January 21, 2006
The state of the death penalty in the state of California
California, the state with by far the largest death row in the nation, carried out one of the last executions in 2005, the first execution on 2006, and it has another execution scheduled for next month. Nevertheless, this San Francisco Chronicle article reports that "officials say the short-term cluster of executions doesn't foreshadow a long-term acceleration in a state where condemned prisoners are more likely to die of natural causes than of lethal injection."
The SF Chronicle article provides an effective overview of the state of the death penalty in California. It also breaks down the 60 executions in 2005 by state, which in turn suggests an excellent trivial question for death penalty buffs: "What three states, behind perennial execution leader Texas, tied for the second highest number of executions in 2005?" Any reader able to answer this question without looking it up wins my respect (and sympathy) for being an even bigger sentencing geek than me.
Florida Supreme Court rejects challenge to lethal injection
As detailed in this AP article, earlier this week the Florida Supreme Court ruled that a "2005 study indicating condemned inmates may suffer pain when being put to death by lethal injection is inconclusive and no reason to delay the scheduled execution of a convicted killer." The ruling came in Hill v. Florida, No. SC06-2 (Fla. Jan. 17, 2006) (available here), which provides fairly summary treatment of the lethal injection claim and other arguments raised by the defendant. Perhaps the most notable aspect of the Hill ruling is that one Justice, writing in dissent, explains why it would be valuable to hold an evidentiary hearing in this case to explore Florida's lethal injection protocol.
Related coverage of this issue in prior posts:
- The legal attack on lethal injection
- Are four Justices ready to grant cert. on the constitutionality of lethal injection protocols?
- More on constitutional challenges to lethal injection
- Notable ruling on constitutionality of lethal injection
- Major Tennessee ruling upholds lethal injection protocol
UPDATE: This newspaper article provides a broader account of a range of issues surrounding Florida's use of the death penalty and upcoming Sunshine State executions.
Virginia Supreme Court rejects novel Vienna Convention remedy
As detailed in this post, earlier this month a state court judge in Virginia issued an interesting and ground-breaking opinion which declared that prosecutors could not seek the death penalty in a capital murder case because police had violated the defendant's Vienna Convention rights. But, earlier this week, as detailed in this Washington Post article, the Virginia Supreme Court reversed this ruling and declared "that prosecutors can ask for the death penalty in the case of a Vietnamese man accused of strangling a Fairfax County woman and her 22-month-old daughter."
January 20, 2006
Ninth Circuit discusses victim's right to allocute at sentencing
Addressing an important and essentially new issue of sentencing procedure, the Ninth Circuit today in Kenna v. US District Court for the Central District of California, No. 05-73467 (available here), addresses "whether the Crime Victims' Rights Act, 18 U.S.C. § 3771, gives victims the right to allocute at sentencing." Per Circuit Judge Alex Kozinski, the Ninth Circuit panel decided to grant a writ of mandamus to ensure victims could speak at a defendant's sentencing hearing. Here is the opinion's conclusion:
We grant the petition for writ of mandamus and hold that the district court erred in refusing to allow Kenna and other victims to speak at Zvi Leichner's sentencing hearing. The district court shall deem timely a motion pursuant to 18 U.S.C. § 3771(d)(5) filed by Kenna or any other of Zvi's victims within 14 days of the date of our opinion. If the district court grants the motion, it shall conduct a new sentencing hearing, according Kenna and the other victims the right to speak as described above.
Writing separately to explain why he is "dubitante" about the panel's main opinion, Judge Daniel Friedman (sitting by designation) explains that "[a]lthough I agree that the writ should issue, I am concerned about the seemingly broad sweep of the opinion."
Related posts about the interesting and dynamic issue of victims' rights at sentencing:
UPDATE: The San Francisco Chronicle has this brief account of Kenna.
Another crack at an amicus brief on crack sentencing
As detailed in this post, last month Professor Mark Osler (with some input from me) drafted an amicus brief which was to be filed in the First Circuit defending the reasonableness of a district judge's decision not to follow the guidelines' 100-1 crack-powder ratio. However, before that brief was filed, the First Circuit spoke to this issue through its questionable Pho decision (basics here, critical commentary here and here and here).
After seeing our draft amicus effort, Mark and I were contacted by a lawyer in the Ninth Circuit who was facing an issue on the flip side of Pho: in US v. Starks, the district court did not want to follow the guidelines' 100-1 crack-powder ratio, but the government convinced the court that, even after Booker, it lacked authority to sentence outside the crack guidelines. Concerned that the ruling in Starks eviscerates the merits ruling in Booker and makes the guidelines mandatory again, we've flipped our amicus brief to argue to the Ninth Circuit that the district court's treatment of the guidelines as essentially mandatory is an error of law.
This latest amicus effort was filed today, and I have made it available for download below. Here are selections from the brief's summary of the argument:
The District Court erred in holding that the guidelines are mandatory in the absence of individualized circumstances. In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held that the federal sentencing guidelines are now advisory, not mandatory. Importantly, Booker did not include the limitation read into that decision by the district court and the government — that a sentencing judge's use of discretion may result in a non-guideline sentence only when some unusual or unique fact exists in the case. At issue is not the reasonableness of the sentence imposed, but the process; the case should be remanded for reconsideration because the sentencing judge made an error of law in finding he lacked discretion to give the sentence he believed was most appropriate.
Further, the District Court failed to consider the sentencing factors mandated in 18 U.S.C. § 3553(a). Had the sentencing judge properly considered those factors, he would have independently assessed the seriousness of crack cocaine offenses and relied on that assessment in sentencing Mr. Starks. In particular, 18 U.S.C. § 3553(a)(2)(A) commands a sentencing judge to consider the "seriousness of the offense." This statutory phrase cannot be interpreted to mean that the court should consider the seriousness of the offense as reflected in the guidelines (ie, the 100-to-1 powder-to-crack ratio), or the seriousness of the offense in light of individualized factors relating to the crime or defendant, because those factors are independently identified for separate consideration in that same statute (at § 3553(a)(4) and (a)(1), respectively)....
Finally, affirmance of the district court's sentencing decision in this case would re-introduce limits on judicial discretion which will result in a recurrence of the violation of the Sixth Amendment that led to the Booker decision in the first place.
UPDATE: A press release about the Starks brief, as well as links to other materials in the case, is available here from the ACLU.
A quick sentencing tour around the circuits
Compared to all the ground-breaking circuit action earlier this month (highlights here and here), the federal appellate courts have been a little quieter this week. Nevertheless, in addition to interesting Booker work in the Ninth Circuit noted here and here, other circuits have been churning out sentencing opinions of potential significance. Helpfully, Appellate Law & Practice, Decision of the Day, and the Federal Defender Blogs do a fine job keeping up with a lot of the action I may miss.
In addition to noting these terrifically helpful blogosphere resources, I wanted to spotlight the work of the Sixth Circuit this week. The Sixth Circuit's clarification of reasonableness review in McBride (details here) is worth a close read from everyone trying to make sense of this amorphous concept. And, the Sixth Circuit in the last two days has also covered important related ground in US v. Till, No. 04-2128 (6th Cir. Jan. 20, 2006) (available here) and in Logan v. US, No. 04-5325 (6th Cir. Jan. 19, 2006) (available here).
January 19, 2006
California death penalty moratorium proposal dies
As detailed in this AP article, an "attempt to impose a two-year moratorium on carrying out California's death penalty failed to pass a key Assembly committee Thursday, ending its chances for the year." Additional reporting on this interesting legislative development comes from this Reuters account.
On law reviews, blogs and scholarly diversity
Though not about sentencing, I am intrigued by the discussion kicked off by Rosa Brooks at LawCulture through this post about the inadequacies of law reviews and the future of legal scholarship. Many others have already weighed in response (here and here and here), and Paul Horowitz's post "Scholarly Writing For...Whom?" is especially thought provoking. In addition, Dan Solove has jumped in with an engaging entry over at Concurring Opinions that asks "Does Scholarly Writing Have to Be Tedious?"
I am intrigued by this dialogue in part because I am in the midst of developing a (non-tedious?) piece about the potential of blogs as a medium for legal scholarship. (This piece hopes to build on some of the themes developed in my posts here and here exploring how blogs might be improved as an academic medium.) Consequently, I especially like that Orin Kerr has this reaction to concerns about tedious legal scholarship: "Maybe the answer is more lawprof bloggers. Blogging pushes you to write clearly and simply; the format rewards clarity of expression more than traditional law review articles do."
Here I want to spotlight the concept and value of diversity in considering these issues. I have the good fortune to edit two peer-review journals — the Federal Sentencing Reporter and the Ohio State Journal of Criminal Law — which, through their distinctive structures, address in different ways some of the problems with traditional law reviews noted in this blogospheric dialogue. New technologies make it cheaper and more efficient to experiment with distinctive fora for scholarly expressions (consider, e.g., SSRN which is also now, as seen here and here and here, generating blog debate). In my view, the legal academic community ought to continue to explore and embrace new forms of traditional scholarly fora (like different kinds of law journals) and also radical new scholarly fora (like blogs).
Moreover, my own experience with this blog and other forms of scholarship leads me to believe that there cannot and should not be one-size-fits-all answers to the issues and questions being raised. For some topics at some moments, the traditional law review form may be ideal. See, e.g., the OSJCL's recent symposium issue reflecting on the Warren Court's Criminal Justice Revolution. For other topics at some moments, a tweaked law review form may be ideal. See, e.g., the Stanford Law Review's recent sentencing reform issue. For still other topics, a whole new model may be appropriate. See, e.g., the always timely issues considered at Legal Affairs' Debate Club.
UPDATE: Rosa Brooks has followed up with this interesting addition to all the law review/scholarship buzzing.
ANOTHER UPDATE: I am intrigued and pleased to now see that Ann Althouse has jumped into this discussion with this post entitled "Blogging as an alternative to law reviews -- and as a model for them." It appears as though Ann's views have evolved somewhat since last August when she seemed to scoff at my exploration of how we might improve blogs as an academic medium.
Two potent commentaries on the state of federal sentencing
Though locked behind subscriptions, there are two recent must-read pieces about the state of federal sentencing which everyone should try to access:
- To celebrate Booker's anniversary (background here and here), US District Judge Lynn Adelman and Jon Deitrich have a terrific piece in Legal Times entitled "Judgment on Booker?". The piece argues that the system created by Booker "may be as close to ideal as we're likely to get," and closes with the astute suggestion that "when Congress evaluates the post-Booker system, its principle inquiry should not be how many sentences are within the guidelines and how many without, but rather whether judges are providing persuasive explanations for the sentences they impose."
- To ensure nobody gets too giddy about federal sentencing realities, the New York Law Journal today has an article headlined "Small-Time Dealer Gets Mandatory Life Sentence," which reports on US District Judge David Hurd's complaints about having to impose a mandatory life sentence in one case. Here is the article's opening paragraphs:
Forced to impose a sentence he deemed unjust, a Northern District judge took sharp aim last week at a federal statute that required him to impose a life-without-parole term on a 32-year-old "relatively small-time drug dealer" with an IQ of 72.
Judge David N. Hurd said child rapists and murderers will go free on parole while Justin D. Powell languishes in prison for life, largely because the defendant was convicted of drug crimes twice during his teenage years, more than a decade before the instant offense. Because of those prior convictions, the sole sentencing option was life, Judge Hurd said.
"The increment of harm in this case bears no rational relationship to the increment of punishment that I must impose," Judge Hurd said at a sentencing proceeding last week in Utica. "This is what occurs when Congress sets [a] mandatory minimum sentence which distorts the entire judicial process.... As a result, I am obligated to and will now impose this unfair and, more important, unjust sentence."
UPDATE: Thanks to TalkLeft, I see that the full NYLJ article is now available here. As I said before, it is a must-read. TalkLeft in this post reacts to the sentence Judge Hurd felt compelled to impose and attacks the application of harsh mandatory minimum sentencing laws.
Notable (and sneaky?) footnote in Ninth Circuit ruling
In another of the seemingly endless rulings about how to apply federal sentencing rules about what qualifies as a "crime of violence," today a panel of the Ninth Circuit in US v. Guerrero-Velasquez, No. 05-30066 (9th Cir. Jan. 19, 2006) (available here), has dropped a notable Booker footnote. Here is what Judge Jay Bybee says for the Ninth Circuit in footnote 1 of Guerrero-Velasquez:
We realize, of course, that the sentencing guidelines are advisory and not mandatory. See United States v. Booker, 543 U.S. 220 (2005); United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). However, the guidelines are still an important aid for district judges seeking to determine the appropriate sentence for a defendant and which help to maintain uniformity in sentencing throughout the country. It is therefore appropriate that we consider whether the district judge correctly interpreted and applied the guidelines below. We also note that, on appellate review, a sentence suggested by the guidelines is presumptively reasonable.
I have bolded the final line of this footnote because I believe it breaks new ground for the Ninth Circuit. Though a few other circuits have expressly stated that a within-guideline sentence is "presumptively reasonable," I do not believe that the Ninth Circuit has a ruling to this effect. (Notably, Judge Bybee does not provide a cite for this quite significant assertion, and it is double-dicta in the context of the issues in Guerrero-Velasquez.)
I may have missed the Ninth Circuit previously declaring that a within-guideline sentence is "presumptively reasonable" after Booker (and perhaps readers or the folks at the Ninth Circuit Blog might clear this up for me). But if I am right that this assertion does break new ground for the Ninth Circuit, I am a bit troubled that this important conclusion gets tucked into a footnote in a case which is not even about reasonableness review. Or, to put my concern in terms of the Sixth Circuit's colorful metaphor, it seems that in Guerrero-Velasquez the Bybee bullfrog was eager to jump out of the Ninth Circuit's Booker wheelbarrow.
UPDATE: This post by Jon Sands at the Ninth Circuit Blog confirms my concerns about the unreasonable reasonableness dicta in Guerrero-Velasquez.
The joys of Debate Club
As I had hoped, the Legal Affairs' Debate Club is again proving to be a fruitful environment for developing a number of interesting post-Booker ideas. Professor Frank Bowman and I both now have numerous extended entries up at this link, and I hope readers with any reactions might use the comments to this post as a forum for further debate.
Fascinating follow-ups revealing sentencing's ugly underbelly
Both the MSM and the blogosphere have provided fascinating follow-ups on two fronts I have been following lately:
- This article from North Carolina provides more background on the appeals from sentences imposed by a state judge who "often lectured black defendants during her five years on the bench -- saying that they showed disrespect for the civil rights struggle by committing crimes." I first discussed these development in an update to this MLK Day post asking "Should criminal justice reform be the new civil rights movement?"; the newspaper article details that the judge, whi has now submitted her resignation, has been suspended by the state's Chief Justice for "persistent intemperance" and for demonstrating "a habitual pattern of misconduct in office."
- This post from Tom Kirkendall at Houston's Clear Thinkers minces no words when discussing the latest delay in the resentencing of Jamie Olis (discussed here). Tom asks "when the mainstream media will pick up on the outrageous conduct of the Justice Department in the sad case of former mid-level Dynegy executive Jamie Olis" and he asserts that "justice, respect for the rule of law, the principle of prosecutorial discretion, common sense and human decency continue to be the casualties of the sad case of Jamie Olis and other dubious prosecutions of corporate agency costs in the post-Enron era."
January 18, 2006
Interesting Seventh Circuit opinion on Supermax prison treatment
Thanks to How Appealing, I see that Judge Richard Posner has written an interesting opinion in Scarver v. Litscher, No. 05-2999 (7th Cir. Jan. 18, 2006) (available here), about the treatment of a prisoner in Wisconsin's Supermax prison system. As is true with many opinions of Judge Posner, there are quotable flourishes throughout Scarver. For example:
The murderous ingenuity of murderous inmates, especially in states such as Wisconsin that do not have capital punishment, so that inmates who like Scarver are already serving life terms are undeterrable, cannot be overestimated. Prison authorities must be given considerable latitude in the design of measures for controlling homicidal maniacs without exacerbating their manias beyond what is necessary for security. It is a delicate balance.
UPDATE: Providing a fitting follow-up to this post, Dan Filler over at Concurring Opinions explores these provocative questions:
First, is Supermax punishment so cruel that it is inherently unconstitutional? Second, even if not, should legislatures have to specifically authorize Supermax sentences for particular crimes?
AND: Will Baude over at Crescat Sententia has additional thoughtful thoughts here.
Ninth Circuit affirms another within-guideline sentence
The Ninth Circuit today issued a brief decision affirming as reasonable a sentence at the top of the applicable guideline range in US v. Plouffe, No. 05-30043 (9th Cir. Jan. 18, 2006) (available here). Plouffe not only keeps us waiting still for a single within-guideline sentence to be deemed unreasonable after Booker, but it also has this notable passage about co-defendant disparity:
That Plouffe's sentence is nearly twice as long as the 37-month sentence imposed on his co-defendant, Mad Plume, is not grounds for finding that Plouffe's sentence is unreasonable, as urged by Plouffe. Rather, this result is consistent with the directive of Booker that sentencing courts are to consider how the sentencing factors apply to each defendant and determine whether an individualized sentence is warranted. Because Plouffe's criminal history was different from that of his co-defendant, the district court had a reasonable basis under the advisory Sentencing Guidelines for the difference in the sentence each received, and this difference does not require relief for Plouffe.
Olis sentencing delayed (and bail denied again)
As detailed in this AP story, former Dynegy executive Jamie Olis may not be re-sentenced until this summer, apparently because "a government expert needs more time to study the case and suggest an appropriate prison term." Notably, in conjunction with this development, US District Judge Sim Lake "denied a request from Olis' appeal attorney, David Gerger, to release Olis on bond until he is re-sentenced."
Since Jamie Olis has been in prison since May 2004, it now appears that he likely will have served over two years before his resentencing. Consequently, the suggestion made by the Houston Chronicle's for a new sentence of time served will seem even more sensible by the time of the Olis resentencing. But, the fact that Judge Lake did not grant bail suggests he has in mind a larger number, and I am sticking to my prediction that Judge Lake will impose a new sentence on Jamie Olis somewhere in the neighborhood of 5 to 7 years.
Related posts with more background on the Jamie Olis case:
- Cooperating Dynegy executives get relatively light sentences
- Will it be a happy new year for Jamie Olis?
- Government arguing for 15+ years for Jamie Olis
- Attorneys for Jamie Olis urging a 5-year cap for resentencing
- Jamie Olis sentence overturned by the 5th Circuit!
- Potent commentary on Olis case
- Are the federal guidelines too tough on white-collar offenders?
Alabama sentencing reform moving forward
As detailed in articles here and here, the "Alabama House passed eight bills Tuesday in a package supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons." A basic list of the reforms in these bills is available here. The Alabama Sentencing Commission, which recommended these bills, has a lot more details about these reforms at this webpage and in this legislative pamphlet.
One bill provides for the adoption of voluntary sentencing guidelines. Here is how the Alabama Sentencing Commission describes the bill in its legislative pamphlet:
In compliance with the directives included in the Sentencing Reform Act of 2003, this bill proposes adoption of voluntary sentencing standards for 26 felony offenses. These sentencing recommendations are historically based voluntary, non-appealable sentence recommendations developed for personal, property and drug crimes, representing 87% of all felony convictions and sentences imposed in Alabama over a five year period. The recommended sentence ranges and dispositions for the covered offenses are in lieu of the wider ranges under existing statutory law and provide uniform sentencing recommendations for trial court judges in sentencing convicted felons. These standards, which are voluntary, address both the length of sentences and the disposition of the offender (probation, intermediate alternative or prison).
Notably, proposals for the adoption of voluntary guidelines have been making the rounds for a few year, but Alabama prison overcrowding crisis seems to have finally pushed the reform forward. A few months ago, a state Task Force on Prison Crowding released this report which suggested enactment of these guidelines was key to dealing with the prison overcrowding problem.
January 17, 2006
The possible impact of a Sca-Roberts on sentencing jurisprudence
From a quick review, the Supreme Court's 6-3 ruling today in the assisted suicide case, Gonzales v. Oregon, seems rich with meaning and ironies. Of course, I am always seeing sentencing angles (even when they are not there), and today that angle comes from the fact that Chief Justice Roberts joined Justice Scalia's dissenting opinion in Gonzales v. Oregon. When considered together with CJ Roberts' vote and opinion assignment to Justice Scalia in the 5-4 capital case decided last week (details here), I cannot help but observe that the new Chief seems so far to be quite in tune with Justice Scalia's view of the jurisprudential world.
Of course, though some may bemoan this (admittedly limited) evidence of a "Sca-Roberts," criminal defendants (at least those not on death row) should be pleased my over-reading of these early tea leaves. As I explained in this post following the Alito nomination, from the perspective of a criminal defendant, a Supreme Court filled with justices like Antonin Scalia would not always be so bad because Justice Scalia's constitutional vision sometimes leads him to liberal results: consider Justice Scalia's work in Blakely, where he boldly asserts that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," and Justice Scalia's work in Sullivan, where he argues that judges in some cases should not be permitted to affirm convictions by declaring certain constitutional violations harmless.
Recalling the current SCOTUS sentencing head-count on Apprendi-Blakely-Booker issues, it is remarkable to think about what might happen if Justices Roberts (and Justice Alito as well) were to embrace Justice Scalia's perspectives on jury trial rights. Blakely's reach and impact might ultimately be even broader than anyone has predicted.
The joys of the Blakely-Booker interregnum
The start of the Seventh Circuit's opinion today in US v. Hawk, No. 04-4112 (7th Cir. Jan. 17, 2006) (available here), allows us all to think back to those salad days between the Supreme Court's decisions in Blakey and Booker:
Between the appearance of Blakely v. Washington, 542 U.S. 296 (2004), in which the Supreme Court found that Washington state’s sentencing scheme violated the Sixth Amendment, and that of United States v. Booker, 543 U.S. 220 (2005), in which the Court extended Blakely's holding to the federal Sentencing Guidelines, the federal sentencing world was in limbo. No one knew whether the Court would distinguish the Guidelines from the state law it had considered in Blakely, scrap the Guidelines altogether, or come up with some intermediate ruling. This case concerns a sentence imposed during this period of uncertainty. Although the district court was remarkably prescient and predicted the outcome of Booker by treating the Guidelines as merely advisory, it moved a little too quickly through Quill R. Hawk’s sentencing hearing. The court accepted the recommendation in Hawk's Pre-Sentence Report (PSR) of a 121-month term, but it failed to make the findings of fact necessary to support that sentence. This omission prevents us from assessing the reasonableness of the sentence; we therefore vacate Hawk's sentence and remand for resentencing.
Sixth Circuit clarifies reasonableness review
The big legal news this morning comes from the Supreme Court's work in the assisted suicide arena (see SCOTUSblog coverage here; How Appealing here). But, back in the post-Booker trenches, I continue to track all the fun the circuits are having this month unpacking the concept of reasonableness review. I assembled some of the most consequential rulings here and here, and this morning the Sixth Circuit has gotten into the act again with a thoughtful ruling in US v. McBride, No. 04-4347 (6th Cir. Jan. 17, 2006) (available here).
McBride cover a lot of important basic ground concerning the ground rules for reasonableness review, and does so in a cogent and engaging way. McBride has too many facets to summarize, and thus I will just spotlight a few potent quotables:
Achieving agreement between the circuit courts and within each circuit on post-Booker issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow. The courts have particularly struggled to — and often failed at — properly applying the remedial portion of Booker along with the remedy. One murky area is what to do about the pre-Booker concept of "departures" under the Guidelines now that the Guidelines are merely advisory....
Before Booker, we reviewed the district court's sentence to determine whether it properly calculated and applied the Guidelines. Now when a district court imposes and we review a sentence for reasonableness, the focal point is on 18 U.S.C. § 3553(a). In section 3553(a), there are numerous factors for a court to consider, and under Booker's remedial holding, the Sentencing Guideline range is one of those factors. That is, while the Guidelines remain important, they are now just one of the numerous factors that a district court must consider when sentencing a defendant.
Though McBride is the most important read from the Sixth Circuit today, interesting sentencing issues are also resolved in US v. Arroyo, No. 04-4207 (6th Cir. Jan. 17, 2006) (available here) and in US v. DeCarlo, No. 04-5813 (6th Cir. Jan. 17, 2006) (available here).
California carries out first execution of 2006
elAs detailed in this Los Angeles Times article, "California prison officials executed 76-year-old murderer Clarence Ray Allen at the state prison here early today after his final appeal was turned down by the U.S. Supreme Court." The LA Times article effectively reviews the issued that surrounded Allen's final legal appeals and request for clemency. A lot more background on the case can be found in recent posts here and here.
Interestingly, as revealed in this order, the denial of Allen's appeal by the Supreme Court generated one dissent. Justice Stephen Breyer, who has previously expressed his view that an extended stay on death row might be constitutionally problematic, had this to say in dissent from the rejection of Allen's appeal:
Petitioner is 76 years old, blind, suffers from diabetes, is confined to a wheelchair, and has been on death row for 23 years. I believe that in the circumstances he raises a significant question as to whether his execution would constitute "cruel and unusual punishment." U. S. Const., Amdt. 8. See Knight v. Florida, 528 U. S. 990, 993 (1999) (Breyer, J., dissenting from denial of certiorari); Elledge v. Florida, 525 U. S. 944 (1998) (Breyer, J., dissenting from denial of certiorari); Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., respecting denial of certiorari). I would grant the application for stay of execution.
UPDATE: Howard Bashman has collected more coverage of the Allen execution here.
January 16, 2006
Debating the future of federal sentencing
Last year, as the Supreme Court prepared to hear argument in Booker and Fanfan, Professor Stephanos Bibas and I had the pleasure of participating in Legal Affairs' Debate Club to explore the question "Can the Court clean up its Blakely mess?". In my (biased) opinion, we plowed a lot of important ground in that debate, and the points made therein remain timely.
I am hopeful that, now with Professor Frank Bowman as my new debate partner, the Legal Affairs' Debate Club will agin prove to be a fruitful environment for developing sentencing reform ideas. Celebrating the anniversary of the Supreme Court's decision in Booker (background here and here), our question for this week is simply "What is the future of federal sentencing?". I have my first entry up here at the Debate Club, and Frank will be chiming in soon.
Why Kaua may be the circuit decision of the month (so far)
January is living up to my prediction as an amazing sentencing month, although I did not predict that we would get so many important and consequential circuit rulings to kick off the new year. Indeed, the 1st Circuit's decision in Pho, the 4th Circuit's decision in Clark, the 8th Circuit's decision in Mickelson, and the 11th Circuit's decision in Williams are arguably among the most important circuit decisions concerning Booker that we've seen in many months.
But there is one recent circuit decision that should not be overlooked in all the Booker action: the Ninth Circuit's habeas decision in Kaua (discussed here), which ruled (despite a contrary opinion from the Hawaii Supreme Court) that an aspect of Hawaii's sentencing system violates the Apprendi-Blakely rule. Here are just a few reasons why Kaua strikes me as especially important:
- The decision rejects an effort to expand the ambit of the "prior conviction" exception to the Apprendi-Blakely rule, and thus reinforces the Ninth Circuit's view that Blakely announced a bright line.
- The decision disagrees with the Second Circuit's ruling in Brown v. Greiner (basics here, commentary here) addressing a similar issue in New York sentencing law.
- Because the state lost, and because Kaua rejects a considered view of Hawaii's Supreme Court, the posture of this case suggests cert. might be sought (and might be granted?) to explore the status and scope of the "prior conviction" exception.
- The Ninth Circuit's willingness to enforce its bright line view of Apprendi and Blakely in a habeas setting strongly suggests that the Circuit will not look kindly upon the state of California's efforts to preserve its sentencing system in the wake of Blakely. Though I suspect the Supreme Court will be examining California's Blakely dodge before California habeas cases make their way to the Ninth Circuit, Kaua will loom especially large if the Supreme Court decides not to take a California Blakely case soon.
January 16, 2006 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the States, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Should criminal justice reform be the new civil rights movement?
From my sentencing-centric perspective, reflecting on a day honoring Martin Luther King leads me to the view that Dr. King, were he still alive, would be focused on criminal justice reforms. So many aspects of the criminal justice system — from racial profiling to jury selection, from drug sentencing to the administration of the death penalty — highlight that our system is not color-blind (or at least not color-neutral). And, because of felon disenfranchisement and other collateral consequences, the enduring impact of a racially skewed criminal justice system cannot be overstated.
Of course, we have come a long way from Scottsboro (background here and here and here). Nevertheless, potent report on racial inequities from The Sentencing Project (available here and here) and the posts linked below all highlight that we still clearly have a long way to go:
- Sobering realities of race and the death penalty
- New California study on race and death penalty
- Race and reform
- Racial disparity and sentencing reform
- New (depressing) report on race and increased incarceration
- Drugs and racial discrimination
- A call for USSC to focus on racial disparity
- Fascinating and sobering evidence of sentencing discrimination
- Race, mandatories, discretion and activism in Arizona
UPDATE: Providing a fitting follow-up, Scott at Grits for Breakfast has this interesting post in which he details why "empirically," criminal justice is already a major focus at least of Texas' civil rights movement."
ANOTHER UPDATE: On this theme, a terrific North Carolina lawyer has forwarded to me a cert. petition, which I have made available for download below, that he recently filed in the NC Supreme Court assailing a sentence imposed by a judge who has repeatedly stated her view at sentencing that the commission of a crime by an African American defendant "disrespects " the civil rights movement and the memory of Dr. Martin Luther King. In the lawyer's words, "It is a world gone mad in criminal sentencing for a judge to consider as an aggravating factor for sentencing that a defendant is black, in supposed respect to the memory of Martin Luther King!!"
Elderly death row defendant loses in Ninth Circuit
As detailed in this article, the Ninth Circuit "late Sunday declined to halt the execution of Clarence Ray Allen, ruling that the death penalty would not be a cruel and unusual punishment for a man who turns 76 today and suffers from a host of medical ailments." The Ninth Circuits's ruling came in a long and thorough opinion, Allen v. Ornoski, No.06-99001 (9th Cir. Jan. 15, 2006) (available here).
This Ninth Circuit ruling comes two days after Gov. Arnold Schwarzenegger denied clemency to Allen (details here). Looks like California will have the honor of starting up the machinery of death for 2006, although this list of scheduled executions suggests the rest of January will be busy with executions.
- Too old and sick to die?
- The next high profile California capital case
- Schwarzenegger denies clemency to Allen
UPDATE: TalkLeft comments on Allen's imminent execution here.
Notable state court sentencing rulings
Kind readers have helped bring to my attention a number of interesting and important recent state court sentencing rulings:
- From Idaho, Idaho v. Helms, No. 2006-2 (Idaho Ct. App. Jan. 6, 2006) (available here), reverses a life sentence given to a defendant for throwing toilet water on a prison guard. Despite the defendant's sorrid criminal history, the majority in Helms finds the sentence "excessive under any reasonable view of the facts," and reduces it to an indeterminate life sentence with the 15 year fixed consecutive. DIsagreeing, one judge on the panel concludes his dissent with this line: "The only thing I find 'unreasonable' in Helms's sentence is the majority's modification of it to a fifteen-year fixed sentence."
- From Ohio, Hernandez v. Kelly, No. 2006-Ohio 126 (Ohio Jan. 13, 2006) (available here) grants a state habeas petition upon finding that the "trial court in Hernandez's case committed error because it did not notify him at his sentencing hearing that he would be subject to mandatory postrelease control and did not incorporate postrelease control into its sentencing entry."
- From Oregon, Miller v. Lampert, No. S51716 (Or. Jan. 12, 2006) (available here), reaffirms the Oregon Supreme Court's earlier (pre-Blakely and pre-Shriro) decision that Apprendi is not to be applied retroactively, and the Court now specifically considers and rejects the argument that the change in burden of proof made Apprendi a watershed rule.
January 15, 2006
Fascinating articles about Florida probation system
The St. Petersburg Times on Sunday ran an interesting set of article about the administration and reforms of the state's probation system. This lead article, entitled "Judgment calls," has this introduction, which highlights some of the article's themes:
Judges, prosecutors, probation officers and public defenders are faced with decisions that determine whether, and when probationers will have their freedom. The probationers, in turn, face daily choices that can determine their fates. In recent years, public officials have reacted to some especially shocking murders and sex crimes by adopting tough laws and regulations that limit the discretion of those on the front lines of the criminal justice system. In some cases, the get-tough policies have had their intended effect. In others, they have produced unintended consequences that have made the system less fair and society less safe.
The lead article is a very interesting read, and provides a lot of insight into the operation and importance of discretion on the back-end of sentencing systems. Also terrific are this companion article, "On the job with probation officers Rebecca Wolf and Joe Sabella," which documents the day-to-day work of probation officers in Florida, and this overview of the laws impacting sex offenders in Florida. (Hat tip to Howard Bashman for a link.)
Circuits grabbing the sentencing headlines
In my January preview, I did not think to highlight that federal circuit courts would be continuing to issue Booker and other notable sentencing opinions. Ever since the plain error split became entrenched, second half of last year did not bring that many exciting sentencing opinions from the federal circuits. But, as detailed below, 2006 has already brought a lot of noteworthy circuit sentencing action:
CIRCUITS FILLING OUT REASONABLENESS REVIEW
- First Circuit rejects reduced crack/powder ratio
- Major Fourth Circuit Booker decision on consideration of state/federal disparity
- Sixth Circuit publishes (opaque) approval of downward departure
- A Booker double-header from the Seventh Circuit
- Seventh Circuit expounds still further on reasonableness review
- Eighth Circuit explains why within-guideline sentences are appealable
- Ninth Circuit expounds on reasonableness review
- Eleventh Circuit affirms significant below-guideline sentence
- Eleventh Circuit confirms within-guideline sentences are reviewable post-Booker
OTHER IMPORTANT CIRCUIT SENTENCING RULINGS
- Ninth Circuit says aloha to Hawaii's sentencing system
- Notable Ninth Circuit decision finding plea invalid
- Tenth Circuit affirms 55-year mandatory minimum sentence in Angelos
- Eleventh Circuit predicts the demise of Almendarez-Torres (though it lives on for now)
Shouldn't Republican senators trust how Republican judges exercise sentencing discretion?
This graphic (which enlarges if you click on it), along with this New York Times article, highlights that Republican presidents have appointed more than 55% of sitting federal judges. The article is focused particularly on the idea that, with Judge Alito's likely confirmation, President Bush "appears on the verge of achieving what he had set as a primary goal of his presidency: a fundamental reshaping of the federal judiciary along more conservative lines."
Though the NYT article does not provide a complete breakdown of judges at all levels, it confirms my speculation that Republicans in Congress generally should be pleased by the make-up of the current federal judiciary that now wields new sentencing power in the wake of Booker. I first discussed the composition of the federal judicial in this post back in February. My main point then and now is that a distrust of judges often expressed by Republicans in Congress (such as Representatives James Sensenbrenner and Tom Feeney) seems especially curious given the make-up of the current federal judiciary: one would think that Republicans would generally trust the exercise of sentencing discretion by a judiciary comprised of judges appointed mostly by their own party.