...
then you will want to be sure to check out the extended opinions today on various guideline sentencing particulars from the Fourth Circuit in US v. Allen, No. 04-4088 (4th Cir. June 14, 2006) (available here) (discussing the relationship between motions under 5K1.1 and 3553(e)), and from the Seventh Circuit in US v. Wasz, No. 05-1463 (7th Cir. June 14, 2006) (available here) (discussing loss calculations and leadership enhancements).
Significant meth report from The Sentencing Project
I just received an e-mail from The Sentencing Project about a major new study that it claims disproves "the popular belief that there exists a growing methamphetamine epidemic within the United States." According to the e-mail, this report, entitled "The Next Big Thing? Methamphetamine in the United States" and available at this link, "reveals that methamphetamine is actually one of the rarest of illegal drugs used, with its use declining among youth, stabilizing among adults and demonstrating no increase in first-time users."
According to the e-mail, important findings of this new meth report include:
- Methamphetamine is among the least commonly used drugs.
- Methamphetamine remains a rare occurrence throughout most of the country and is not indicative of a nationwide problem.
- Methamphetamine use is declining among our nation's youth.
- Drug treatment programs are effective in combating methamphetamine addictions.
US mayors pass resolution opposing mandatory minimum drug sentences
As detailed in this notice, last week the "US Conference of Mayors, meeting at its annual convention in Las Vegas this week, passed a resolution opposing mandatory minimum sentences for drug crimes and called for "fair and effective" sentencing policies." The resolution, which can be accessed here (at p. 47 of the pdf), was sponsored by Salt Lake City mayor Rocky Anderson and notes that this year marks the 20th anniversary of the establishment a the first slate of modern federal mandatory minimums for drug sentences. The resolution's preamble states that, over the last two decades, the US prison population has increased dramatically even while mandatory minimum sentencing "has been ineffective at achieving its purported goals: reducing the level of substance abuse and crime, and increasing penalties for the most serious offenders."
A renewed death debate in New York
As detailed in articles here and here, the New York state Senate has passed bills to bring the death penalty back to the state. However, as the articles reveal, the prospect of the state Assembly also passing these bills seems slim. As explained in this article, politics is as much a part of the story as policy:
Anti-death-penalty activists called the vote a "political gesture" in an election year. All 212 legislators are up for election in November. The Republican-led Senate passed the bill, 37-23, but not without some debate.
"I don't believe in killing anyone because I believe life is sacred," said Sen. Ruben Diaz Sr., D-Bronx, noting his anti-abortion-rights stance.... Other Democrats accused the Republicans of grandstanding, given that the bill had insufficient support in the other house. "This is the end of the line here in the Senate," said Sen. Tom Duane, D-Manhattan. "It's not going anywhere."
June 13, 2006
Michigan Supreme Court dodges application of Blakely
It has been a while since a state supreme court has provides any Blakely fireworks. But a helpful reader tonight sent me copies of two lengthy opinions released today from the Michigan Supreme Court in which the court dodges the application of Blakely in the state up north. Here are the basics:
People v. Drohan, No. 127489 (Mich. June 13, 2006) (available for download below):
We granted leave to appeal to consider whether Michigan's indeterminate sentencing scheme, which allows a trial court to set a defendant's minimum sentence on the basis of factors determined by a preponderance of the evidence, violates the Sixth Amendment of the United States Constitution. Following a jury trial, defendant was convicted of one count of third-degree criminal sexual conduct, and one count of fourth-degree criminal sexual conduct. Defendant also pleaded guilty to a charge of being a third-offense habitual offender. The trial court sentenced defendant to a term of 127 to 360 months of incarceration on the third-degree criminal sexual conduct conviction. This range was calculated by the trial court's assignment of points to defendant's "offense variable" and "prior record variable" scores under a "preponderance of the evidence" standard. Defendant appealed his sentence, asserting that it was imposed contrary to the United States Supreme Court's decision in Blakely v Washington, 542 US 296 (2004), because the sentence was based on facts that were not determined by the jury beyond a reasonable doubt. The Court of Appeals affirmed the conviction, relying on this Court's decision in People v Claypool, 470 Mich 715, 730 n 14 (2004). Because we conclude that Michigan's sentencing scheme does not offend the Sixth Amendment, we affirm defendant's sentence.
People v. McCullen, No. 128161 (Mich. June 13, 2006) (available for download below):
Defendant was convicted of assault with intent to do great bodily harm less than murder following a jury trial. The properly scored recommended minimum sentence guidelines range for defendant’s offense provided for a term of five to 28 months' imprisonment, thus placing defendant in a so-called "straddle cell." The trial court sentenced defendant within the guidelines range to two to 15 years of imprisonment. On appeal, defendant argues that because his prior record variable (PRV) score alone placed him in a recommended minimum guidelines range of zero to 11 months, he is entitled to an intermediate sanction. Defendant contends that the trial court violated Blakely v Washington, 542 US 296 (2004), by engaging in judicial fact-finding to score the offense variables (OVs), thereby allegedly increasing his maximum sentence from an intermediate sanction to a prison term. We reject defendant's and the dissent's contention and affirm defendant's sentence.
Second Circuit addresses post-Booker application of safety valve
Continuing a busy circuit Booker day (details here), the Second Circuit tonight released US v. Jimenez, No. 05-2221 (2d Cir. June 13, 2006) (available here), which addresses the application of the statutory safety-valve after Booker. Here are the basics of the ruling as described in the per curiam decision's introduction:
In the instant appeal ...the defendant contends that, after Booker, we should revisit our decisions that place the burden of proof on the defendant to establish that he or she has satisfied the fifth requirement of the so-called "safety valve" provision, which permits the imposition of a sentence below the mandatory-minimum sentence prescribed in an underlying-offense statute. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. That fifth requirement is, in substance, that the defendant fully disclose to the government all offense-related information in the defendant's possession. 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). We see no reason to revisit those precedents and find no error in the imposition of the defendant's sentence.