June 24, 2006
Crack sentencing and the anti-parsimony pandemic
In a new YLJ comment noted here, Eric Citron goes to great lengths to defend the First Circuit's work in Pho (basics here, commentary here and here and here), which reversed a district court's decision not to apply the guidelines 100:1 crack/powder ratio. But, like others who seem eager to demand the continued application of harsh and discriminatory crack guidelines after Booker, Eric's comment never directly grapples with the central instruction from Congress to sentencing judges in 18 U.S.C. § 3553(a): "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."
I have decided to call the continued disregard of this command after Booker an "anti-parsimony pandemic." (Recall that, as detailed here, Justice Breyer started this brain virus in the Booker remedy.) The crack debate reveals the harmful consequences of this affliction. The US Sentencing Commission has emphatically stated in a series of thoughtful reports that (1) the guidelines' 100:1 ratio overstates the seriousness of crack offenses and (2) the crack guidelines undermine the goals set forth by Congress in 3553(a). (Consider, e.g., Chapter 8 of the US Sentencing Commission's 2002 Report: "After carefully considering all of the information currently available ... the Commission firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act.")
Put differently, the USSC has repeatedly documented that the crack guidelines recommend sentences that are "greater than necessary" to achieve the purposes of § 3553(a)(2)! Given the USSC's findings, the parsimony command of § 3553(a) supports — arguably even requires — a district court's decision not to follow the crack guidelines. Consequently, upon appellate review, it is hard to understand what is "unreasonable" about a district court's decision to follow Congress's parsimony command in light of the USSC's expert work by sentencing below the crack guidelines. Only the anti-parsimony pandemic explains how courts and commentators can read § 3553(a) to require reversing a district court's decision not to follow guidelines that the USSC has repeatedly said are "greater than necessary" to achieve the purposes of punishment.
Eric's note and the Pho decision make much of (a debatable view of) congressional intent. But, whatever one's view of congressional intent, shouldn't post-Booker sentencing and analysis of the crack guidelines focus on the express and duly enacted text of 3553(a)?
Blakely turns two ... let's forum!
Two years ago today, the Supreme Court handed down its decision in Blakely v. Washington. In my first post after the decision, I commented that "the ramifications of this decision for modern sentencing reforms cannot be overstated," and that there will "be lots and lots more litigation (some of which will surely make its way again to the Supreme Court) about what [Blakely] now means for the operation of structured sentencing systems." As we await a decision from SCOTUS in Recuenco on the nature of Blakely error, and also look forward to two major Blakely cases on the docket next Term (Cunningham and Burton), the accuracy of these predictions are pretty clear.
So, on its birthday, what do you get for Blakely, the sentencing case that has everything? My idea is to honor the day by starting to post any commentary sent my way in response to the "Blakely at two" blog forum I proposed in this post.
June 23, 2006
Sambath Pho resentenced
A helpful reader reports that my post today on a recent YLJ comment on US v. Pho and post-Booker crack sentencing is quite timely: as detailed here, the two defendants in that appeal were re-sentenced by Judge Torres today to higher terms of imprisonment. Here are some details:
When Pho and Lewis came back for resentencing this morning, Torres told them that the only reason he had sentenced them below the guideline range was because he had used the 20-to-1 ratio, rather than the 100-to-1 ratio. "It would be dishonest of me, having already stated that except for the ratio the guideline range was reasonable, to come up with a pretext of why I now think the guidelines don't provide a reasonable context for your sentence," Torres said. So Torres sentenced Pho to 87 months in prison, up from his original sentence of 64 months. And he sentenced Lewis to 235 months in prison, up from 188 months.
Proof of an innocent man executed?
As detailed in this website from the Chicago Tribune, the paper this weekend will begin a three-part series contending that the State of Texas in 1989 executed Carlos De Luna for a crime he did not commit. According to the website, the case will also be the subject of a report on tonight's broadcast of ABC's "Nightline" program. (Hat tip How Appealing.)
Yale Law Law Journal comment on crack and reasonableness
Eric Citron, who was a frequent correspondent when the First Circuit was considering the crack/powder disparity in US v. Pho (basics here, commentary here and here and here), has published a Yale Law Journal comment on the case and reasonableness review. The comment, which can be accessed here, is titled "United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review." Here is an abstract:
This Comment argues that a proper understanding of Booker’s reasonableness review validates the appellate court’s rejection of these reduced-ratio sentences in Pho, and should do so despite the fact that the sentences issued by Judge Torres were eminently “reasonable” in any colloquial sense of the term. Two possible conceptions of reasonableness review must be distinguished—“reasonable-length” review and “reasons-based” review—and the latter should be preferred. Reasons-based review focuses not on the terms imposed but on the reasons given for imposing them, insisting that those reasons comport with Congress’s sentencing priorities. This paradigm, more so than the vague reasonableness standard, acknowledges congressional authority over sentencing rationales and preserves a central role for Congress’s much-beloved Sentencing Guidelines going forward. At the same time, by seeing the Guidelines as providing reasons rather than outcome-oriented formulae, it avoids the rote view of the Guidelines that rendered them unconstitutional under Booker. It is thus not only the most appropriate view on the law, but also capable of reconciling Congress’s obvious desire for rule-bound sentencing with the advisory role of the Guidelines as they now stand.
Just a few related posts:
- 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
The intriguing next chapter in the lethal injection saga
The Supreme Court's Hill decision on procedures for challenging lethal injection protocols in federal court (basics here, commentary here and here and here) just marks the start of another chapter in the saga of constitutional challenges to execution methods. And the first few pages in this new chapter are starting to get written.
As noted in this post, Oklahoma's highest criminal court earlier this week gave its blessing to the standard lethal injection protocol. But in Maryland, as this Baltimore Sun article details, an "administrative law judge has issued a decision in ... that could force Maryland to redevelop its lethal injection procedures." In Arkansas, as explained in this AP article, the litigation over lethal injection is raging in federal district court. In Mississippi, as reported in this article, the state attorney general predicts that Hill "will result in more costs and paperwork in Mississippi, but will do little to further slow the process from conviction to execution."
Interestingly, this new New York Times article reports that "medical experts say the current method of lethal injection could easily be changed to make suffering less likely." Here are snippets from an intriguing article:
Switching to an injection method with less potential to cause pain could undercut many of the lawsuits. But so far, in this chapter of the nation's long and tangled history with the death penalty, no state has moved to alter its lethal injection protocol.
At the core of the issue is a debate about which matters more, the comfort of prisoners or that of the people who watch them die. A major obstacle to change is that alternative methods of lethal injection, though they might be easier on inmates, would almost certainly be harder on witnesses and executioners. With a different approach, death would take longer and might involve jerking movements that the prisoner would not feel but that would be unpleasant for others to watch.
All of these developments further reinforces my belief, first set out in this pre-Hill post, that Congress should try to do something to clean up the lethal injection litigation mess. As I suggested before, Congress could at the very least hold hearings to explore the medical matters at issue in all the piecemeal litigation now taking place in state and federal courts nationwide.
Around the blogosphere
I am back at my home computer, and I see plenty worth reading around the blogosphere:
- Orin Kerr has this lengthy post on Thursday's interesting SCOTUS ruling in Dixon on the duress defense in federal law.
- Kent Scheidegger explores here whether and how the SCOTUS ruling on PLRA exhaustion in Woodford v. Ngo could possibly impact lethal injection litigation.
- Joel Jacobsen explains here how Justice Scalia's work on the Confrontation Clause shows he is truly a believer in a living Constitution.
Also, there are lots and lots of interesting new posts on criminal law and sentencing topics at:
June 22, 2006
Two more above guideline sentences affirmed in the Eighth Circuit
A delayed flight and an internet connection allows me to tell a tired story before I get tired from my travel home: the Eighth Circuit has affirmed two more above guideline sentences as reasonable. See US v. Mack, No. 05-4354 (8th Cir. June 22, 2006) (available here); US v. Youngbear, No. 06-1257 (8th Cir. June 21, 2006) (available here).
Of course, I am no longer surprised when the government wins a reasonableness dispue in the Eighth Circuit. But I continue to find curious that we get more reasonableness dispositions from the Eighth Circuit than from nearly all the other circuits combined.
More SCOTUS late term work
As detailed here at SCOTUSblog, the Supreme Court issued a lot of decisions today. But the only one that I think might be real significant for sentencing fans is Dixon:
In a 7-2 decision, the Court ruled that it does not violate due process for a jury in a criminal trial to be instructed that an accused claiming the defense of duress or coecion has the burden to prove that defense by a preponderance of the evidence. The case was Dixon v. U.S. (05-7053).
I have to go speak at my panel now, but I hope to get a chance to read and comment on Dixon before too long. Of course, readers are encouraged to get a running start in the comments.
Mental deficiencies and the death penalty
With a hat tip to How Appealing, I see Elaine Cassel has this commentary at FindLaw entitled "Executing the Mentally Ill and the Mentally Retarded: Three Key Recent Cases from Texas and Virginia Show How States Can Evade the Supreme Court's Death Penalty Rulings." Here is a taste:
In this article, I will explain the current status of the law on executing mentally ill and retarded persons, and argue that in states like Texas and Virginia, the Supreme Court's mandate that these classes of persons be spared the ultimate penalty has been reduced to mere wishful thinking.
June 21, 2006
Interesting new blog: "Crime and Consequences"
I have made it to beautiful San Diego, and waiting for me in my e-mail in-box was this interesting note about this interesting new criminal justice blog:
Blogs discussing crime and criminal law have, up to this point, been written largely from a criminal defense viewpoint. The Criminal Justice Legal Foundation, based in Sacramento, California, has today launched a blog to provide daily updates on current news, court rulings, commentary and research, generally reflecting a scholarly pro-law enforcement perspective.
Among the contributors are former United States Attorney General Edwin Meese, Former Harvard, UCLA and current Pepperdine Public Policy professor James Q. Wilson, Professor Joseph Bessette (Claremont McKenna College), Professor George Kelling (Rutgers), Professor Isaac Ehrlich (University of Buffalo), Professor Barry Latzer (John Jay College of Criminal Justice), former California prosecutor Douglas Pipes, Texas Solicitor General Ted Cruz and CJLF Legal Director Kent Scheidegger....
The blog is titled "Crime and Consequences" to reflect its underlying philosophy of criminal law. People make choices, and choices have consequences. That is true of the perpetrator’s decision to commit the crime and of society's decision regarding what to do about it. The Criminal Justice Legal Foundation has helped win four United States Supreme Court decisions benefiting law enforcement and public safety during the Court's current term.
Off to the coast...
My summer Booker speaking tour takes me to San Diego later today, so posting may be light through the weekend (unless SCOTUS makes some big sentencing news on Thursday).
As I head out, let me remind everyone that I would now like to start receiving contributions to the "Blakely at two" blog forum I proposed in this post. A terrific group of folks have already expressed interest in this forum, and I have now created a separate e-mail — firstname.lastname@example.org — to which folks should send proposed posts about the state and fate of Blakely two years later.
Notable Fifth Circuit ruling on sentencing rights
The Fifth Circuit addresses sentencing rights and procedures in the course of rejecting a defendant's challenge to his sentence in US v. Jackson, No. 05-11094 (5th Cir. June 20, 2006) (available here). Here is a choice snippet (cites omitted):
Although Jackson claims that his constitutional rights at sentencing had been violated, he relies primarily upon precedent interpreting the scope of a defendant's constitutional rights at trial. It is well-established, however, that a defendant's rights at sentencing differ considerably from his pre-conviction rights. At sentencing, a defendant has a protected due process right to review and object to a PSR, but no absolute right to present witnesses. Here, Jackson had the opportunity to examine the PSR, make objections, and present affidavits to support his claim that he did not assault his girlfriend. Under the circumstances, Jackson's due process rights were appropriately protected, and the district court was not required to receive additional witness testimony before sentencing.
Tellingly, all the cites in Jackson pre-date the Supreme Court's Apprendi line of decisions. As I have stressed in "Beyond Blakely and Booker: Pondering Modern Sentencing Process" (discussed here and here), an important enduring question which emerges from SCOTUS's recent sentencing jurisprudence is whether, when and how due process issues will be addressed after Blakely and Booker. Sadly, Jackson suggests courts are not even directly grappling with these questions.
The factual dispute at issue in Jackson should especially irk Blakely fans (and Blakely Justices). In Jackson, the judge in a felon-in-possession case increased the defendant's federal guideline sentence after essentially convicting him of a state felony that was never charged or prosecuted. I have to think the Framers would be truly aghast to discover that federal judges have the power to deprive a citizen's liberty based on the judge's finding, after receiving only limited evidence at a truncated federal sentencing hearing, that the citizen committed a state felony.
In praise of NJ's sentencing commission
Having spent nearly a decade of my life in and around New Jersey, I can attest that the state has a lot more to offer besides Bruce Springsteen. For example, the state's sentencing commission has done amazing work in its short history, including a groundbreaking study of the state's drug-free zone laws (background here and here).
Consequently, I was pleased to hear that on June 7, the New Jersey Assembly unanimously voted in a support of a bill to make the New Jersey Commission to Review Criminal Sentencing permanent. The Newark Star Ledger followed up with this strong editorial encouraging the New Jersey Senate to do the same.
Fittingly, the NJ Assembly vote also coincided with the publication of the Commission's interim report, entitled "Sentencing In the 21st Century and the Necessity of a Permanent Sentencing Commission in New Jersey." This 18-page report, which is available here, draws upon recent work by other commissions, and notes the emphasis placed on the value of permanent commissions by the American Law Institute and the Constitution Project, to explain why a sentencing commission is virtually essential for the development and monitoring of rational and effective sentencing policies.
Terrific SCOTUS blogosphere analysis
- Dan Filler here at Concurring Opinions considers some of the possible ripple effects of the Samson decision about parolees' limited Fourth Amendment rights. Because parole remains a disfavored criminal justice tool — the federal system and numerous states eliminate the possibility of parole, and other states grant parole sparingly for serious felons — I think the practical consequences of Samson may be fairly limited. But Dan provides a lot of useful food for thought.
- Orin Kerr here has thoughts on the peculiar GVR in Youngblood. Orin astutely recalls the notable summary reversal in Salinas a few months ago, and he sets out his pet theory that "Chief Justice Roberts thinks that some lower courts are being sloppy in criminal cases [and] wants to pressure them to be more careful by sending a signal that the Supreme Court is watching." Orin also contends, contra my reaction here, that the Youngblood disposition serves Bickelian passive virtues. Upon reflection, I find Orin's take on Youngblood persuasive, though I remain unsure whether the peculiar (and dangerous?) new use of the GVR technique in Youngblood would make Bickel proud or nervous. Relatedly, Jason Solomon here at PrawfsBlawg has additional good insights about Youngblood.
June 20, 2006
Third Circuit deepens split on variance notice issue
Deepening one (of many) post-Booker circuit splits, the Third Circuit today wades into the interesting issue of whether Rule 32(h) of the Federal Rules of Criminal Procedure should be understood to require a district court to give advance notice of its intent to vary from the guidelines. As detailed in some posts linked below, a few circuits to consider the issue directly have concluded that Rule 32(h) still requires notice in this crazy, mixed-up, post-Booker variance world. But, in US v. Banks, No. 05-1715 (3d Cir. June 20, 2006) (available here), the Third Circuit has a different (and more nuanced?) view. Here are a few highlights from an interesting decision (with cites removed):
Rule 32(h) was adopted at a time when courts could only avoid a Guidelines range by departing from the Guidelines. However, the Supreme Court made clear in Booker that the Guidelines are now advisory. Thus, district courts, post-Booker, exercise broad discretion in imposing sentences, so long as they begin with a properly calculated Guidelines range, fully consider the broad range of factors set forth in 18 U.S.C. § 3553(a), and all grounds properly advanced by the parties at sentencing. Thus, district courts continue to consider all grounds properly advanced by the parties at sentencing, as they did in the past, and they continue to consider the Guidelines range, which is now advisory. What has changed post-Booker, is that sentencing is a discretionary exercise, and now includes a review of the factors set forth in § 3553(a). These factors are known prior to sentencing.... Accordingly, given that defendants are aware that courts will consider the broad range of factors set forth in § 3553(a) at sentencing, we perceive none of the "unfair surprise" considerations that motivated the enactment of Rule 32(h).
Furthermore, the requirement of Rule 32(h) that the court specify "any ground" of contemplated departure from the Guidelines range was designed for pre-Booker departures, which were constrained by the provisions of the Guidelines pertaining to departures. The Guidelines have now become advisory and they no longer limit the grounds a court can consider at sentencing. Thus, the Guidelines are now only one factor among many which can influence a discretionary sentence. Application of the advance notice requirement of Rule 32(h) to discretionary sentence would elevate the advisory sentencing range to a position of importance that it no longer can enjoy.
Booker contemplates that the district court will impose a discretionary sentence after consideration of the advisory Guidelines, the grounds raised by counsel, the defendant's allocution, victim statements, other evidence, and the factors set forth in § 3553(a). Booker does not contemplate that the court will somehow arrive at its sentence prior to sentencing, and requiring advance notice of "any ground" beyond the factors set forth in § 3553(a) would undoubtedly prove to be unworkable.
Related posts on post-Booker Rule 32(h) issue:
A closer look at Recuenco
I am somewhat surprised that, as the Supreme Court Term winds down, that we have still not yet seen an opinion in the Blakely error case of Washington v. Recuenco (background here). Perhaps the Justices have been astutuely awaiting the publication of an article by Steve Sanders on the case, entitled "A Closer Look at Washington v. Recuenco," in the forthcoming issue of the Federal Sentencing Reporter. Fortunately, the wait is over, because I can now provide a proof of the article for downloading below. Here is how it starts:
Last year, the Supreme Court granted certiorari to decide whether violations of the Sixth Amendment's jury-trial right, as articulated in Blakely v. Washington, are structural error, requiring automatic reversal. In an earlier article I explain why Recuenco presents a substantial federal question for the Supreme Court's resolution. That article also suggests that Recuenco presents a "perfect vehicle" for resolving the question presented because the Washington Supreme Court would be free to affirm Recuenco's enhanced sentence were the U.S. Supreme Court to conclude that Blakely errors do not require automatic reversal. This article elaborates on that critical assumption and highlights an issue that, although not addressed by the parties, may require the Supreme Court to fine-tune its harmless-error jurisprudence to accommodate Blakely-type claims.
Ninth Circuit as phallus protector
This opening paragraph of the Ninth Circuit's interesting ruling today in US v. Weber, No. 05-50191 (9th Cir. June 20, 2006) (available here), certainly should grab your attention:
Penile plethysmograph testing is a procedure that "involves placing a pressure-sensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses." Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on Convicted Child Sex Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004). Although one would expect to find a description of such a procedure gracing the pages of a George Orwell novel rather than the Federal Reporter, plethysmograph testing has become routine in the treatment of sexual offenders and is often imposed as a condition of supervised release. We address the procedures that must be followed before a district judge may impose such a requirement on a criminal defendant.
Intriguingly (and unsurprisingly?), Judge Berzon, the sole female member of the Ninth Circuit panel to hear this case, authored the opinion for the court.
Based on a quick first review, I probably should add a "for mature audiences only" warning in my link to the Weber opinion. It also would be in very bad taste to encourage jokes about this important issue (though I suppose I could provide this link to a long list of interesting slang words for readers who might not be as respectful as me).
Oklahoma ruling on lethal injection's constitutionality
In the first major lethal injection ruling I have seen since the Supreme Court's Hill decision (basics here, commentary here and here and here), the Oklahoma Court of Criminal Appeals ruled yesterday that the state's lethal injection protocol is constitutional. The unanimous ruling from the state's highest criminal court came in Malicoat v. State, No. D-1998-151 (Ok. Cr. App. June 19, 2006) (available here). Here are some snippets from the close of the opinion:
This Court does not intend to denigrate Malicoat's anecdotal examples of potential problems with executions in Oklahoma. We have previously noted that some eyewitness accounts of irregularities in past executions may create cause for concern. We again express our confidence that the Department of Corrections will continue to monitor and revise the execution protocol as may be necessary to ensure a swift, painless and humane execution. However, these expressions of concern and confidence regarding the process do not undermine our legal conclusion that Oklahoma’s execution protocol does not violate the Eighth Amendment prohibition against cruel and unusual punishment.
Although this is an issue of first impression in Oklahoma, other jurisdictions have considered and rejected similar claims. After a lengthy analysis the Tennessee Supreme Court concluded, "we cannot judge the lethal injection protocol based solely on speculation as to problems or mistakes that might occur. We must instead examine the lethal injection protocol as it exists today." We agree. Doing so, we have found that Oklahoma's execution protocol is not cruel and unusual. We recognize that this issue is being litigated separately in the federal court system. However, Malicoat is not entitled to a stay of execution while that litigation is pending.
Interestingly, Judge Lumpkin authored a separate little opinion which, through this final paragraph, may express a common perspective about lethal injection challenges by death row defendants:
Additionally, I find Appellant's request to be spared the imposition of his legally imposed punishment because it might cause him to suffer or experience pain unpersuasive (and rather ironic) as his murderous acts have been the cause of the ultimate pain and suffering for the victim and her family.
June 19, 2006
Calling the (passive) spirit of Alexander Bickel
Today's intriguing little SCOTUS per curiam, along with the dissents from Justices Scalia and Kennedy, in Youngblood v. West Virginia (available here) suggests yet again that the most interesting aspect of the early Roberts Court is how it is deciding matters, rather than what it is deciding.
The many narrow opinions and the slow pace of cert grants has led me to believe that the Roberts Court was eager to effectuate the "passive virtues" famously championed by Alexander Bickel. But as Justice Scalia highlights in his Youngblood dissent, the Court's GVR in Youngblood does not seem so passive. And yet, both CJ Roberts and Justice Alito (a purported Bickel fan) are the key swing votes forming a majority for the GVR.
Very interesting . . . and more good news for law professors looking for interesting (ivory tower) SCOTUS topics for law journal discussion.