August 19, 2006
Is capital punishment for drunk driving morally required?
Earlier this week, as reported in the Washington Post, the New York Times, USA Today and elsewhere, "state and federal officials announced a campaign to target drunk drivers through stepped-up enforcement and an $11 million advertising campaign." The newspaper articles confirmed my concerns here that we should be worrying a lot more about sentencing for drunk drivers than, say, sentencing for sex offenders. Consider these data and quotes:
Last year, 16,885 people died nationwide as a result of alcohol-related accidents.
"Drunk driving is one of America's deadliest crimes," Acting Transportation Secretary Maria Cino said.
"This is by no means a victimless crime," said Deputy U.S. Attorney General Paul J. McNulty, noting that drunk drivers are one of the leading causes of on-duty deaths of law enforcement officers.
"Drunk driving is an epidemic and is a scourge of this country," said Jim Champagne, a Louisiana State Police trooper and chairman of the Governors' Highway Safety Association. "The cost to the country in lives, in jobs and in economic value is unbelievable."
As first noted here, Professors Cass Sunstein and Adrian Vermeule have provocatively argued, in an article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs," that governments may have an obligation to use the death penalty if it can deter killings and save innocent lives. I argued here that their logic suggests the death penalty for drunk drivers may be morally obligatory because the failure to adequately deter drunk driving surely costs many innocent lives. The new government campaign and the extraordinary number of alcohol-related driving fatalities have me returning to these ideas.
If we really believe that the death penalty is justified by its ability to save lives through its deterrent impact, shouldn't we seriously consider using the ultimate penalty against drunk drivers? Surely many lives likely could be saved as a result of only a few high-profile executions.
At the very least, shouldn't Congress be far more concerned with passing tough mandatory minimum sentencing laws for drunk driving than for other crimes? Other than cynical explanations based in class and race, I have a hard time understanding why we so readily turn to super-tough criminal enforcement to deal with non-violent drug crimes, but then we go harmfully soft on drunk driving.
Related posts on drunk driving sentencing:
- Why do we worry so much more about sex offenders than drunk drivers?
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
Updated list of law review articles citing blogs
Ian at 3L Epiphany has here updated his extraordinary compilation of law review articles citing blogs. According to Ian, there are now "489 article citations of legal blogs in this collection, with 75 legal blogs being cited."
August 18, 2006
Another capital twist on confrontation at sentencing
Earlier this week, as detailed here, the Arizona Supreme Court decided that Crawford and the Confrontation Clause are inapplicable at the penalty phase of a capital case. Thanks to Crime & Consequences here, I now see District Judge David O. Carter has held in US v. Mills, No. CR02-938 (C.D. Cal. Aug. 17, 2006) (available here), that the Confrontation Clause applies to the entire penalty phase in a federal capital case. Here is how the opinion begins:
Before the Court are two issues concerning the procedures of the death penalty phase of the Aryan Brotherhood trial: (1) whether the Confrontation Clause of the Sixth Amendment applies during the penalty phase of a capital trial; and (2) whether proof of unadjudicated crimes, when offered as evidence to prove the alleged non-statutory aggravating factor of future dangerousness, should be subject to an independent burden of proof. After considering extensive written and oral argument submitted by the parties, for the reasons set forth below, the Court hereby makes final its tentative rulings that: (1) Testimonial hearsay offered to prove statutory and non-statutory aggravating factors in the death penalty selection phase is barred by the Confrontation Clause; and (2) unadjudicated criminal acts offered to prove the non-statutory aggravating factor of future dangerousness are not subject to an independent burden of proof.
So you want to start a sentencing commission?
The new blog called Corrections Sentencing is continuing to do amazingly interesting stuff, and it has an recently begun an interesting series of posts about starting a sentencing commission. Here are the installments so far:
- So You Want to Start a Sentencing Commission? Part I
- So You Want to Start a Sentencing Commission? Part II
- So You Want to Start a Sentencing Commission? Part III
Executions making a comeback
Though litigation over the constitutionality of lethal injection continues to rage, the process of executions continue to march on in some states. As detailed in stories here and here, both Texas and North Carolina completed lethal injection executions in the last 24 hours.
In addition, as this story details, Florida "Gov. Jeb Bush reinstated a death warrant Thursday for a condemned killer, despite a ruling this year from the U.S. Supreme Court that the inmate could challenge the state's method of lethal injection. Prison officials scheduled his execution for next month." But, unsurprisingly, the "attorney for convicted killer Clarence Hill said he would ask a federal appellate court for a stay on the execution so the Supreme Court decision can be carried out."
August 17, 2006
President Bush issues more minor pardons
As detailed in this AP story, President Bush earlier this week has granted another set of executive pardons, all to folks who committed relatively minor offenses. Some details and background:
President Bush pardoned 17 minor criminals yesterday. Most had not served time in prison. The longest sentence any of the 17 had received was five years.
Bush has issued 99 pardons and sentence commutations during five years and seven months in office, mainly to clear the names of people who committed minor offenses and served their sentences long ago. He remains the stingiest of postwar presidents in this regard.
For lot of coverage of Bush's pardon practices, check out the links below:
- Troubling patterns in Bush's pardons
- A thorough review of GWB's pardon work
- Thoughtful clemency commentary
- Pardon and clemency archive
Extraordinary paper on post-Booker sentencing
Amy Baron-Evans, the National Sentencing Resource Counsel to the Federal Public and Community Defenders, has produced an extraordinary memorandum entitled "The Continuing Struggle for Fair, Effective and Constitutional Sentencing After United States v. Booker." This document, which can be downloaded below, is filled with 70+ pages of insights worth quoting. Here is just one of many passages worth highlighting:
Defense counsel must help to ensure that judges retain and exercise their sentencing power by providing arguments to support reasoned decisions that will be upheld on appeal (or not appealed at all), that Congress can respect, and that the public can understand. There are powerful arguments to be preserved below and raised in petitions for certiorari that post-Booker sentencing violates the sentencing law under basic principles of statutory construction, the Sixth Amendment right to jury trial, the Fifth Amendment right to proof beyond a reasonable doubt, and the Sixth Amendment right to confront and cross-examine adverse witnesses. But, as we have seen, legal arguments are not enough.
Even in circuits that have rejected presumptive guidelines, the guidelines provide a comfortable numerical anchor, and many judges have little knowledge of the guidelines' history and development other than what they are being told by advocates of the status quo.... Thus, regardless of what circuit you are in or what stage of the litigation, it is necessary to demonstrate as a factual matter that the guidelines do not comply with 18 U.S.C. § 3553(a), and that a lower sentence does a far superior job.
More meta-blogging and nice reviews
Over at the WSJ blog, Peter Lattman provides a nice plug here for my article "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs" (available here) that I presented at last April's Harvard Law School symposium, "Bloggership: How Blogs are Transforming Legal Scholarship Conference." And Bill Henderson at the ELS Blog follows up with this kind post.
Some related posts on law blogging and scholarship:
Intriguing Fifth Circuit reasonableness ruling
The Fifth Circuit has issued a notable ruling on post-Booker sentencing and reasonableness review in US v. Tzep-Mejia, No. 05-40386 (5th Cir. Aug. 16, 2006) (available here). Though Tzep-Mejia has an off-topic and gratuitous endorsement of circuit rulings rejecting crack variances, the actual holding is an interesting endorsement of how to sentence after Booker without properly calculating an applicable guideline range. Here is a snippet:
Tzep's sentence did not "result" from an incorrect application of the Guidelines. Based on facts presented in the PSIR, the district court carefully considered the two possible Guideline ranges that could result depending on how it ruled on the defendant's objection to the crime of violence enhancement. The court then rejected both options and elected to exercise its discretion to impose a non-Guideline sentence.
Both the Second and Eighth Circuits have recognized that the approach followed by the district court in this case is an appropriate one. See United States v. Haack, 403 F.3d 997 (8th Cir. 2005); United States v.Crosby, 397 F.3d 103 (2d. Cir. 2005). In Haack, the court stated: "[t]here may be situations where sentencing factors may be so complex, or other § 3553(a) factors may so predominate, that the determination of a precise sentencing range may not be necessary or practical. However, in those cases the court should be careful to identify potential applicable ranges, the reason why a particular range is not being selected, and other § 3553(a) factors that predominate." Haack, 403 F.3d at 1003 (citing Crosby).
Crack reasonableness review should be as easy as 1, 2, 3
The Second Circuit in Castillo needed 43 pages to declare an experienced judge's sentencing decision unreasonable for failing to follow the harsh crack guidelines (basic here). In prior posts (some listed below), I have explained the flaws I see in how circuits have approached this issue. Here I will reiterate why, in my view, three simple propositions support the reasonableness of thoughtful district court decisions to follow a 20:1 crack/powder ratio.
1. Congress has ordered sentencing judges in 18 U.S.C. § 3553(a) to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection" and also to "consider" guideline ranges.
2. US Sentencing Commission has emphatically stated that (a) the guidelines' 100:1 ratio overstates the seriousness of crack offenses, and (b) the crack guidelines undermine the goals set forth in 3553(a). See, e.g., Chapter 8 of the US Sentencing Commission's 2002 Report: "After carefully considering all of the information currently available ... the Commission firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act."
3. If a sentencing judge, after considering the guideline range and the USSC's analysis, believes the crack guideline sentence is "greater than necessary" in a particular case, that judge can — and arguably must — impose a sentence outside the guidelines. In such a case, the sentencing judge should adopt a sound method for deciding what non-guideline sentence to impose; drawing guidance from the USSC's recommended 20:1 crack/powder ratio reasonably respects (a) Congress's view that crack offenses are worse than powder offenses, and (b) the USSC's expertise and wisdom.
Some related posts on crack sentencing after Booker:
- Crack sentencing and the anti-parsimony pandemic
- Seventh Circuit issues another cracked opinion on the crack ratio
- What is the Sentencing Commission fiddling while the crack guidelines burn?
August 16, 2006
Top-side brief in Grier proof standard Third Circuit en banc appeal
Kind readers have sent me the recently filed Appellant's Brief in US v. Grier, the case in which the Third Circuit will be considering appropriate burdens of proof in post-Booker federal sentencing. The brief can be accessed below, and here is its summary of the major constitutional arguments:
This Court should vacate Grier's sentence and remand for resentencing because the District Court erred in enhancing Grier's sentence based upon its finding, by a preponderance of the evidence, that he committed an aggravated assault, for several reasons.
First, the Due Process Clause requires the District Court to apply the reasonable doubt standard in finding enhancement facts when the sentencing enhancement constitutes a new and separate offense. Second, The Doctrine of Constitutional Avoidance requires use of the reasonable doubt standard to avoid construing the federal sentencing statutes as unconstitutional....
Related posts on Grier and burdens of proof:
- Burdens of proof and a new due process of sentencing
- More about beyond a reasonable doubt at sentencing
- Revised draft of Pondering Modern Sentencing Process
Second Circuit joins group mandating that crack guidelines are followed
Based on a positive report from oral argument, I was hopeful that the Second Circuit would not call per se unreasonable a district court's decision not to follow the harsh crack guidelines. But, sadly, the Second Circuit today essentially mandated application of the crack guidelines and thus followed the ugly circuit herd on this issue (which started with the First Circuit's Pho ruling and was followed by the Fourth, Seventh and Eleventh Circuits). The ruling in US v. Castillo, No. 05-3452 (2d Cir. Aug. 16, 2006) (available here), appears thoughtful, but still is very wrong and unjust in my view. Here is the start of an opinion I will discuss more fully later:
This appeal calls upon us to decide whether a district court's sentence can be upheld as reasonable when it is based solely on the district court's policy disagreement with how the United States Sentencing Guidelines treat crack cocaine offenses as compared to powder cocaine offenses, notwithstanding Congress's repeated rejection of proposals to alter that treatment.
The federal statute governing drug offenses calls for mandatory minimum sentences to be imposed according to drug quantity as measured by weight, where the quantity needed to trigger each minimum varies by type of drug. Following and building on this structure, the Sentencing Guidelines provide sentencing ranges for offenses involving powder cocaine and crack cocaine according to a ratio of 100 to 1, such that a crime that involves a certain quantity of crack cocaine falls within the same sentencing range as a crime that involves 100 times that amount of powder cocaine. In this case, without making any adjustment for the particularities of the individual defendant or his specific offenses, the United States District Court for the Southern District of New York (Sweet, J.) found the 100:1 ratio untenable and instead simply applied the 20:1 ratio that the Sentencing Commission currently advocates but that Congress has repeatedly refused to adopt. The government filed the instant appeal, and we are now compelled to reverse. We hold that district courts do not have the authority to reject unilaterally the 100:1 ratio on policy grounds, and we remand for further proceedings.
Taking stock of post-Booker circuit splits
In this recent post, where I pondered when and how the Supreme Court will take up a case addressing post-Booker reasonableness review, I mentioned that the circuits are split on a various aspects of federal sentencing after Booker. Here I want to briefly chronicle major splits and ask for reader help in identifying any I have overlooked.
1. The presumption of reasonableness: The circuits are nearly evenly split on whether a within-guideline sentence should be afforded a presumption of reasonableness on appeal. But, since nearly every within-guideline sentence gets affirmed with or without the presumption, this split seems more a matter of style than substance.
2. The persistence of Rule 32(h): The circuits are nearly evenly split on whether Rule 32(h) requires a district court to give advance notice before varying from the advisory guidelines range. Though this is significant split, I suspect most district courts give the parties some opportunity to address key 3553(a) factors before sentencing, and thus I doubt this split is very consequential in most cases.
3. The role of "traditional" departures: The Seventh Circuit has pioneered the notion that "traditional" departures are obsolete after Booker, and the Ninth Circuit has recently echoed this sentiment. But most other circuits (and the Sentencing Commission) have expressly called for district courts to conduct a departure analysis before considering 3553(a) factors. Though this might seem like a matter of semantics, the role of departures can ripple through many aspects of the post-Booker world (as discussed here and here); I think this is an important issue that someone needs to resolve in order to have a more uniform federal sentencing system.
4. The applicable version of the guidelines: The Seventh Circuit's recent Demaree ruling (discussed here and here) held that, after Booker, district courts may (and should?) apply the most recent version of the now-advisory guidelines even when they recommend a longer sentence than the guidelines applicable at the time of the defendant's crime. But other courts and litigants have been operating under the pre-Booker rules for using the guidelines applicable at the time of the crime. Though an intricate ex post facto matter, this issue could have more impact on post-Booker sentencing than any other issue listed here (especially in white-collar cases and other cases in which the guidelines have changed a lot in recent years).
There have been, of course, lots of post-Booker splits in the district courts about crack sentencing, fast-track policies, acquitted conduct, burdens of proof and other large and small issues. But some of these issues have been harmonized by circuit rulings, and none have to date produce a tangible circuit split. There may be, however, other important splits I have not mentioned, and readers are encouraged to supplement my list.
The inconsistent pace of executions
This article from North Carolina explores reasons why capital defendants are not typically executed in the same order they are sent to death row. Here are some highlights:
Eighty-seven other inmates have been on death row in North Carolina longer than Samuel Flippen. But Flippen is the next scheduled to die.... Many variables can affect the length of a prisoner's stay on death row, including the zeal of prosecutors after the sentencing or even the level of community outrage at the crime....
The scheduling of post-conviction proceedings and the issues raised in post-conviction appeals can influence how fast a case moves through the system, which in turn affects when an execution date is scheduled.... The deputy attorney general handling the post-conviction proceedings can help dictate case movement. An aggressive attorney handling a capital case can be the difference between it staying active in the courts or becoming dormant, legal officials said.
Charles Harp II, one of Flippen's former attorneys, said that prosecutors in post-conviction sometimes push for cases that they feel deserve to be heard quickly.... Gerda Stein, a staff member at the Center for Death Penalty Litigation in Durham, agreed with Harp that prosecutors can control whether a case "falls asleep" or whether it gets moved through the system. "Sometimes prosecutors really want to push a certain case," Stein said. "It can be a case they feel strongly about, the community felt strongly about or family members."... "If the victim's family calls, that can wake up the case," Stein said.
A pregnant post-Booker resentencing
Here is an interesting story from Pennsylvania about an upcoming federal resentencing:
In February 2004, Dawn Penzera told her lawyer, a U.S. probation officer and a federal judge that she was pregnant. But when she arrived at a federal prison in West Virginia to begin serving her 51-month sentence on identity theft charges in July of that year, she was decidedly not pregnant.
Now, two years later, Ms. Penzera is being resentenced because of a Supreme Court ruling that made sentencing guidelines advisory only. As part of the new sentencing, the U.S. attorney's office is asking that Ms. Penzera get an even longer prison term, claiming she purposely lied about the pregnancy to get less time. "I believe the conduct engaged in is reprehensible," said Assistant U.S. Attorney Michael L. Ivory. "It's continued to this day."
Ms. Penzera took the stand on her own behalf yesterday at a hearing on the matter, and told U.S. District Judge Terrence F. McVerry that at the time, she believed she was pregnant. She told him that she missed her menstrual cycle, had gained about nine pounds and was feeling sick -- symptoms similar to those she experienced when she had her oldest son nine years before that. Ms. Penzera took five home pregnancy tests to confirm her suspicions, she said, but she never went to a doctor because she didn't have health insurance....
Defense Attorney Sally Frick asserted that there is no evidence to prove she wasn't pregnant. "I don't think you can find on this record she deliberately misstated these things to the court," Ms. Frick said. Additionally, she argued to the judge, there was no reason for Ms. Penzera to lie about being pregnant because she knew she was going to prison regardless....
For the judge to give an increased prison term, he must find that Ms. Penzera told a "falsehood," and that it impacted his sentencing decision.... If Judge McVerry agrees to the sentencing enhancement, Ms. Penzera would be subject to a recommended sentencing range of 63 to 78 months in prison. When Judge McVerry originally sentenced her, the range was 51 to 63 months. The judge has taken the matter under consideration and will hold a formal sentencing at an undetermined date.
In short, the government is arguing that Ms. Penzera deserves an extra year in prison for the "crime" of lying about being pregnant. And her guilt of this "crime," which the defendant contests, will be resolved by the sentencing judge. Ah, the Framers would be so proud.
August 15, 2006
A capital twist on applying Crawford at sentencing
I believe just about every federal circuit court has held that Crawford and the Confrontation Clause are inapplicable at sentencing. In Arizona v. McGill, No. CR-04-0405-AP (Ariz. Aug. 14, 2006) (available here), the Arizona Supreme Court examines this issue in a capital context. Here is what the majority holds:
[T]he Confrontation Clause does not apply to rebuttal testimony at a sentencing hearing because (1) the penalty phase is not a criminal prosecution, (2) historical practices support the use of out-of-court statements in sentencing, and (3) the sentencing body requires complete information to make its determination.
In a thoughtful and scholarly partial dissent, Justice Hurwitz articulates a different view:
I respectfully part company with the majority, however, with respect to its rejection of McGill's Confrontation Clause claims. I believe that the Confrontation Clause of the Sixth Amendment applies to the penalty phase of a capital sentencing proceeding and that testimonial hearsay cannot be used to impose a death sentence.
If either capital punishment or the Confrontation Clause gets you excited, you should find time to read McGill.
Ninth Circuit uphold notable application three-strikes law
Anyone who worries too much about the Ninth Circuit being too liberal will be comforted by its ruling today in Taylor v. Lewis, No. 04-17517 (9th Cir. Aug. 15, 2006) (available here). In Taylor, the court rejects a California inmate's Eighth Amendment challenge to his 25-to-life three strikes sentence. Here is the court's opening pragraph, which highlights the nuanced way this issues was presented and resolved:
In this habeas case we review whether it was an unreasonable application of federal constitutional law for a California state court to decide that a "three strikes" sentence of 25 years to life for possessing 0.036 grams of cocaine did not violate the Eighth Amendment.
Jonathan Soglin has a lot more details here.
Still more reasonableness fun from the Sixth Circuit
The Sixth Circuit, as noted here, was providing daily drama on Booker plain error last year. Now we have move on to reasonableness review, and the circuit continues its latest soap opera with a split opinion today in US v. Cage, No. 05-5241 (6th Cir. Aug 15, 2006) (available here).
The majority opinion in Cage affirms a within-guideline sentence over the defendant's appeal, which claimed err in the district court's assertion that there ought to be a presumption in favor of the guidelines even after Booker. Along the way, the Cage opinion explains and defends the Sixth Circuit's prior decision to "credit the Guidelines with a rebuttable presumption of reasonableness,"
Judge Clay, in an equally thoughtful opinion, dissents with this initial explanation of his concerns:
The majority's holding in this case directly contravenes Booker, 18 U.S.C. §3 553(a), and this Court's prior holdings that district courts are to consider all the § 3553(a) factors in arriving at a sentence sufficient to, but not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a).
Just some of the recent engaging reasonableness work by the Sixth Circuit:
UPDATE: I was so drawn to the split opinion in Cage, I missed the Sixth Circuit additional work on reasonableness today in US v. Davis, No. 05-6259 (6th Cir. Aug 15, 2006) (available here). Here is the introduction to the Sixth Circuit's thoughtful work in Davis:
Lonnie Davis appeals his sentence for escaping from a community corrections center in violation of 18 U.S.C. § 751(a). Davis asserts that the district court erred by applying a reasonableness standard in determining his sentence rather than "impos[ing] a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [18 U.S.C. § 3553(a)(2)]" as prescribed by 18 U.S.C. § 3553(a). Davis also argues that in imposing his thirty-seven-month sentence, the lowest within the recommended U.S. Sentencing Guidelines range, the district court did not adequately consider "the nature and circumstances of the offense" — namely, its nonviolent character — under § 3553(a)(1). Because no specific magic words are necessary to render a sentence reasonable, and the district court imposed a reasonable sentence after thorough consideration of the § 3553(a) factors as required following United States v. Booker, 543 U.S. 220 (2005), we AFFIRM Davis's sentence.
New Zealand's new sentencing reforms
As detailed below, I have sporadically reported on major sentencing reform news from other parts of the world. Today, the news comes from New Zealand, where this article reports that "[t]ougher parole laws, firm sentencing guidelines for judges and more scope for community sentences and home detention feature among big changes to the criminal justice system announced today." As the article explains:
Overall, the suite of changes is designed to arrest the rising prison population and curb re-offending by giving judges dealing with less serious offenders more options for home detention and community-based punishment and prisons more money and tools to rehabilitate inmates.... At the moment the prison muster is predicted to grow from 7700 to nearly 9000 by 2011. It was 4500 a decade ago.
In addition, "a new Sentencing Council with public input and Parliamentary oversight will set firm guidelines to ensure judges hand down consistent sentences.... The new Sentencing Council, made up of a mix of judicial and non-judicial members, is expected to take two years to be set up and establish guidelines."
Related posts about guideline developments around the world:
- An international perspective on sentencing disparity
- Israeli proposal for sentencing guidelines
- What Iran and Israel have in common
Federal sentencing around the blogosphere
The federal defender blogs, as well as the White Collar Crime Prof Blog, have a lot of recent posts about notable recent federal sentencing developments:
- The Sixth Circuit Blog discusses quite critically here the circuit's reasonableness work in Davis (basics here).
- The Ninth Circuit Blog discusses in this post the circuit's new take on the place of departures in Mohamed (basics here).
- The WCCP Blog has insightful commentary here and here on a few high-profile white-collar sentencings. Notably, in both cases discussed the defendant received below guideline sentences.