Sentencing Law and Policy

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.

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!!"

Download sentencing_cert_pet_ncsc.doc

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.

Related posts:

• 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.

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.