August 5, 2006
Big efforts to halt Big Sky execution
The mania caused by the death penalty is now playing out in Montana as detailed in news articles here and here. As these articles explain, "civil liberty and church groups [are] trying to stop the Aug. 11 execution of triple-murderer David Dawson" by now attacking in federal court Montana's lethal injection protocol even though, long ago, "Dawson withdrew from all attempts to postpone or change his death sentence [and] has disavowed the current attempt."
I always find sad irony in the efforts of civil liberty groups to stop executions when the defendant is a volunteer given that these groups generally support the right to die for the terminally ill. If Dawson was an innocent person facing a short life of extreme physical pain, these groups would be trying to safeguard Dawson's right to end his life. But, because Dawson is a convicted murderer facing a long life of extreme physical confinement, these groups are trying to prevent Dawson from allowing the state to end his life.
Another sentencing raising federalism issues
As noted here, my involvement with the panel on Federalism & Sentencing at the upcoming NASC conference (conference details here and here) has me thinking a lot about the overlap and intersection of federal and state sentencing laws and policies. So, it was with much interest that I read this intriguing article reporting on a federal judge aggrieved (and influenced) by the lack of a state prosecution in a case involving the death of four people in a car crash:
Seven years after his tractor-trailer jumped a median on Interstate 78 in Berks County and caused a horrific crash that killed four members of a New York family, a Canadian man pleaded guilty in federal court Thursday to falsifying his daily log book. Immediately after Gulvinder Singh Sandhu entered his plea to 42 counts of making false statements to the U.S. Department of Transportation, Judge Eduardo C. Robreno revoked his bail, concerned that he was a flight risk and angry at how federal and Berks County prosecutors handled the case.
''This is unconscionable,'' Robreno said, questioning how the deaths of four people could result in a guilty plea that, under federal sentencing guidelines, could bring Sandhu a jail term of 12 to 18 months. A state conviction could have resulted in a 20-year sentence, he said. ''He killed four people,'' Robreno said. ''I'm just really perplexed with this case.''
August 4, 2006
Claude Allen gets probation for lying, cheating and stealing
As detailed in this AP report, former White House adviser, Claude Allen, today pled guilty in Maryland state court to one misdemeanor count of theft under $500. According to the report, Allen "was sentenced to two years of supervised probation and ordered to pay a $500 fine [and he] must also pay $850 in restitution to Target Corp. and perform 40 hours of community service."
I wonder if Justice Breyer and some members of Congress are troubled by this sentencing outcome, since it does not seems to reflect Allen's "real" conduct. According to the AP report, Allen actually "made thousands of dollars worth of fraudulent returns to Target and other stores last year." Justice Breyer's work in Booker suggests that he and Congress believe it is essential for a defendant's real conduct to drive sentencing outcomes.
Also, Allen is lucky he was not subject to the federal sentencing guidelines; he would likely have faced an enhancement for obstruction of justice for misleading White House officials. According to the AP report, Allen "told the White House about the arrest, but said it was the result of a mix-up with his credit cards. President Bush later said it would be 'deeply disappointing' if Allen had misled White House officials."
Finally, I suspect the House Judiciary Chair James Sensenbrenner and the Justice Department might be troubled by the lenient sentencing philosophy adopted by the sentencing judge. Here's the AP account:
Allen could have been sentenced to 18 months in prison on the theft charge. Judge Eric Johnson, however, gave Allen probation before judgment, which means his record will be expunged after his probation is over. The judge noted that Allen already has suffered public humiliation for his arrest, and said he appreciated that Allen accepted responsibility for the crimes without trying to make excuses. "You are a classic example ... of the fact that shame is not dead," Johnson said.
Geez, this sort of sympathetic approach to sentencing a white-collar offender seems to undercut the "tough on crime" movement of the last two decades. I wonder if main Justice is considering a follow-up federal prosecution of Allen (as in this case) to make sure the nation's interests in a "fair and tough" sentencing system are fully vindicated.
If you love federal sentencing statistics...
then the US Sentencing Commission has made your weekend. On the USSC website you can now find at this page "Federal Sentencing Statistics by State, District, and Circuit for the 2003 and 2004 and 2005 fiscal years." I am sure there are literally hundreds of interesting and important stories to be found in all this data, so everyone should start mining.
Third Circuit specifies issues for Grier en banc
As detailed in posts listed below, the Third Circuit is to consider post-Booker burden of proof issues en banc in US v. Grier. Yesterday, the Circuit entered an order with an expedited briefing timeline and three specific issues for the parties to focus upon. Here is the heart of the order:
Counsel shall address the following issues in their brief and be prepared to address the issues at argument:
1) Whether Due Process Clause creates a right to proof beyond a reasonable doubt as applied to certain facts relevant to enhancements under the advisory United States Sentencing Guidelines regime in light of United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000), and, if so, which facts;
2) Whether there is sufficient evidence of aggravated assault to support the sentence enhancement; and,
3) Whether this Court's holding in United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), that sentencing facts which "significantly increase the recommended sentence . . . must be proved by clear and convincing evidence," should be overturned.
Related posts about Grier:
Some related posts about burdens of proof at sentencing:
- Burdens of proof and a new due process of sentencing
- More about beyond a reasonable doubt at sentencing
- Further reflections on burdens of proof and acquitted conduct
- Requiring proof beyond a reasonable doubt in any legislative fix
- A post-Booker burden of proof primer
- In praise of Okai and its burden of proof insights
- Judge Kopf takes on Judge Bataillon on the burden of proof
- Ninth Circuit adds nuance to post-Booker burdens of proof
- Revised draft of Pondering Modern Sentencing Process
Motivated by article on motive and sentencing
I am motivated this coming weekend to get through my still-growing summer sentencing reading list. I am extra-motivated in part to make sure I soon get to a new addition from SSRN: this interesting piece by Carissa Byrne Hessick entitled "Motive's Role in Criminal Punishment." Here is the abstract:
Motive plays an important role in criminal law. It is necessary to prove liability for some offenses; it is a key component of several defenses; and it has been a traditional consideration at sentencing. Motive's role in criminal punishment has grown through the adoption of hate crime sentencing enhancements and the rise of substantive sentencing law. And motive has an important role in punishment theory, as it reinforces the centrality of shared moral judgments, which are indispensable to any system of criminal law. Yet despite motive's increasing importance in criminal law, its treatment is inconsistent and incomplete. This Article proposes an expanded role for motive in criminal punishment, in which a defendant's motive for committing any crime may result in a sentencing increase or decrease. The proposed sentencing system not only will result in a greater correlation between a defendant's punishment and her individual blameworthiness, but also will increase sentencing uniformity, because it clarifies the aggravating and mitigating nature of various motives ex ante.
Another interesting Big Love sentencing
In this post a few months ago, I noted an intriguingly long state sentence for bigamy. Now we can consider and compare this story reporting on an intriguingly short state sentence for sex with a teenager:
An Arizona judge has sentenced a polygamist to 45 days in county jail for having sex with a teenager he took as his third wife. The sentence disappointed authorities in Kingman, Arizona, who had hoped a harsher punishment for defendant Kelly Fischer would discourage others in the church from taking teenage wives.
Fischer was the first of seven members of the Fundamentalist Latter-day Saints (FLDS) to be tried for plural marriages to minors.... Members of the group, which broke with mainstream Mormons in the 1890s over polygamy, believe that only those in plural marriages can reach the highest level of heaven.
August 3, 2006
Strong commentary on Kandirakis
Steve Sady at the Ninth Circuit Blog has this strong discussion of Judge Bill Young's amazing post-Booker work in Kandirakis (discussed here). Steve says, "Judge Young's opinion is, at heart, a love letter to the American jury and the reasonable doubt standard." He also notes that his "favorite section, and the one that provides the best support for future briefing, is the review of the reasonable doubt standard at sentencing (pages 79 to 109)."
Dual prosecution, federalism and sentencing
Because I am moderating a panel on Federalism & Sentencing at next week's amazing NASC conference (conference details here and here), I have been thinking a lot this week about the overlap and intersection of federal and state sentencing laws and policies. So, it was with much interest that I read an order I received today in which Judge Nancy Gertner requests briefing on dual prosecution issues.
Judge Gertner's fascinating six-page order can be downloaded below, and here is its beginning and its closing queries for the parties to brief:
The office of the United States Attorney is prosecuting Defendant John Handy for possession of a firearm under 18 U.S.C. § 922(g)(1). It brings this prosecution fully cognizant of the fact that Massachusetts has already prosecuted Handy, based on the exact same facts, for illegal possession of the very same gun. In state court, Handy pled guilty to that offense and was sentenced to six months in jail, a sentence he served before the federal prosecution began.
The control of guns and the prevention of gun violence are of crucial importance. But so is a criminal justice system guided by principles of fairness, proportionality, and accountability. Equally important is a system that puts the considerable resources of the federal government where they will have the most impact -– namely, for the most violent and serious offenders in which the federal interest is truly substantial -– and defers to the state authorities where appropriate.
Two issues, among others, are raised by this prosecution. First, based on the decision of the United States Attorneys' office to prosecute Handy on federal charges, a decision that is ostensibly unreviewable in court, Handy, if convicted, faces a mandatory minimum sentence of fifteen years, in addition to the state court term he has already served. Secondly, the prior proceedings substantially complicate the current federal prosecution. For example, it is not at all clear whether, at the time Handy pled guilty to the state offense, he had been warned about the potential federal sentence he now faces. If the government offers Handy's prior state plea, is it admissible in the federal prosecution? And, if I were to conclude that the plea was uninformed (because he was not told about a potential fifteen-year federal sentence following his state conviction), and arguably inadmissible in the case before me, what impact, if any, would that have on Handy's state conviction?...
The issues [of dual prosecution] is well-worth reexamining, particularly at a time when a number of long-standing federal criminal rules and standards have been reconsidered. See, e.g., United States v. Booker, 543 U.S. 220 (2005); Crawford v. Washington, 541 U.S. 36 (2004); United States v. Lopez, 514 U.S. 549 (1995). In light of the highly unusual and extremely troubling circumstances of this case, I invite the parties to brief the following issues:
A. How does the Petite policy affect the case at bar? Are there issues raised here not already covered by the existing and well-established case law on the issue?
B. What effect, if any, does United States v. Lopez have on the legality of dual prosecution? That is, what are the implications of this dual prosecution for the federalism concerns that the Supreme Court described in Lopez?
C. What is the significance of the dual prosecution for the admissibility of defendant's state court plea?
A quirky tour around the blogosphere (with comments)
Lots of interesting reading around the blogosphere this afternoon, especially at places beyond my usual hangouts:
- Sasha Volokh here is asking for input on these questions: "(1) Do prison guards unions [lobby for tougher criminal laws] in places other than California? (2) Are prison systems themselves, perhaps Departments of Corrections, also active in lobbying for tougher criminal law or enforcement, either openly or behind the scenes?" The comments also make for interesting (though sometimes off-topic) reading.
- Law Dork here has captured a screen shot of my favorite opinion of the week. Again, the comments are also worth checking out.
- Spencer Overton posting here at MyDD has a fascinating post on felon disenfranchisement. Yet again, the comments are an interesting part of the story.
- Finally, Ian at 3L Epiphany reports here that he is back from the Ohio Bar netherworld, and reports here on four new judicial opinions citing blogs. Sadly, no comments on either post as of this writing.
Lethal injection litigation creates de facto moratorium in Ohio and...
I have not been blogging much lately about lethal injection litigation because, ironically, I am busy trying to finish an article about all the lethal injection litigation. But I must note that this report from the Ohio Death Penalty Information blog suggests that Ohio has now joined the ranks of states with de facto moratoriums on executions resulting from lethal injection litigation. According to this article in the Toledo Blade, the Ohio Supreme Court apparently refused to set execution dates for two death row defendants who have an on-going federal suit arguing that Ohio's lethal-injection protocol constitutes cruel and unusual punishment.
Though I am doing this off the top of my head, here is a list of states in which there now seems to de facto moratoriums resulting from all the lethal injection litigation:
This list includes quite a number of "major" death penalty states (though, of course, Texas each year usually executes 1/3 to 1/2 of all persons executed throughout the United States).
UPDATE: Karl rightly notes in the comments that arguably three more states merit a place on this list: Kentucky, Maryland and New Jersey. I left them off initially in part because it was arguably unlikely that these states would have had an execution in 2006 even without the lethal injection scrummages. Also, it occurs to me that perhaps the federal system ought also to be on this list because three federal executions scheduled for the Spring were postponed while Hill was being considered by the Supreme Court, and I have not heard any word to suggest that these executions are moving forward.
Some recent related posts:
- Old school execution
- A medical perspective on the lethal injection mess
- Should part of the machinery of death be dyslexic?
- Back to the lethal injection scrummages
- The intriguing next chapter in the lethal injection saga
- Oklahoma ruling on lethal injection's constitutionality
- On the other side of the Hill
- The lethal injection litigation rages on and on and...
Sixth Circuit thoughtfully discusses due process in affirming above-guideline sentence
The Sixth Circuit has a quite thoughtful opinion discussing due process in the retroactive application of the Booker remedy in the course of affirming an above-guideline sentence in US v. Barton, No. 05-1229 (6th Cir. Aug. 3, 2006) (available here). Adding to the nuance of Barton is a refined concurrence from Judge Cole suggesting that reasonableness review can and should keep some constitutional concerns at bay.
August 2, 2006
Great new FSR issue for SCOTUS followers
I am pleased to report that another issue of the Federal Sentencing Reporter is now available on line. This issue (Volume 18, No. 4) is titled "Sentencing at the Supreme Court" and it explores a ranges of sentencing issues and cases before the Supreme Court last Term and this coming Term.
The opening commentary to this FSR issue, authored by my co-editor Nora Demleitner, is entitled "Where to Go From Here? The Roberts Court at the Crossroads of Sentencing." Our gracious publisher, University of California Press, has made Nora's piece available free here.
- Nora V. Demleitner, Where to Go From Here? The Roberts Court at the Crossroads of Sentencing
- Michael H. Marcus, Post-Booker Sentencing Issues for a Post-Booker Court
- Michael S. Pardo, Confrontation Clause Implications of Constitutional Sentencing Options
- Youngjae Lee, Judicial Regulation of Excessive Punishments through the Eighth Amendment
- David C. Gray, A Prayer for Constitutional Comparativism in Eighth Amendment Cases
- Ernest A. Young & Carina Cuellar, Supranational Courts, Presidential Power, and the Medellin Case
- Laura I. Appleman, Rediscovering Retribution: Understanding Punishment Theory After Blakely
- Jon M. Sands, Roberts' Sentencing Rules of Order
- Jason Hernandez, Presumptions of Reasonableness for Guideline Sentences After Booker
- Amy Baron-Evans & Anne E. Blanchard, The Occasion to Overrule Harris
- Anne E. Blanchard & Sarah S. Gannett, Fifth Amendment Protections at Sentencing: The Next Logical Step after Booker
- Michael M. O'Hear, Cunningham: Why Federal Practitioners and Policy Makers Should Pay Attention
- Steven G. Sanders, A Closer Look at Washington v. Recuenco
- Juliet P. Stumpf, Penalizing Immigrants
Other recent FSR issues:
- FSR Issue 18.3: Taking Stock a Year after Booker
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 18.1: State of Blakely in the States
- FSR Issue 17.5: Is a Booker Fix Needed?
- FSR Issue 17.4: The Booker Aftershock
Major split Second Circuit ruling on reasonableness
The Second Circuit has issued another notable opinion on reasonableness today in US v. Jones, No. 05-2289 (2d Cir. Aug. 2, 2006) (majority here, dissent here), which approves as reasonable a below-guideline sentence over the government's objections. But, the decision, authored by Judge Jon Newman, engendered a strong dissent from Judge Walker.
Because the majority opinion in Jones is written by one of my old bosses, I am inclined to appreciate every line. For example, in light of this ugly pattern of reasonableness outcomes in the circuits, I especially like this passage:
If we are to be deferential when the Government persuades a district judge to render a non-Guidelines sentence somewhat above the Guidelines range, we must be similarly deferential when a defendant persuades a district judge to render a non-Guidelines sentence somewhat below the Guidelines range. Obviously, the discretion that Booker accords sentencing judges to impose non-Guidelines sentences cannot be an escalator that only goes up.
But Judge Walker gets in his own shots in his dissent, which closes with this expression of concern about sentencing disparities in the wake of Booker:
[Through the panel's opinion,] we invite a return to the days of wide-open discretion at the expense of both reduced sentencing disparity and fairness. This is an unhealthy trend because the government and defendants alike will come to view sentencing as an arbitrary exercise more informed by which district judge is assigned than by the factors outlined in § 3553(a), and the public, including its elected representatives, will find evidence to support the perception that, in sentencing, courts are more home to judicial wilfulness than the law.
Big day for Ohio death row defendants
I am in the center of the death penalty universe today: as detailed here and here at How Appealing, both the Ohio Supreme Court and the Sixth Circuit issued major death penalty rulings in favor of Ohio capital defendants. These interesting legal developments must make the Ohio Death Penalty Information blog the legal blog of the day.
USSC releases notice of proposed priorities
The dog days of August in the federal sentencing world typically bring a Federal Register "Notice of Proposed Priorities and Request for Public Comment" from the US Sentencing Commission. And, without any delay, the USSC has now issued this 5-page Federal Register Notice. Here is how the USSC describes its latest work on its website:
As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, and in accordance with Rule 5.2 of its Rules of Practice and Procedure, the Commission is seeking comment on possible priority policy issues for the amendment cycle ending May 1, 2007. Public comment should be received on or before September 1, 2006.
Some related posts:
The federal death penalty in NY and elsewhere
The New York Law Journal has made available this interesting article exploring federal death penalty prosecutions in New York. Here is a snippet:
More federal death penalty cases have been authorized in New York than in any other state, except Virginia, since capital punishment was reinstated for federal cases in 1988. Thirty-seven federal capital cases have been authorized in New York, compared with 50 in Virginia and 385 nationwide, according to data prepared by the Federal Death Penalty Resource Counsel Project, which was current as of July 14, 2006....
The data collected by the death penalty project also found a higher proportion of minority defendants in federal capital prosecutions in New York than nationwide: 94.6 percent in New York (35 minority defendants out of 37) as opposed to 73 percent nationwide (281 out of 385). Mr. Neufeld, who was formerly the head of the Legal Aid Society's criminal defense division, said that, while the difference between the New York and national figures was a product of a policy choice to target urban gang crime, it nonetheless reflected "a distressing racial disparity."
August 1, 2006
Another extraordinary magnum opus from Judge Young
As detailed in this post, in June 2004, about a week before the Supreme Court decided Blakely, District Judge William Young of the District of Massachusetts issued this remarkable 174-page opinion in US v. Green concluding that the logic of Apprendi and Ring renders the federal sentencing guidelines unconstitutional. Of course, the Supreme Court vindicated Judge Young's analysis through its subsequent opinions in Blakely and Booker.
Judge Young today has issued a post-Booker opinion (running only 141 pages) in US v. Kandirakis, No. 04-10372 (D. Mass. Aug. 1, 2006) (available here) that is comparable in scope and depth to his pre-Blakely effort in Green. Because Judge Young does me the honor of quoting a remark of mine at the outset and also cites this blog within the opinion, I cannot readily provide an unbiased view of the mertis of Kandirakis. But I can readily quote the opinion's powerful first paragraph:
For seventeen years federal courts had been sentencing offenders unconstitutionally. Think about that. The human cost is incalculable -- thousands of Americans languish in prison under sentences that today are unconstitutional. The institutional costs are equally enormous -- for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core values of an independent judiciary because they have been brought up in a sentencing system that strips the words "burden of proof", "evidence", and "facts" of genuine meaning; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history.
Eleventh Circuit deepens Rule 32(h) circuit split
Jumping into a circuit split that the Supreme Court may eventually have to resolve, the Eleventh Circuit today in US v. Irizzary, No. 05-11718 (11th Cir. Aug. 1, 2006) (available here) decided that "the district court was not required to give Defendant advance notice before imposing a sentence above the advisory guidelines range based on the court's determination that sentences within the advisory guidelines range did not adequately address section 3553(a) sentencing factors."
By my rough count, four circuits have now formally held that Rule 32(h) does not apply to Booker variances (the 3d, 7th, 8th and 11th), and three have held that Rule 32(h) does apply to Booker variances (the 2d, 4th, and 9th). I had previously thought that this split would be resolved by the group that drafts the Federal Rules of Criminal Procedure, because I had heard a post-Booker amendment to Rule 32(h) was in the works. But, rumor has it that such an amendment may not be forthcoming, and thus the Supreme Court might have to resolve this interesting and important notice issue.
New Harvard CR-CL issue on prison litigation
Today I received an interesting e-mail promoting this interesting new issue of the Harvard Civil Rights-Civil Liberties Law Review. Here are the highlights:
[T]he Harvard Civil Rights-Civil Liberties Law Review is publishing its first ever article written by a prison inmate, Thomas C. O'Bryant, who is a jailhouse lawyer serving two consecutive life sentences in prison without hope of release. Having taught himself the law from prison, O'Bryant has represented himself and other inmates in numerous criminal and civil lawsuits in state and federal courts over the past ten years.
In his law review article [available here], O'Bryant describes the difficult process that he and other indigent inmates must endure to challenge their state convictions. O'Bryant argues that the combination of federal laws and stringent prison conditions make it impossible to challenges wrongful convictions effectively. O'Bryant describes his own case, in which his lawyer assured him that if he pled guilty, he would be eligible for release after ten years, even though he discovered from prison that he would never be eligible for release.
O'Bryant's article is the centerpiece of a Symposium of articles in the Harvard Civil Rights-Civil Liberties Law Review that examines pro se litigation ten years after AEDPA. Other authors of articles in the Symposium include Bryan Stevenson, the director of the Equal Justice Initiative of Alabama and a Professor at NYU Law School, Jamie Fellner, the director of U.S. Programs at Human Rights Watch, and Jessica Feierman, at attorney at the Juvenile Law Center in Philadelphia, PA. Coming on the heels of the 10th Anniversary of the passage of Antiterrorism and Effective Death Penalty Act of 1996, all of the articles in the Symposium challenge legislators, scholars, advocates, and everyone interested in issues of criminal justice in America to rethink its treatment of "final" criminal convictions.