July 15, 2006
Reasonableness patterns persist (and get noted) in the Eighth Circuit
The remarkable pattern of reasonableness review in the Eighth Circuit, where nearly all below-guidelines sentences get reversed and nearly all above-guidelines sentenced are affirmed, continued this past week with rulings in US v. Brown, No. 05-3896 (8th Cir. July 13, 2006) (available here), and US v. Meyer, No. 06-1283 (8th Cir. July 11, 2006) (available here) .
Brown reverses a below-guideline sentence and has some notable dicta about the crack-powder differential; Meyer affirms an above-guideline sentence and includes a notable footnote from Judge Heaney. Here are highlights from that footnote:
In the year and a half since the Supreme Court found the mandatory federal guidelines regime unconstitutional in United States v. Booker, 543 U.S. 220 (2005), our court has affirmed twelve sentences that exceeded the recommended guidelines range, including the instant case, but reversed only one. [Cites omitted]. Meanwhile, when it comes to sentences that are lower than the guidelines range, just the opposite trend has emerged. Our circuit has reversed sixteen of these sentences, and has affirmed only three. [Cites omitted].
Certainly, other considerations may reconcile the disparity in our court's disposition of these cases. Perhaps the United States Attorney does not regularly appeal downward variances, although the statistics indicate there are nearly as many appeals by the government as there are by defendants when a court sentences outside the guidelines range. It could be that the guidelines, which our court has noted "are fashioned taking the other [18 U.S.C.] § 3553(a) factors into account and are the product of years of careful study," United States v. Gatewood, 438 F.3d 894, 896 (8th Cir. 2006), nonetheless regularly fail to account for factors which would warrant higher sentences. I would hope that such a "careful study" as the Sentencing Commission has undertaken would have accounted for such factors.
Affirming upward variances at a rate of 92.3% while affirming downward variances at a rate of 15.8% could hardly be viewed as uniform treatment, and seems contrary to 18 U.S.C. § 3553(a)(6)'s concern with eliminating unwarranted sentence disparity. It is consistent, however, with our circuit's disposition of sentence departures before Booker. See United States v. Yirkovsky, 338 F.3d 936, 942-44 (8th Cir. 2003) (Heaney, J., dissenting) (noting that the Eighth Circuit affirmed upward departures at a rate much higher than with downward departures). It is difficult to accept that § 3553(a)(6) is satisfied where a circuit treats sentencing appeals in a consistently disparate manner.
Bottom's up in Cunningham
The bottom-side SCOTUS briefs in Cunningham, the California Blakely case, were due earlier this week, and I have a copy of the filing from the state of California as respondent. (The top-side briefs are available here.) The California brief, which can be downloaded below, confirms that the case will be as much about reasonableness review and the federal system after Booker as about the California system after Blakely. Consider this passage from the brief's argument summary:
The constitutionality of the California system is confirmed rather than undermined by the fact that the trial court's discretion in selecting among the three base-range terms is subject to the constraint, set out in California Penal Code section 1170(b), that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." Section 1170(b) is not a threshold requirement that renders an upper term sentence unauthorized in the absence of judicial factfinding beyond the verdict alone. Instead, section 1170(b) is a reasonableness constraint on the court’s selection of a term within the base range after the court has considered all of the relevant circumstances relating to the offense and offender. The court's selection of a sentence within the base range is reviewed for abuse of discretion. In this way, section 1170(b) operates like the reforms this Court adopted in Booker.
Recent related posts:
July 14, 2006
Latest USSC data: "traditional" departures making a comeback
I have had a chance to look over the lastest USSC post-Booker data, and I have concluded that, were the post-Booker story to become a Disney production, traditional departures might be cast in the role of Cinderella. Though I have long thought departures could be quite beautiful, they became the forgotten stepchild after Booker made the guidelines advisory. Indeed, the Seventh Circuit has gone so far as to call departures “obsolete” after Booker.
Yet, with the Sentencing Commission playing fairy godmother by urging federal judges to view departures as still beautiful after Booker, in 2006 we are seeing traditional departures making a notable comeback. The latest data from the USSC, which helpfully is focused on fiscal year 2006 data, allows for a comparison of sentencing the first 9 months after Booker (FY 2005 post-Booker) with sentencing in the following 8 months (FY 2006). And, in those periods, we see the fortunes of departures fall and then rise again.
According to the USSC statistics, in FY 2005 post-Booker, only 3.5% of sentences involved judge-initiated departures (up and down), while 11.1% of sentences involved Booker variances (up and down). But, so far in FY 2006, 6.1% of sentences have involved traditional departures, while only 8% of sentences involved Booker variances. (Comically, even though the Seventh Circuit has repeatedly called departures "obsolete," USSC data show that its district courts so far in FY 2006 have departed in 6.7% of all cases, placing this circuit above the national average.)
In some settings, the label for non-guideline sentences may not be much more than a matter of semantics. But even semantics can matter for those using the USSC data for policy advocacy. For example, one could validly say that, in FY 2006, the number of Booker variances has decreased by nearly 30%. However, one can also validly say that, in FY 2006, the number of departures have nearly doubled and that the number of within-guideline sentences remains well lower after Booker than before Booker.
July 13, 2006
Sentencing highlights (via How Appealing)
My limited on-line time means I barely have a chance to check e-mail this week. But, thanks to the always helpful Howard Bashman, I can link to How Appealing posts to keep up with some notable recent sentencing news:
- The Eighth Circuit has okayed some Arkansas sex offender laws, as detailed here.
- Texas may now have a law that could land doctors on death row, as detailed here.
- Witch injustice in Virginia has led to a pardon 300 years later, as detailed here.
July 12, 2006
Supreme Court grants execution stay in Missippippi
In addition to all sorts of good death penalty coverage, Capital Defense Weekly has the interesting news that the Supreme Court granted a last-minute stay of execution to a Missisippi defendant on Tuesday. More (sketchy) details about the case and the stay can be found in this AP story, which starts this way:
The U.S. Supreme Court halted the execution of Bobby Glen Wilcher on Tuesday just minutes before the condemned inmate was scheduled to die by lethal injection. Mississippi Department of Corrections Commissioner Chris Epps said Wilcher, who was scheduled to die at 6 p.m. at the Mississippi State Penitentiary at Parchman, had come closer to death than any inmate under his care before being issued a stay.
The commissioner said Wilcher would be given counseling because he was upset and crying because "he really wanted to die this afternoon." "I've never seen an individual so upset that he didn't get executed," Epps said.
Among the notable features of the stay was that it was granted by a vote of 6-3, with Justices Kennedy and Thomas supporting the stay, and Justices Scalia, Roberts and Alito in dissent.
UPDATE: SCOTUSblog has details on this intriguing case here.
Booker developments (that I can't fully process)
For some reason, I cannot currently access pdf files with my on-the-road computer. This means I can provide only a vague report on two notable Booker developments:
- From the 11th Circuit, this article reports that another below-guideline sentence has been reversed for being too lenient. The decision in US v. Martin, No. 05-16645 (11th Cir. July 11, 2006) (available here), is newsworthy in part because it involved a HealthSouth executive.
- From the Sentencing Commission, I see on this Booker webpage that the USSC has released another batch of post-Booker data. I doubt the broad data story has changed recently, but small new trends might be appearing as the Booker remedy settles in further.
If I get access to a pdf-friendly computer anytime soon, I might have some commentary on these developments.
July 11, 2006
Justice Kennedy assails long sentences again
Though Justice Kennedy keeps resisting Blakely, he also keeps speaking out against lengthy sentences. His latest comments, according to this report, came at the Ninth Circuit conference this week:
U.S. Supreme Court Justice Anthony M. Kennedy told a gathering of judges Monday that he is troubled by lengthy prison terms meted out in the U.S. "If an 18-year-old is growing marijuana for a friend, that's distribution," the Sacramento native told judges, lawyers and court officials at the conference, held at the Hyatt Regency. "If he has his father's .22 rifle, that's a firearm. That will get 15 years. "Did you know what 15 years was when you were 18? I didn't when I was 18."
Kennedy said that sentences in the U.S. are eight times longer than sentences in Europe and that California alone has 200,000 people incarcerated. He said there needs to be more education of the public on the length of sentences. "If sentences are to be a deterrent, what is the good of them if nobody knows how long they are?" he said.
According to additional news accounts linked here, Justice Kennedy also spoke out against the lobbying efforts of correctional officers' unions: "The fact that the prison guards' association lobbies for higher penalties is sick," Justice Kennedy said.
July 10, 2006
Hitting the road
This morning starts a lengthy sojourn east with multiple work and family stops. Because most of the family stops will mean limited internet connectivity, blogging will likely be light over the next few weeks. While I am away, sentencing fan can use the time to catch up on recommended reading and recent posts of note.
Another shame (sentence)
A federal judge in Missoula doled out a peculiar, almost Draconian punishment Thursday - a public shaming. Chief U.S. District Judge Don Molloy ordered a man who lied about his military career to march outside the Missoula County Courthouse wearing a sandwich board that says, “I am a liar. I am not a Marine.”
William Cody Horvath, 36, of Whitefish, pleaded guilty to making false statements earlier this year, admitting that in August 2001, he lied to his probation officer about having served in the U.S. Marine Corps in hopes of earning compassion....
Molloy also ordered Horvath to write letters of apology to several Montana newspapers, the U.S. Marine Corps, Veterans of Foreign Wars and the American Legion in Kalispell. The judge said Horvath must admit in the letters that he lied repeatedly about serving and being wounded.
Some prior posts in which shaming punishments are discussed and debated:
- For Shame ... I mean, Against Shame
- Reconsidering shame
- Ain't that a shame
- Creative (and effective?) shaming
- A shame-full proposal
- Shaming, remorse, apologies and victims
- More on the shame game
- The real shame about shaming punishments
July 9, 2006
New Justices and the evolution left on criminal justice matters
Some new SCOTUS commentaries spotlight the work of the new Justices and jurisprudential evolution. The New York Times focuses on the new Chief with pieces by Linda Greenhouse and Andrew Cohen; Tony Mauro has this Legal Times piece focused on the death penalty. All three are great reads, and I found these passages especially interesting:
From the Greenhouse piece: "Whether John Roberts's first year is a good predictor of his 10th, 20th or 30th is an open question. According to a new study by the political scientists Lee Epstein and Jeffrey A. Segal, Chief Justice Earl Warren voted against criminal defendants and civil rights litigants 62 percent of the time during his first term. Eventually, of course, he became their champion."
From the Mauro piece: "Says [a SCOTUS litigator]: 'The enormous moral gravity of the death penalty, and the risk of error, are really weighing on [Justice Kennedy].'
[Bryan] Stevenson believes that over time, similar concerns will weigh on Alito and Chief Justice John Roberts Jr., as well. Neither has had much exposure to death penalty cases. Fewer than 20 executions have taken place in Alito's 3rd Circuit in the past 30 years. Roberts handled none on the D.C. Circuit, though as a private attorney he helped represent a Florida death row inmate pro bono. Their support for capital punishment could soften as late-night appeals come into the high court week after week, Stevenson predicts. 'It's not until you are on the Supreme Court for several years that you get a feeling for how problematic and vexing the death penalty is. After a while you get exhausted and say, "We should be doing better."'"
The tendency of some justices to drift left while on the Court has been called the Greenhouse effect, on the (suspect) theory that elite SCOTUS reporters goad Justices to move left. In the criminal justice arena, I think a much better explanation comes from the distinct perceptions and perspectives a Justice has during tenure on the Court.
When on a lower court, judges see many relatively weak claims from (almost always) guilty defendants, while prosecutors typically pursue only the strongest claims on appeal. (This dynamic in part explains why the pattern of post-Booker reasonableness review heavily favors the government.) As a result, a lower court judge can believe the criminal justice system works relatively well, especially in settings (like the DC or 3d Circuits) where few corners are cut by prosecutors.
In contrast, on the Supreme Court, the cert process and pool tend to screen out weak claims by defendants. Also, the cert pool collects the most egregious examples of injustices to defendants from state and federal courts nationwide. As Justices repeatedly see only the ugliest examples of the criminal justice system gone awry, it is not surprising that some become progressively more sympathetic to defense claims over time.
In addition, Justices may come to lose faith in other institutions' efforts to remedy problems in the criminal justice system. Justice Blackmun's famous evolution to death penalty abolitionist clearly reflected his frustration that state legislatures and courts had not effectively remedied arbitrariness in capital cases. Justice Scalia explained in his Ring concurrence that his vote in Apprendi (and subsequently Blakely) reflected his concerns about legislatures whittling away jury trial protections and his belief that courts needed to step in.
A list of modern Justices who shifted left on criminal justice issues is lengthy: Warren, Blackmun, Stevens, O'Connor (in capital cases), Kennedy (especially in capital cases), Scalia and Thomas (in Sixth Amendment cases). Meanwhile, I cannot think of a single modern example of a Justice shifting right on criminal justice issues during tenure on the Court.
These realities suggest that the big question looking ahead may not be whether Justices Alito and Roberts might move left on criminal justice issues, but rather just how far left they might migrate.
Week in review
Though a short week because of the holiday, the start of July still had some sentencing highlights:
SUPREME COURT DEVELOPMENTS AND COMMENTARY
BOOKER DEVELOPMENTS AND COMMENTARY
- Will there be any Booker fireworks this summer?
- YLJ Pocket Part review of appellate review after Booker
- Eleventh Circuit reverses below-guideline sentence
- Tracking reasonableness review outcomes
OTHER DEVELOPMENTS AND COMMENTARY
- Considering castration for certain sex offenders
- Reviewing the lethal injection scrummages
- Liberty versus security in the war on ... sex offenders
- Ninth Circuit says CVRA does not give victim right to PSR
Will there be any Booker fireworks this summer?
A few weeks ago, I noted here how quiet the post-Booker world seems. After Congressman James Sensenbrenner sent up incediary Booker bottle rockets back in March (details here and here), I was prepared for a summer filled with Booker fix fireworks. But, with July 4th now come and gone, I am thinking we might have an unusually calm pre-election sentencing summer.
Though my ivory-tower perspective may be skewed in various ways, here is my current branch-by-branch take on the post-Booker landscape:
The legislative branch: The Booker ruling put the sentencing ball in Congress's court, but Congress has shown little interest in playing over the last 18 months. A few bills for topless guidelines have been discussed, but no serious Booker fix momentum has ever developed. I am, of course, pleased that the many dire predictions about what Congress would do after Booker have not (yet) come true. Post-Booker legislative (non)developments provide another reminder of the complicated and dynamic political and practical realities that surround sentencing reform.
The executive branch: The Justice Department has been advocating a "minimum guideline system" since last summer, but its push for such a system seems tepid. My latest thinking is that DOJ does not want all the messy litigation and uncertainty that would follow enactment of a topless guideline system. Rather, advocacy of such has been an effective means for encouraged federal judges to play nice with advisory guidelines, which in turn has presereved much of the pre-Booker system.
The judicial branch:
- The Sentencing Commission has crunched a lot of numbers since Booker, but it has done precious little policy work and has avoids post-Booker "hot spots" like crack sentencing or the use of acquitted conduct. Because the guidelines have remained king after Booker, it is perhaps not surprising that the USSC is content to produce lots of data and few recommendations.
- The lower courts have divided over many post-Booker particulars, but the circuits have ensured that the guidelines are still the center of the federal sentencing universe.
- The Supreme Court has steered clear of any Booker follow-up so far, but next Term's consideration of Blakely's applicability in California in Cunningham could have significant ramifications for federal sentencing after Booker. Also, if Congress continues to show little interest in a Booker fix, I suspect the Court will seriously consider taking up some post-Booker issues directly next Term.
Marriage is a sacred institution ... even for killers
As documented by this AP story, anyone keeping a list of all the benefits of marriage now needs to include a sentencing section:
A Sacramento Superior Court judge has postponed sentencing a man and woman convicted on homicide charges so the couple can get married. Relatives of the victim protested the delay. "This is not right," said Leona Lee, sister-in-law of 39-year-old Travis Hempstead, who was fatally shot last year after what investigators described as an argument over bread at a Togo restaurant in North Sacramento.
Feuy Saelee, 20, and Anousone Phongviseth, 22, pleaded guilty to the shooting. Saelee, a Togo employee at the time, argued with Hempstead and then complained to Phongviseth about the incident, authorities said. Phongviseth shot Hempstead later that day while he was walking down the street.