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.
Former Atlanta mayor sentence increased on acquitted conduct
As noted here, in March former Atlanta Mayor Bill Campbell was convicted on three counts of tax evasion, but acquitted on four corruption charges. At the time, I suggested prosecutors might not be too disappointed by the split verdict because federal law suggests Campbell could still be sentenced, notwithstanding the acquittals, for his alleged corruption.
Today, Campbell was sentenced to 30 months imprisonment, and this CNN.com story indicates that his sentence was based in part on acquitted conduct:
U.S. District Judge Richard Story praised Campbell, 53, for two decades of public service but said he could not ignore his crimes.... Story also cited $45,000 in kickbacks he said Campbell received from a city contractor, even though the jury found that Campbell had not taken the money. "Within my heart, I am not sure you have accepted responsibility for what happened," the judge said Tuesday.
Campbell, dressed in a dark suit and tie, his wife seated behind him, had no immediate response. Later, he said he "disagrees vehemently" with the sentence. "This is not justice. We will appeal," he said. "We are very confident that we will prevail on appeal." "I've never betrayed the public trust and the jury found that way," Campbell added. He described the sentence as "an attempt to undo the jury's verdict."
David Nahmias, U.S. attorney for the Northern District of Georgia, disagreed. "We respect the jury's verdict." he said. "The jury found him guilty of three serious tax felonies." He called the sentence "a fair result" and added, "I'll tell you today that his appeal will ultimately be denied."
Within my heart, I am sure this case shows that some judges are not eager to accept responsibility for jury determinations. Indeed, whenever federal sentencing courts rely on acquitted conduct to enhance sentences, I always wonder (1) whether the Framers would have been proud of, or could have even imagined, federal judges increasing sentences based on conduct underlying jury acquittals, and (2) whether the majority of Americans now would be proud of, or even know about, federal judges increasing sentences based on conduct underlying jury acquittals.
Some posts on acquitted conduct and related issues:
Crackin' good arguments, Gromit!
Because I always love a good pop-culture reference, I will use my favorite animated friends to set up another entry about the crack/powder reasonableness debates in the federal circuit courts. At this link you can check out Wallace and Gromit in their terrific Cracking Contraptions shorts, and in the post below you can read about the latest oral arguments in the circuit courts about post-Booker crack sentencing.
Regular readers may recall this recent post with a brief report from Professor Mark Osler on the argument in the Second Circuit in US v. Castillo, a case which concerns whether it is reasonable for a district judge not to follow the guidelines' 100-1 crack-powder ratio. Mark has also been given time at oral argument in two cases raising similar issues in the Eighth and Ninth Circuits this week. Today was the Ninth Circuit argument in Starks (previously discussed here), and below are portions of a report Mark sent me right after the oral argument:
The first significant case out of the Ninth Circuit to involve the ability of a sentencing judge to vary from the guidelines based on a belief that the crack guidelines are too harsh was argued this morning before an unusually large crowd of 50-75 people. After the big turn-out for the Castillo argument, I'm beginning to wonder if there are more sentencing nerds out there than I expected.
Unfortunately for those of us who hope for a broader discussion of the 100-to-1 powder/crack ratio in federal sentencing, the Starks panel (Chief C.J. Schroeder, D.J. Graber, and Senior Dist. J. Holland) spent most of the questioning period addressing a waiver issue. In this case, the defendant had waived appeal in his plea agreement, but at sentencing Judge Shubb (E.D. Cal.) told the defendant that he had the right to appeal, and even encouraged the defendant to appeal ("I urge the defendant to appeal from this sentence if his attorney believes that an appeal would be fruitful…"). The judges of the circuit panel seemed doubtful that this affected the waiver in the plea agreement.
I was allowed time to argue the Booker issue as well. The posture of Starks is fairly unique, as it involves a sentencing judge who held he did not have the ability to sentence below the guideline range if there were not particular facts about the defendant justifying that variance. I tried to impress upon the court that this misread both Booker and the relevant statute (18 U.S.C. 3553(a)), in that it forestalled many of the 13-plus factors in the statute from even being considered, as that statute and Booker require.
On to Omaha!
Some recent related posts:
- 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
- Crack(ed) dicta from Judge Easterbrook for the Seventh Circuit
Lots of blogosphere death in the afternoon
Though Will Baude provides this great examination of the sparring between Justices Thomas and Stevens over the fate of Almendarez-Torres and the Second Circuit Sentencing Blog continues his great coverage of his chosen federal domain, the rest of the blogosphere is consumed with capital sentencing developments. In alphabetical order:
- ACSblog here discusses a Texas case to highlight race and disparity in the death penalty.
- Althouse has a fascinating picture in this post about the Supreme Court's Hill decision.
- Decision of the Day reports here on a notable split Sixth Circuit ruling on a capital habeas appeal.
- PrawfsBlawg has this post on the Supreme Court's House decision.
- And the copious SCOTUSblog comments on Hill and House are worth reading.
More and more reasonableness wins for government
Though this is becoming more and more of a dog-bites-man story, the government prevailed in a number of notable reasonableness rulings from the circuit courts today. The especially notable dispositions come from the Eighth and Eleventh Circuits.
From the Eighth Circuit, we get a classic pro-government Booker reasonableness double-shot: an affirmance of an above-guideline sentence as reasonable in US v. Donelson, No. 05-4330 (8th Cir. June 13, 2006) (available here), and a reversal of a below-guideline sentence as unreasonable in US v. Ture, No. 05-3142 (8th Cir. June 13, 2006) (available here). Of the pair, Ture is especially notable. The district court seemed to provide a thoughtful justification for imposing a below-guideline sentence of two years of probation when the guideline range was 12-18 months for tax evasion. But the Eighth Circuit decides that that the district court "failed to accord significant weight to the Guidelines range," and that "any sentence without a term of imprisonment is wholly unreasonable."
From the Eleventh Circuit, we get two sentences found reasonable over defendant objections: US v. Dowd, No. 05-15067 (11th Cir. June 13, 2006) (available here), and US v. Johnson, No. 05-14889 (11th Cir. June 13, 2006) (available here). Of the pair, Johnson is especially notable because it affirms over Eighth Amendment and reasonableness objections a 140-year prison sentence for producing and distributing child porn.
UPDATE: I now see from this effective post at AL&P that the government can notch its belt with yet another reasonableness win from the First Circuit today in US v. Brown, No. 05-2170 (1st Cir. June 13, 2006) (available here).
A Cagey view of Booker
Though the Supreme Court's work dominated the sentencing talk yesterday, I want to make sure a great Booker opinion from late last week gets its due. As briefly discussed here, the Tenth Circuit in US v. Cage, No. 05-2079 (10th Cir. June 8, 2006) (available here), does some very interesting and thoughtful work on post-Booker sentencing and reasonableness review. Trying to make sense of the dueling opinions in Booker, the Cage court provides what might be described as a civic republican defense of the opinion.
Cage is definitely worth a close read (or second read) for all Booker fans. The same also goes for the Sixth Circuit's recent great work in Buchanan (discussed here and here), and also the Ninth Circuit (apparently controversial) work in Zavala (discussed here). Now we just need a circuit to issue a great decision in a case that starts with "A" so I can talk about the A, B, C to... Z of post-Booker rulings.
Coverage of Monday's SCOTUS sentencing sambas
Unsurprisingly, the media has lots of coverage of the Supreme Court's work in House and HIll yesterday, and Howard Bashman here has assembled lots of highlights. I find the pieces providing a local perspective on what the rulings could mean for particular states (like California and Texas) particularly interesting. Readers are encouraged to spotlight any story that seems especially insightful.
Speaking of being especially insightful, Will Baude at Crescat has this great examination of the sparring between Justices Thomas and Stevens over the fate of Almendarez-Torres. His post reinforces my sense that, as I suggested in posts here and here, the non-capital sentencing action from SCOTUS yesterday is even more interesting and likely more consequential than all the death penalty work capturing all the newspaper headlines.
Some insider perspective on House
Professor Rory Little, whose helped drafted the amicus brief filed by the American Bar Association on the defendant's behalf in House v. Bell, shared with me some of his personal (and initial) reflections on the Supreme Court's House ruling. With his posting permission, here are highlights:
House is an extremely important decision, in the larger context of the nationwide march toward fully appreciating "actual innocence" claims, and for habeas law in particular.... House importantly makes it clear that DNA claims can get through the Schlup v. Delo "gateway" for "procedurally defaulted" habeas claims.
Of course, Justice Kennedy's decision is not a clear bell-ringer for DNA alone, but rather the sort of fact-intensive incremental case he and Justice O'Connor (whose spirit is felt here, by extensive references in Justice Kennedy's majority, if not her presence) are known for.... Still, it appears to end the extremely stringent (practically impossible) interpretations of Schlup that some lower courts have used....
The result here is also a bit like avoiding a car crash: if it had gone the other way, then DNA-based actual innocence claims around the U.S. would have been dealt a body blow. And thank goodness Justice Kennedy avoided the "trap" of limiting the decision to just capital cases: "Actual innocence" claims, particularly those involving DNA evidence, should be treated equally, regardless of the penalty....
Finally, it is a shame that the majority felt it necessary to opine that the alternative "free-standing" innocence standard of Hererra v. Collins is "higher" than the Schlup gateway standard. As the ABA Amicus explained, that such a difference was intended is actually not at all clear from a careful parsing of the precedents leading to Hererra and Schlup. Nor was this necessary to the decision....
Thus why the Court felt it necessary to opine seems unclear at best. It is not likely that this was the "price" necessary to get a majority for House; instead, it seems to be Justice Kennedy's own price for staying with the majority. But without him, the case goes 4-4, gets reargued with Justice Alito participating and likely goes the other way....
I imagine habeas scholars and lower courts will have a fun and laborious time picking apart the niceties between the majority and dissenting opinions. But on the global scale, this was a good, and absolutely necessary, decision for the "actual innocence" movements across the country. Three cheers for the "Stevens Court"!
June 12, 2006
A cert grant as the biggest(?) SCOTUS sentencing news
Easily overlooked in all the capital sentencing and Blakely news today from the Supreme Court (basics here, commentary here and here) is the cert grant to explore next Term what state convictions qualify as a violent felony for purposes of mandatory sentences under the Armed Career Criminal Act. Here's the updated description of the case from SCOTUSblog:
The Court ... agreed to decide whether state convictions for attempted burglary -- as defined under Florida law -- qualify as a violent felony for purposes of mandatory sentences under the federal Armed Career Criminal Act. The case is Alphonso James v. U.S. (05-9264).
As detailed in prior posts here and here and here and elsewhere, many years of imprisonment can often hinge on what qualifies as a violent felony for ACCA purposes (or what is a "crime of violence" for guideline purposes). And the list of crimes that have been deemed "violent" -- e.g., evasive driving, making a harassing phone call -- never ceases to amaze. Thus, I suspect a lot of folks will be interested to follow what the court does next Term with Alphonso James v. U.S.
Insights on Hill from THE expert
Professor Debby Denno, whose prior work on execution methods I praised in previous posts here and here (where I also correctly predicted the outcome in Hill), this afternoon shared with me her reaction to Hill. With her gracious permission, I am pleased to post her thoughts here:
I think Hill is a narrow decision, but I think it is more significant than you do. First, it's unanimous (and the oral arguments gave some suggestion that it wouldn't be unanimous if it was favorably decided and even indicated that the case might not be affirmatively decided). Second, as you know, section 1983 doesn't require inmates to jump through as many procedural hoops and has a potentially richer field of case law for them to draw upon in their arguments. Next, the issue raised in Hill is broader than that raised in Nelson. Nelson concerned a 1983 challenge of a cut down procedure based in part on Nelson's own deteriorating veins. Cut down procedures were rare in 2004 and they are even rarer now. But the use of chemicals prompting Hill's challenge is generic to every lethal injection in the country; in other words, every state uses the same three chemicals that Hill challenged and there was no mention of Hill's particular anatomical limitations (nor were they relevant). While the Court did not address head on the substantive aspects of lethal injection, it does mention the fact that Hill's challenge concerns "a foreseeable risk of gratuitous and unnecessary pain." If the Court thought the issue were totally frivolous, the case wouldn't have garnered their attention.
I think Hill validates the lethal injection issue and clarifies its importance both to attorneys and to courts. It sends a message that departments of corrections (doc) are going to continue to be scrutinized and perhaps spotlighted more than in the past. Incrementally, the doc's are being pressured to alter their protocols or to switch to another method. While in the grand scheme of things this movement today may not seem like a big deal, I think it's useful to remember that the Court has directed more attention to lethal injection in the last two years than it has to any other method of execution in the last 110 years. Put in context, seemingly small steps are magnified.
Of course, everything Debby says about Hill and its aftermath is spot on. That said, here was my reaction to Debby's insights: "All true, but the same would be true if the SCOTUS opinion in Hill just said: 'We think Hill's claim is appropriate as a 1983 action. Reversed and remanded.' And, had the SCOTUS said that in mid-February rather than in mid-June, the state of capital punishment in the US would be much less disorderly."
Recent related posts:
- A bit of lethal injection history
- Shouldn't Hill be the very first priority for SCOTUS?
- How could (and should) Congress clean up the lethal injection mess?
Crime rates jump according to FBI stats
Interestingly, on a day of two wins for capital defendants in the Supreme Court (basics here, commentary here), there is somewhat surprising news on the crime rate front. As detailed in this CNN story, for "the first time in 13 years, the violent crime rate has jumped significantly in the United States, with the biggest increase in the Midwest, according to figures released by the FBI on Monday." Here are more details:
The murder rate in the United States shot up 4.8 percent last year, and overall violent crime was up 2.5 percent for the year, marking the first significant annual increase in crime in the United States since 1993, the FBI said.
Law enforcement authorities and criminologists reacted cautiously, uncertain whether the preliminary statistics for 2005 signal the end of a long downward trend in the crime rate, or simply a one-year anomaly.
This news make me wonder whether some folks might connect rising crime rates to recent SCOTUS work --- e.g., might anyone claim this is a Blakely or Booker or Roper spike? The news also perhaps raises the possibility that crime and punishment issues could become a significant issue in the coming election cycle.
The "prior conviction" sparring, Harris and Roe v. Wade
As noted in this earlier post, in addition to the death penalty rulings (basics here, commentary here), this morning's SCOTUS work included a remarkable set of dueling opinions about whether the court should reconsider the Almendarez-Torres "prior conviction" exception to the Apprendi-Blakely rule. Justice Thomas delivered this brief passionate dissent from the denial of cert in three cases asking the court to reconsider Almendarez-Torres, while Justice Stevens issued this one paragraph statement respecting the denial of the petitions.
There is so much which might be said about the merits of this little skirmish between the two Justices, both of whom state flatly that they view Almendarez-Torres as wrongly decided. But rather than focus on what this means for the future of the "prior conviction" exception, I must highlight two other cases that seem to be lurking in the shadow of this public spat:
1. As Blakely followers know, the "mandatory minimum" exception from Harris v. US is perhaps even more important for sentencing jurisprudence than is the "prior conviction" exception. As my colleague Alan Michaels has noticed, Harris makes a conspicuous appearance in Justice Stevens' statement:
In addition to strongly suggesting that Almendarez will stand (and the absence of anyone voting with Thomas suggests it will do so), JPS expressly distinguishes the prejudice from the "wrongness" of Almendarez (unlikely) from that flowing from the wrongness of Harris. By saying that judicial findings of prior convictions "unlike the denial of a jury trial on other issues of fact that give rise to mandatory minimum sentences, see Harris v. United States, 536 U.S. 545 (2002), will seldom create any significant risk of prejudice to the accused"), JPS indicates strongly (though I guess not surprisingly) he is willing to undo Harris.
2. As everyone knows, the biggest stare decisis question always facing the court is the fate and future of Roe v. Wade. I have long thought that Justice Thomas' willingness to overturn A-T was an echo of his likely approach to Roe. And now I find it hard to read Justice Stevens' work in this area as not also reflective of the Roe elephant that is always in the stare decisis room.
A Hill of beans
As I feared, the Supreme Court's approach to its decision today in Hill (basics here) isn't really going to help sort out all the on-going lethal injection scrummages. Not to be too harsh about the inconsequential reality of Hill, but I fear I might be libeling beans (and could get sued by some bean association) if I joke that Hill is even worth a hill of beans.
The unanimous ruling in Hill says little more than that the defendant's effort to challenge a lethal injection protocol through a 1983 action "is comparable in its essentials to the action the Court allowed to proceed under § 1983 in Nelson." After roughly eight pages making this point, the Court then gives us this sure-to-confound discussion of whether stays ought to be granted while death row defendants pursue lethal injection challenges as 1983 actions (cites omitted):
Filing an action that can proceed under § 1983 does not entitle the complainant to an order staying an execution as a matter of course. Both the State and the victims of crime have an important interest in the timely enforcement of a sentence. Our conclusions today do not diminish that interest, nor do they deprive federal courts of the means to protect it.
We state again, as we did in Nelson, that a stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts. Thus, like other stay applicants, inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.
A court considering a stay must also apply "a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay."
After Nelson a number of federal courts have invoked their equitable powers to dismiss suits they saw as speculative or filed too late in the day. Although the particular determinations made in those cases are not before us, we recognize that the problem they address is significant. Repetitive or piecemeal litigation presumably would raise similar concerns. The federal courts can and should protect States from dilatory or speculative suits, but it is not necessary to reject Nelson to do so.
The equities and the merits of Hill's underlying action are also not before us. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
Not to be too critical, but if the "State and the victims of crime have an important interest in the timely enforcement of a sentence," why did the Supreme Court need five months to simply reaffirm its Nelson ruling in Hill? And if "[r]epetitive or piecemeal litigation" impacts this "important interest," why didn't the Supreme Court also take up the "equities and the merits of Hill's underlying action" in this case?
Put simply, the Hill opinion might seem like a nice, cautious opinion trying to balance a set of important competing concerns. But, as I have highlighted in prior posts (some linked below), the Supreme Court's handling of the Hill case (and its rulings in all the lethal injection litigation that has followed) reveals that the Justices have a hard time balancing these concerns in the way they deliver their rulings. And, that reality reinforces my belief that Congress should be trying to clean up the lethal injection mess.
Some recent related posts:
- Lethal injection litigation inspection
- A bit of lethal injection history
- Shouldn't Hill be the very first priority for SCOTUS?
- How could (and should) Congress clean up the lethal injection mess?
- Reports on Hill lethal injection argument
- More coverage of the Hill lethal injection argument
A brief account of House and Hill
With so much SCOTUS sentencing news today (basics here), I'm not sure where to start. I suppose it makes sense to begin with brief accounts of the two death penalty rulings in House and Hill.
House, which I think of as the innocence case, produced a 5-3 ruling in favor of a death row defendant's right to use DNA evidence to try to establish his innocence 20 years after his original conviction. This brief AP story details the basics of the Court's majority ruling authored by Justice Kennedy.
Update: The full 37-page opinion in House, and an 18-page dissent by Chief Justice Roberts, can now be accessed at this link.
Hill, which I think of as the execution method case, produced an unanimous ruling in favor of a death row defendant's right to challenge a lethal injection protocol through a 1983 civil rights claim. This AP story and this SCOTUSblog post details the basics of another ruling authored by Justice Kennedy.
Update: The 10-page opinion in Hill can now be accessed at this link.
A capital (and non-capital) day for SCOTUS work
Perhaps it is fitting that, on a day I start by moaning again about the death penalty getting too much attention, the Supreme Court hands down two major capital punishment rulings that I have been eagerly awaiting. According to this post at SCOTUSblog:
The Supreme Court ruled on Monday that a Tennessee death row inmate has made a sufficient showing on his claim of innocence based on new evidence so that his case may proceed in federal habeas court. The ruling came in the case of House v. Bell (04-8990).
In the only other ruling of the day in an argued case, the Court allowed death row inmates seeking to challenge the lethal injection method of execution to pursue the issue as a civil rights claim, a broader option than federal habeas. The ruling came in Hill v. McDonough (05-8794).
In addition, as reported here at SCOTUSblog, the Supreme Court continuing also grant cert in Alphonso v. US "to decide whether state convictions for attempted burglary qualify as a violent felony for purposes of mandatory sentences under the federal Armed Career Criminal Act."
I will have comments on all these developments once I get a chance to read these new opinions. In the meantime, readers are urged to use the comments to reflect on two wins for capital defendants.
UPDATE: I also now see from SCOTUSblog that there were also some Almendarez-Torres fireworks as well:
Once again, Justice Clarence Thomas voiced his view -- so far, not shared openly by any other member of the Court -- that the Court should reconsider its ruling in Almendarez-Torres v. U.S., a 1998 decision that provides the only exception to the jury role that the Court has mandated in the Apprendi line of cases. Thomas said "it is time for this Court to do its part" in addressing whether that decision continues to be valid.... Thomas spoke out anew in dissent as the Court refused to hear three cases raising the issue -- Rangel-Reyes v. U.S., Shuman v. U.S., and Banegas-Hernandez v. U.S.
Answering Thomas, Justice John Paul Stevens said he continued to believe that the 1998 ruling was wrong, but added "that is not a sufficient reason for revisiting the issue." The denial of a jury trial on that issue, Stevens said, "will seldom create any significant risk of prejudice to the accused." Besides, he said, "countless judges in countless cases have relied upon Almendarez-Torres in making sentencing determinations. The doctrine of stare decisis provides a sufficeint basis for the denial" of review in the three new cases, he added.
Yikes, so much to talk about on a day I was hoping to get my grading finally done. Oh well...
ABA calls for death penalty moratorium in Alabama
As detailed in this AP article, a study team from the American Bar Association has recommended a moratorium on the death penalty in Alabama in a massive report that documents major flaws in the state's administration of capital punishment. But, unsurprisingly, not every state official is appreciative of the ABA's insights:
The voices calling for a moratorium on executions in Alabama now include most members of a death penalty assessment team formed by the American Bar Association. The assessment team, headed by University of Alabama law professor Daniel Filler, found several problems with the way Alabama handles capital murder cases, including inadequate legal representation and a lack of access to DNA testing.
Alabama's top prosecutor, Republican Attorney General Troy King, said the ABA is biased against the death penalty, and it put together an assessment team that reflects that bias. "The ABA is a liberal, activist organization with an agenda they constantly push. That's why I'm not a member of the ABA," King said Friday.
The ABA's comprehensive report, which runs over 250 pages and is available at this link, provides an extraordinary overview of the death penalty in Alabama and obviously represents an extraordinary amount of work by the members of the ABA assessment team. Anyone uniquely concerned about the death penalty in Alabama should find the time to read this report.
Unfortunately, I cannot help but have same reaction to this Alabama report that I had to a similar ABA report issued in January identifying problems with Georgia's death penalty practices. As I explained in this post, I am always troubled by how much time and attention is given to death penalty processes and defendants, especially since (1) everyone on death row has been convicted and sentenced to death for murder, and (2) the alternative to execution is typically life in prison.
As I explained before, I see far greater injustices in our criminal justice system than what transpires in the (over-analyzed) death penalty system. There are at least 132,000 persons in the US serving life imprisonment, some for petty crimes because of a personal history as a small-time thief or drug dealer. And, of the more than 2,000,000 persons in jail or prison, nearly half are serving time for non-violent offenses. In my view, these defendants merit the time and attention of groups like the ABA more so than a relatively small group of murderers (most of whom are likely to die in prison as if they had received a life term even though sentenced to death).
UPDATE: I now see that Dan Filler has this post about his work on the ABA report here at Concurring Opinions. In light of my comments about, these insights from Dan seem especially notable:
One of the most troubling things that surfaced in our work was the fact that the state's capital system has eluded serious study for so long. Unlike some other states, few individuals or organizations have conducted extensive research on it. The state engages in fairly limited data collection as well. As a consequence, we were somewhat limited in our ability to provide a complete snapshot of the system.
In many respects. this report is best designed to start - rather than end - serious scrutiny of capital punishment in Alabama.
June 11, 2006
Reflecting 20 years after the crack panic
Reacting to this recent Washington Post article about the twenty-year anniversary of the death of University of Maryland (and then soon-to-be Boston Celtic) basketball star Len Bias, a fellow sentencing nerd (as he wished to be described) sent me this insightful commentary:
The article focuses on the role of Bias' death in shattering the perception of cocaine as being benign drug. As the article puts it, "Twenty years ago, the death of Len Bias horrified the sports world and was a major factor in reduced recreational cocaine use among young people. It still reverberates across the Washington region." Yesterday, there was a ceremony entitled a Vigil for Lost Promise where Bias' mother, "school choirs, drug enforcement agents and hundreds of grieving relatives of other victims [joined] in a tearful candlelight commemoration in Arlington of those killed by the scourge of drugs."
Of course, as a sentencing nerd, I remember some of the sentencing consequences of Bias' death that the Post * oddly * neglected. It was the summer of 1986. Congress had passed the Sentencing Reform Act of 1984, but the newly minted United States Sentencing Commission had not yet promulgated its first set of Guidelines. At this delicate time in sentencing history, Bias' death galvanized Congress into action. Unfortunately, Congress acted by passing what many people view as the harsh mandatory minimums of the Anti-Drug Abuse Act of 1986, which were many people also believe were largely disconnected from sound research and rational policy. See, e.g., Eric E. Sterling, The Sentencing Boomerang: Drug Prohibition Politics and Reform, 40 Vill. L. Rev. 383 (1995).
As a part of this Act and allegedly in the name of Bias, Congress implemented the infamous 100-to-1 sentencing ratio between crack and powder cocaine. The Commission modeled its initial Guidelines on that ratio and the rest is, unfortunately, history. It all started twenty years ago this month. Twenty years. At the government's discretion, 20 years is also the minimum sentence for a defendant with a previous felony drug conviction (say, for selling a small amount of marijuana) who distributed 50 grams of crack.
Could we get more Blakely/Booker SCOTUS surprises this week?
As noted in this post, last week I was prepared for some sentencing-related Supreme Court opinions, but instead was pleasantly surprised by a SCOTUS cert grant on Blakely retroactivity in Burton (highlights in this category archive). Now I am wondering whether this coming week might bring some additional Blakely or Booker surprises from the Supreme Court.
Of course, the Blakely error question at issue in Washington v. Recuenco makes Recuenco the case most likely to produce sentencing-related fireworks (background at this category archive). But, aided by this post over at SCOTUSblog listing pending SCOTUS matters, I have my eye on these other cases which might cover concepts that could impact the post-Blakely and post-Booker world:
- Kansas v. Marsh (constitutionality of a death penalty law that requires death if plus and minor factors are in balance) (re-argued case)
- Dixon v. U.S. (burden of proof on defense of duress or coercion in criminal case)
- Clark v. Arizona (right to make an insanity defense to disprove criminal intent)
The sorry state of California's prisons
Following up this week's major policy report on the state of America's prisons by the bipartisan Commission on Safety and Abuse in America's Prisons, today the Washington Post has this extended article describing the crisis condition of California's prison system. Here is how it begins:
This is what conditions are like at one of California's best prisons, the California Rehabilitation Center: Built to hold 1,800 inmates, it now bulges with more than 4,700 and is under nearly constant lockdown to prevent fights. Portions of the buildings, which date to the 1920s, are so antiquated that the electricity is shut off during rainstorms so the prisoners aren't electrocuted. The facility's once-vaunted drug rehab program has a three-month-long waiting list, and the prison is short 75 guards.
It is even worse throughout the rest of California's 32 other prisons, which make up the second-largest system in the nation after the federal Bureau of Prisons. Despite a vow from Gov. Arnold Schwarzenegger (R) to cut the prison population, it has surged in recent months to more than 173,000, the worst overcrowding in the country, costing taxpayers more than $8 billion a year. More of those inmates return to prison because the state has the nation's highest recidivism rate.
A senior prison official warned not long ago of "an imminent and substantial threat to the public" and fears of riots have only increased, prison officials and correctional officers said. The situation has left Schwarzenegger, who faces reelection this year, with one of his biggest political problems.
The rest of the thoughtful article highlights the transition from a rehabilitative to a law-and-order model of sentencing and corrections. Indeed, the Commission's report, entitled "Confronting Confinement," urges a renewed emphasis on rehabilitation in prison systems as a salve for modern prison problems. (Additional effective media coverage of the report comes from the AP and the Los Angeles Times.)
Training sentencing judges
This article from Alabama, entitled "Judges await training in sentencing," provides an interesting perspective on one of the challenges that accompany the adoption of a new sentencing system. Here is a snippet:
It's been two months since Gov. Bob Riley signed into law voluntary sentencing standards for 26 of the most common felonies in Alabama. Judges don't have to follow the standards but they must show that they considered them.
This is what the new law requires, but over the past two months, the Alabama Sentencing Commission has given only about a dozen judges training on how to use the new standards that give low-level criminals a chance to get treatment instead of hard time. The commission has a lot of judges, lawyers and clerks to educate and comparatively little time to do it. "It's a monumental task with a lot of people to reach," said Rosa Davis, attorney for the Alabama Sentencing Commission, a key player in getting the changes implemented.