July 1, 2006
Missouri Supreme Court addresses sex offender registry
As detailed in news articles here and here, the Missouri Supreme Court on Friday issued a major decision addressing the state's sex offender registry. The full ruling, which upheld the state's Megan's Law against a range of constitutional claims concerning, can be accessed here. This news account provides some highlights:
While the high court upheld the constitutionality of the state's sex offender registry law, it ruled that the statute should not apply to nearly all of those convicted of crimes prior to 1995, when the law took effect. One key exception is sexually violent predators, who will stay on the list regardless of when their crimes occurred.
Just how many of Missouri's more than 11,000 registered sex offenders would be affected by the ruling was unclear Friday.... But Arthur Benson II, the lawyer who brought the case, estimates that thousands would no longer have to be registered as sex offenders.
Currently, the registry includes offenses from 1979 to the present. Crimes committed during more than half of those years would not be included in the registry. Benson said the ruling addresses "the height of unfairness" in the current law, which requires people to register even for crimes they committed years before the registry law was conceived.
Eleven of Benson's clients claimed their inclusion on the sex offender registry was unconstitutional on numerous grounds. The high court rejected nearly all their claims, affirming the constitutionality of requiring offenders to register even after they had completed prison sentences. The court ruled — as it and others have in the past — that the registration requirement does not represent an additional criminal punishment.
Fourth Circuit finds fast-track variance unreasonable
While I was making a fast-track departure to the golf course Friday afternoon, the Fourth Circuit in US v. Perez-Pena, No. 05-5054 (4th Cir. June 30, 2006) (available here), ruled that a variance based on fast-track disparity is unreasonable. Here are some key passages from the opinion authored by Judge Wilkins, the first Chair of the US Sentencing Commission:
The Government first argues that the district court erred to the extent that it imposed a below-guidelines sentence to account for sentences received by defendants participating in fast-track programs. We agree....
There is no denying that Congress has decided that governmental law enforcement or administrative concerns warrant sentencing disparities between defendants with similar criminal conduct and records, under some circumstances.... Defendants who are fortunate enough to be able to offer the Government what it wants can obtain reduced sentences not because they deserve the reductions, but because the reductions are the leverage that allows the Government to get what it wants. Thus, the resulting reductions (and disparities with otherwise similarly situated defendants) serve an important purpose....
[C]omparing the sentences of defendants who helped the Government to those of defendants who did not—regardless of why some were in a position to help and others were not—is comparing apples and oranges. For this reason, Congress could not have intended that disparities resulting from the exercise of prosecutorial discretion could be determined to be "unwarranted."...
In short, there is no reason to believe that Congress intended that sentencing disparities between defendants who benefitted from prosecutorial discretion and those who did not could be "unwarranted" within the meaning of § 3553(a)(6). We therefore conclude that the need to avoid such disparities did not justify the imposition of a below-guidelines variance sentence.
June 30, 2006
If you can't get enough SCOTUS blogging...
at SCOTUSblog, then you will definitely want to check out the Georgetown University Law Center's new law faculty blog. It already has lots and lots of Hamdan commentary. Meanwhile, I will get a fast start on a long weekend by recapping my coverage of the final week of SCOTUS action:
- A criminal law heavy SCOTUS finale
- SCOTUS says Blakely errors can be harmless and tie can go to death
- A few quick thoughts on Recuenco
- A few quick thoughts on Marsh
- More evidence of Justice Scalia's move left
- Why Recuenco could be good news for Blakely fans
- A Blakely perspective on Clark
- Initial reflections on an error-correction SCOTUS term
Another notable reasonableness ruling from the Sixth Circuit
Though not as dramatic as yesterday's sentencing fireworks in the Sixth Circuit, the court's decision today in US v. Ossa-Gallegos, No. 05-5824 (6th Cir. June 30, 2006) (available here) has an interesting discussion of reasonableness in an illegal reentry case. Though the decision rejects a defendant's reasonableness complaints, the panel decision implicitly suggests that the district court was justified in adjusting a sentence downward based on fast-track disparity.
Also interesting is the assertion in Ossa-Gallegos that "avoiding nationwide disparities in sentencing is only one factor to be considered under § 3553(a)." Though this point is made to reject a reasonableness claim by a defendant here, in many other cases (such as variances from crack guidelines) this key point should undercut arguments by the government trying to reverse a district court's sentencing judgment on appeal.
Initial reflections on an error-correction SCOTUS term
The Supreme Court concluded its work for the 2005 Term less than 24 hours ago, and term-in-review materials are already plentiful: Joan Biskupic has this effective USA Today overview, and comprehensive assessments of the term can be found in interesting documents from Georgetown's Supreme Court Institute (available here) and from the ACLU (available here).
Against the backdrop of the previous two terms — which brought Blakely and Crawford and Booker and Roper and a number of big police practice decisions — the criminal law part of the Court's docket in the just-completed term feels quite uneventful. Even notable death penalty rulings were not especially significant as a matter of doctrine: Marsh and House are interesting because of the innocence debates, Hill is interesting because the Court keeps ducking Eighth Amendment question about lethal injection protocols.
As suggested in posts here and here, the most interesting aspect of the early Roberts Court in the criminal justice area is how it is deciding matters, rather than what it is deciding. Notably, some commentors here, and Orin Kerr here, and the folks at De Novo here and here are effectively exploring the reality that the Roberts Court assumed an "error-correction" role in its aproach to criminal justice matters. Notably, this term the Court had a large number of per curiam reversals in criminal cases, and even many decisions rendered after full argument were often focused principally on making sure lower courts understood what they did wrong.
Right now, I do not have many deep thoughts on the interesting question of whether the Supreme Court should embrace an error-correction role in the criminal justice arena. But I can suggest that personnel transitions might make this past Term unique and just the calm before the storm. Among other cases to watch, the Supreme Court has two big Blakely issues on the docket for the coming fall: Cunningham, which addresses Blakely's applicability to California's sentencing law, and Burton, which addresses Blakely retroactivity. Either case (or both) could easily result in an opinion of much greater consequence than any ruling from the Court this past term.
Judge Adelman on variances from career offender guideline
The latest great sentencing opinion Sentencing Hall of Famer Judge Lynn Adelman addresses the (mis)application of the guidelines career offender provisions. Judge Adelman's terrific post-Booker work appears in US v. Fernandez, No. 04-CR-254 (E.D. Wis. June 28, 2006), as is available for download below. Like all of Judge Adelman's post-Booker efforts (much of which I've linked at the end of this post), Fernandez covers a lot of ground in short order and merits a full read. Here are some snippets:
Because this case presented an example of how the career offender guideline can conflict with the purposes of sentencing under 18 U.S.C. § 3553(a), I instead imposed a non-guideline sentence that better served those purposes....
Applying the career offender guideline to defendant produced several stark results. First, it produced a guideline range twice what it otherwise would have been. Second, it produced a range about five times longer than any previous sentence that defendant received. Third, it placed defendant in category VI even though his priors were more than 10 years old and committed when he was a young man, and even though he led a lawabiding life in the interim. Under these circumstances, the advisory guideline range was greater than necessary to satisfy the purposes of sentencing.
Prior posts with some of Judge Adelman's extraordinary post-Booker work:
- Another (very different) view of Booker from a district court
- Judge Adelman strikes again
- More amazing post-Booker work by Judge Adelman
- Three more great Booker decisions from Judge Adelman
- Judge Adelman spotlights problems with mandatories
- Judge Adelman on extraordinary acceptance of responsibility
- Judge Adelman provides more post-Booker wisdom
- More fast-track work from Judge Adelman
June 29, 2006
The many faces of Justice Scalia
The always entertaining Judging Crimes has perhaps the SCOTUS line of the year in this post which asks, "Does Justice Scalia believe in anything?" The entire post is a must-read for its effective attack on Justice Scalia's jurisprudential shifts. But I thought this particular line is one for the ages:
Scalia is that much-admired thing, a swing vote, in criminal cases, except for death penalty cases, a field in which he has managed to work ahead of the rest of the Court, delivering his votes years in advance of actually hearing the cases.
Thickening the capital/non-capital debate
Over at Concurring Opinions, Dan Filler here takes note of my constant harping that "that capital cases receive too much scrutiny" relative to other criminal justice issues. And, in an effort to "thicken the discussion a bit," Dan provides an effective account of why the death penalty may deserve special attention (although I surmise even Dan might be willing to concede that now it gets too much special attention).
Because I like my blog discussions (and my milkshakes) extra thick, let me fill out why I resist (and keep complaining about) the tendency to give excessive attention to the death penalty:
1. The death penalty is a regional issue with little or no impact in most of the country. As these DPIC statistics highlight, early 85% of all executions in the modern era have taken place in the south, and only three states (Texas, Virginia, Oklahoma) account for more than half of all executions. Thus, extended focus on the death penalty largely ignores day-to-day criminal justice realities in most of the country. To suggest a goofy (and inexact) analogy, would it make sense for persons concerned about national road safety to excessively study driving when the temperature is over 100 degrees, but not examine driving when it is cold and snowy?
2. Death is so different that it often can skew the development of the law. Much of habeas law has been badly distorted by the reality that death row defendants are (understandably) eager to delay their execution through litigation. Similarly, I fear that courts have resisted granting non-capital sentencing defendants more sentencing rights and protections because capital sentencing jurisprudence has become so ugly and burdensome.
3. Innocence issues aside, the very worst defendants get (very limited) benefits from all the time and attention give to capital cases. Everyone on death row has been convicted and sentenced to death for murder, and the only alternative to execution is typically life in prison. Putting innocence issues aside, all the time and energy spent on capital punishment functionally impacts whether a bunch of murderers get to spend more or less time locked in a cage before they die.
4. Our massive criminal justice systems implicate many issues that get little attention. As partially detailed here, nationwide there are roughly 40 people serving life sentences for every defendant on death row (some for non-violent crimes). More than 10,000 state felony sentences are imposed for every single death sentence imposed. Also, for each execution, roughly 11,000 persons are released from prison. And yet, the imposition of life sentences, state felony sentencing, and reentry issues together probably receive less than half of the attention given to capital punishment.
Around the blogosphere (Hamdan free)
Nearly every law blog will give you a taste of Hamdan, so I'll fill a gap by noting some interesting coverage of other issues:
- Dan Markel here at PrawfsBlawg recaps the debate over wrongful conviction rates that Dan Filler and I have been conducting (see here and here).
- The Ohio Death Penalty Information Blog has lots of coverage of Ohio's recent tweaking of its execution protocol, as well as other items worth reading.
- Andy Leipold guest-blogging at Volokh has this post summarizing his blogging about his findings of more acquittals in federal bnch trials than in federal jury trials. Andy reasonably speculates that the harshness of the federal sentencing guidelines could be a big part of the story.
A Blakely perspective on Clark
The Supreme Court's discussion of due process, insanity and mens rea today in Clark is another example of the challenging intersection of criminal law and psychology. The majority opinion, which rejects various due process claims, is narrowly written so Clark will likely not be a due process watershed ruling. Indeed, what I find most interesting about Clark is how the votes and opinions shake out as compared to cases in the Apprendi-Blakely line.
Intriguingly, Justice Souter authored Clark and he brought along Justices Scalia and Thomas from the Blakely five (as well the newbie Justices) in an opinion that is functional, relatively narrow, and emphasizes the importance of the "State chosen standard[s]." Meanwhile, Justice Kennedy authors a strong dissent, joined by Justices Stevens and Ginsburg, which accuses the majority of "fail[ing] to appreciate the implications for Winship." Winship, of course, is the key due process ruling clarifying the import and reach of the requirement that prosecutors prove elements of an offense beyond a reasonable doubt.
I am not sure what all this might means for the big Blakely cases on the horizon (perhaps nothing), but it confirms my view that, outside the death penalty context, the traditional liberal/conservative labels and expectations are hard to square with the actual outcomes in a range of large and small criminal justice cases the Court decides.
Record length opinions?
I will always remembers that all the Booker opinions ran 124 pages on the SCOTUS official website (including the syllabus) and that the Blakely opinion were a merciful 57 pages. I now see that today's Hamdan opinions addressing war crime tribunals is a full 185 pages (and is now available here), while even Clark on the insanity defense gets 70 pages (and is now available here).
I have often told students that Furman (which had nine separate opinions) is the longest decision in Supreme Court history, though I've never done a word-count. I suspect that Hamdan might make the top 5 for length. Happy reading.
Sentencing fireworks in the Sixth Circuit
While everyone is focused on the last day before summer vacation for the Supreme Court, the Sixth Circuit today issued two remarkable split rulings on sentencing matters. Here are highlights to two must-read opinions:
In US v. Vonner, No. 05-5295 (6th Cir. June 29, 2006) (available here), Judge Martin continues his terrific post-Booker work in a thoughtful majority opinion that declares a within-guideline sentence unreasonable for "lack of adequate explanation." (The first part of the opinion seems to be building toward a ruling that the sentence was substantively unreasonable, but a footnote at the end of the majority opinion suggests that the same sentence might be reasonable if adequately explained.)
Writing in dissent, Judge Siler in Vonner explains why he thinks the district court provided an adequate explanation for imposing a within-guideline sentence (and essentially blames the defense attorney for not asking the sentencing judge for a fuller explanation). Judge Siler concludes with these sentiments: "The numerous cases by our court on the reasonableness of sentences post-Booker have confused attorneys and district courts alike. Sentencing hearings will soon exceed trials in length, if we do not simplify the process." Funny, I do not recall "simplify the process of depriving people of liberty" in the sentencing directive of 3553(a). I guess I should read that provision more closely.
In US v. Sanders, No. 04-4540 (6th Cir. June 29, 2006) (available here), the issue is technically due process surrounding resentencing timelines. The remarkable sentencing backdrop in Sanders concerns whether the defendant should have gotted a 37-month sentence or a 180-month sentence for two relatively minor firearm offenses. And Judge Martin, this time writing in dissent, starts his opinion with this attention-grabbing paragraph:
In the district court's own words, "[t]he history of this case is indelibly etched in the court's memory." This case too will forever be etched in my mind as one of the most fundamentally unfair results that I have ever witnessed in thirty-plus years as a judge.
UPDATE: How Appealing has also taken not of Judge Martin's notable dissent in Sanders and he also quotes the extraordinary closing paragraph from the dissent here.
Final SCOTUS decisions of the Term
Wrapping up what I have come to view as a relatively uneventful Supreme Court Term for criminal law issues, the Court this morning issued its final two opinions: Hamdan addressing war crime tribunals and Clark on the insanity defense. Here an early report on the decisions from SCOTUSblog:
The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the "military commissions" illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.
The Court, in the only other decision, ruled that Arizona's law on the insanity defense does not violate constitutional due process. The ruling in Clark v. Arizona (05-5966) was written by Justice David H. Souter and divided the Court 6-3, although Justice Breyer also filed a partial dissent and partial concurrence. The ruling upheld what is called the "Mott rule" in Arizona, barring psychiatric evidence of a mental disorder short of insanity to offset prosecution evidence of criminal intent. The ruling also upheld Arizona's definition of the insanity defense.
Though Hamdan will surely get the most attention, I suspect Clark might have more points of interest for sentencing fans.
The biases in crack sentencing
Pardon the pun in the title of this post, but it sets up coverage of notable recent discussions of crack sentencing. First, through two strong commentaries, the Chicago Tribune here and the Washington Post here spotlight how the cocaine-induced death of basketball star Len Bias 20 years ago was a catalyst for the development of the 100:1 crack/powder ratio and also Congress's modern affinity for harmful mandatory minimum sentencing legislation.
Second, the Sacramento News and Review today has this terrific article providing a lot of background and insight on the Starks case in the Ninth Circuit, which may address the authority of district judges deviating from the crack guidelines after Booker. The on-line version of the article provides links to some of my coverage of this case and related issues.
A few recent related posts on crack sentencing:
- Crack sentencing and the anti-parsimony pandemic
- Crackin' good arguments, Gromit!
- Another crack at an amicus brief on crack sentencing
- Reflecting 20 years after the crack panic
- Noticing different legislative reactions to meth and crack
- New ACS issue brief on crack sentencing disparity
- Insightful report and analysis of Booker on crack
June 28, 2006
A batch of reasonableness rulings
Not long after I did this post about quiet Booker times, I saw noteworthy sentencing opinions in three circuits. AL&P has the (unpublished) action in the First Circuit well covered here and here and here, so I'll focus on rulings from the Fifth and Eleventh Circuits.
The Fifth Circuit gives the government two reasonableness wins in US vs. Candia, No. 05-30213 (8th Cir. June 28, 2006) (available here) (affirming as reasonable application of consecutive sentences); US vs. Medina-Argueta, No. 05-50474 (8th Cir. June 28, 2006) (available here) (affirming sentences as reasonable despite guideline calculation error harming defendant).
Meanwhile, the Eleventh Circuit gives the government a major reasonableness defeat in US vs. Gray, No. 05-30213 (11th Cir. June 28, 2006) (available here), by affirming a sentence imposed significantly below the guidelines range. Here's the key concluding paragraph:
[T]he district court gave specific, valid reasons for imposing a sentence that was lower than the guidelines range. The court's statements at sentencing reflect that it took into account Gray's age, his prior minimal criminal record, and his medical condition. These are all valid considerations because they relate to the "history and characteristics of the defendant." The court weighed these factors against "the nature and circumstances of the offense" and decided to impose a nonguidelines sentence. There is no indication that the court imposed the lower sentence solely because it disagreed with the guidelines. Rather, the court's statements show that it believed the 72-month sentence to be reasonable. Although Gray's sentence is less than half the 151 months that defines the bottom of the guidelines range, under the circumstances and given the district court's explanation we cannot say that is unreasonable in light of the § 3553(a) factors.
Carefully exploring the wrongful conviction problem
At the end of my first post on Marsh, I assailed Justice Souter's bald assertion that "false verdicts ... are probably disproportionately high in capital cases." Today over at Concurring Opinions, Dan Filler has this thoughtful response giving his account of six reasons why he thinks "there is a good chance that Souter is right and Doug is wrong."
As always, Dan raises a number of good points, and his comments prompted me to read this article, by Prof. Sam Gross et al. and entitled "Exonerations in the United States 1989 Through 2003," which is the most systematic examination of these issues that I could find. The authors rely on various numbers and hypothesis to conclude that criminal justice systems are "much more likely to convict innocent defendants of murder — and especially capital murder — than of other crimes, and a large number of false convictions in non-capital cases are never discovered because nobody ever seriously investigates the possibility of error."
My gut reaction to Justice Souter's initial assertion was based on my (unsubstantiated) belief that plea bargaining may contribute greatly to the wrongful conviction problem. No one plea bargains to a death sentence (though many do to avoid such a sentence); but there are roughly a million non-capital convictions from felony charges each year that are the result of plea deals.
Imagine if only .01% of all defendants who plead guilty when facing felony charges are actually innocent and plead guilty due to a (reasonable) fear of getting a much harsher sentence after possibly losing at trial. Even if 99.99% of all defendants who plead guilty are in fact guilty, we would still have roughly 1000 innocent people convicted of non-capital felonies each and every year. (If only 99.95% of all defendants who plead guilty are truly guilty, then we have 5,000 wrongful convictions nationwide resulting from pleas even before we start looking at trial error in non-capital cases.)
Of course, this scary number crunching does not directly address the rate of wrongful convictions across crimes, and I suppose I was a bit rash when expressing exacerbation about Justice Souter's assertion on that point. But I find the cumulative numbers far more disturbing than the rate, especially given the harshness of our non-capital sentences and the massive size of our criminal justice systems. It is, of course, a great tragedy if 1 of the roughly 100 death sentences handed down last year involved an innocent person. But I think we should be even more concerned that perhaps 1000, or 10,000, or even 50,000 other sentences were given to innocent persons even if the wrongful conviction rate in non-capital cases is lower than in capital cases.
All quiet on the Booker front?
With the Supreme Court issuing lots of criminal law opinions and with the death penalty doing its usual job of hogging up attention, I have not given much thought to the post-Booker world lately. Moreover, except for the regular wins by prosecutors in the Eighth Circuit (examples here and here and here), there have been surprisingly few notable Booker opinions in the circuit courts recently. And the Sentencing Commission, which was producing updates of post-Booker sentencing statistics on this page every few weeks not long ago, now has only produced one update in the last three month.
So I am now wondering, as we approach a full 18 months since the Booker ruling, has everyone started to settle in for the long haul with the Booker remedy?
Of course, the most critical institution to focus upon is Congress, which could use a debate over a legislative Booker to make crime and punishment issues the next political rhetoric topic du jour. As noted in this this recent post, a "topless guidelines" Booker fix bill has been in draft form for a number of weeks. But this bill has not yet even been introduced in the House, and there is no evidence that either body of Congress is ready to move quickly on a massive restructuring of the federal sentencing system.
Last September in this post, I had the temerity to ponder whether the Booker remedy might be here to stay. Nearly a year later, the prospects seem even brighter. Then again, maybe this is just the calm before the storm.
SCOTUS finishes half of its remaining criminal docket
As reported here at SCOTUSblog, the Supreme Court today did not hand down its opinions in Hamdan (on war crime tribunals) or Clark (on the insanity defense), but it did issue opinions in Sanchez-Llamas v. Oregon and Beard v. Banks. Here are the initial summaries provided by Lyle Denniston:
In a ruling written by Chief Justice John G. Roberts, Jr., the Court concluded that states may bar foreign nationals from raising the issue of their treaty rights to talk with a consular officer if they did not raise that issue at trial. The Court majority said that the outcome was dictated by the Court's 1998 summary decision in Breard v. Greene.
In a 5-3 ruling, the Court decided that prison officials may deny newspapers, magazines and photographs to their most dangerous inmates. The plurality opinion by Justice Stephen G. Breyer upheld such a ban. Justice Samuel A. Alito, Jr., took no part. He had dissented when the Third Circuit struck down the ban.
UPDATE: Unsurprisingly, both Sanchez-Llamas (available here) and Banks (available here) are long and full of stuff that likely will only interest sentencing fans with particular interests in international law or prison regulations. Based on a quick scan, I found Justice Thomas' separate opinion in Banks perhaps the most intriguing.
Notable execution in Tennessee and Texas
Though lethal injection litigation has halted executions in many states (details here and here), both Tennessee and Texas carried out executions in the last 24 hours. As detailed in this AP article, the Tennessee execution was one of two planned by the state for early this morning, but a stay has held up the second execution. This AP article about the Texas execution of a man thought responsible for 15 murder details the mental health and international law issues that surrounding the case.
"Hasta la vista, prison overcrowding!"
I cannot resist referencing one of my favorite action films to introduce the news that California Governor Schwarzenegger has called the state's legislature into special session to address prison overcrowding. Both TalkLeft and Crime and Consequences provide blog coverage of the news, and traditional media coverage can be found in the San Francisco Chronicle and the Los Angeles Times. Here are a few highlights from this official press release coming from the Governor's office:
Governor Schwarzenegger issued a proclamation today calling the Legislature into special session starting June 27 to address critical prison crowding and recidivism measures. The Governor has proposed several reforms to build new state prisons and local jail facilities, reduce crowding and move female inmates into community-based correctional facilities. Calling a special session enables the Governor to press for passage of these measures before the close of the Legislative session in August.
"Our prisons are at the crisis point because the State of California has not planned adequately for its future and has not faced up to the need to build new prisons as well as hire and train more officers. I am calling on my partners in the Legislature to join me in taking action to face these challenges head on," said Gov. Schwarzenegger. "By building more prisons, managing the inmate population more effectively and implementing common-sense measures that target the most dangerous criminals, we can greatly improve our prison and rehabilitation system.
"We can enact meaningful reform that ensures the safety of our correctional staff and makes sure more of our parolees stay out of prison after they're released. If we work together, I know we can do this and once again give California a model prison system." California's prison population is at an all time high of more than 171,000 inmates. The CDCR is double-bunking inmates and there are currently more than 16,000 inmates housed in prison gyms and day rooms throughout the various 33 correctional institutions.
Some related posts on California's prison woes: