September 1, 2006
Long weekend SSRN reading
Here are a lot of interesting-looking new papers I spotted on SSRN for reading if your favorite college football games become blowouts:
- Juvenile Execution, Terrorist Extradition, and Supreme Court Discretion to Consider International Death Penalty Jurisprudence by Elizabeth Burleson
- Cautious Liberalism by Joseph Edward Kennedy
- Disposing of Children: The Eighth Amendment and Juvenile Life Without Parole After Roper by Hillary J Massey
- Two Types of Consequentialism, Two Types of Formalism: Reconsidering Bordenkircher in Light of Apprendi by Michael M. O'Hear
- Furman Fundamentals by Corinna Lain
- Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical by Paul H. Robinson
A case-study in capital politics
As detailed here, earlier this week South Dakota Governor Mike Rounds halted the state's first planned execution in 59 years because of concerns about the state's lethal injection protocol. Now comes, as detailed in this article, the political aftermath:
Calling Gov. Mike Rounds' 11th-hour stay of execution for death-row inmate Elijah Page this week a "blunder," South Dakota Democratic Party chairwoman Judy Olson Duhamel called for a bipartisan investigation into the matter. Citing "outrage" among rank-and-file South Dakotans, Olson Duhamel sent a letter Thursday to Rounds, Attorney General Larry Long and legislative leaders from both parties. "The public has the right to know in detail the series of events that lead to this decision," Olson Duhamel wrote in the letter. "In order to clear the public perception that the stay was politically motivated and ensure that this type of blunder does not occur in the future, we urge you to assemble the commission as soon as possible."
In addition, as detailed in this article, "three state lawmakers who represent the district where Elijah Page and two others murdered Chester Allan Poage plan to introduce a bill to amend the state law that caused Gov. Mike Rounds to halt Page’s execution hours before it was scheduled to take place."
Terrific accounting of state-by-state sentencing structures
With thanks to Michael Heise and ELS Blog for this tip, I have discovered that this is an interesting sentencing part to the Bureau of Justice Statistics' massive account of information on state court systems in its recently-released report State Court Organization, 2004. Starting at page 239 of a 300+ page document is a part called "The Sentencing Context," which has five amazing tables describing, state-by-state, facets of the sentencing process.
What sentence should former Illinois Gov Ryan receive?
This article discusses some sentencing arguments in play in the upcoming sentencing of former Illinois Governor George Ryan following his conviction earlier this year on various federal corruption charges. Here are some details from the article:
George Ryan's lawyers urged a judge Thursday to give the former governor a break when she sentences him next week.... "The public shaming that Ryan has endured combined with the impending loss of his pension greatly lessens the need for the court to punish through the sentencing process," Ryan's lawyers said in court papers.... "Even a sentence of no more than 30 months could take away the last healthy years of his life," they said. They said stress resulting from the case also represents a danger to his health....
Prosecutors haven't tipped their hand as to how much time they will ask Pallmeyer to impose on Ryan, but the court papers filed by his attorneys indicated the government may seek to boost the sentence above what might normally be called for under advisory federal sentencing guidelines. Ryan's lawyers indicated that the pre-sentence report on Ryan given to the judge — which is not public record — contains possible recommendations of extra time for obstruction of justice and other alleged conduct.
Information about new FSG amendment
The US Sentencing Commission has cleared up some of the mystery surrounding its recent work (background here and here). The USSC has now posted information at its website concerning its promulgation of a new emergency guideline amendment regarding intellectual property crimes: here is a USSC press release about its work, and here is a synopsis and the text of the emergency amendment to the guidelines.
August 31, 2006
Starting a sentencing commission? Start here
As I have noted before, the amazing new blog Corrections Sentencing has an amazing series of posts about starting a sentencing commission. A helpful reader, who happens to know a few things about sentencing commissions, has compiled the entire series in a pdf document, which can be downloaded below. Here is this reader's assessment: "For anyone remotely interested in learning about the many benefits a good sentencing commission can provide, this document is an absolute must-read, as is the new web site."
Government burden flip-flop does not change Staten ruling
The Ninth Circuit today in US v. Staten, No. 05-30055 (9th Cir. June 7, 2006), amended (Aug. 31, 2006) (available here) held fast to its prior ruling that "the clear and convincing standard still pertains post-Booker for an enhancement applied by the district court that has an extremely disproportionate effect on the sentence imposed." Notably, in the original Staten appeal, the government suggested this was the proper rule. But, in the amended Staten opinion, there is now this interesting footnote:
After the publication of the original opinion in this case, the government informed us that it has reconsidered its position and intends to argue in future cases that "all factual findings under the Guidelines should be made by preponderance of the evidence — and that, in light of Booker, this Court's line of cases to the contrary is no longer applicable." The government did not, however, seek rehearing of this case and does not disagree with our description of the position it took in this appeal.
More on clerk diversity and SCOTUS sentencing work
Following up Linda Greenhouse's recent article about the dearth of female Supreme Court clerks, Dahlia Lithwick has this cool piece up at Slate entitled "Clerked Around: Is there a major girl crisis in Supreme Court hiring?" I call the piece cool in part because Dahlia is kind enough to reference my long-ago comments on the topic here when I was guest-blogging at PrawfsBlawg.
My PrawfsBlawg post, which focused on the "feeder judge" dynamic, suggested that "the perspectives and insights of the clerks as a group would be greatly enhanced if more came from state court clerkships or district court clerkships or even positions in other government branches." Not only do I think that greater "feeder" diversity would be good for the work of the Court as a whole, I think it would be especially valuable for the Court's sentencing work. As I (sometimes) highlight on this blog, there are so many important sentencing issues beyond the death penalty and the federal guidelines that might benefit from SCOTUS attention, but a cadre of clerks from the federal circuit courts typically only get to see a tiny slice of the sentencing universe.
Some related posts about clerks, the cert pool and SCOTUS's docket:
- How might a gendered clerk reality impact the SCOTUS cert pool?
- Roberts, the cert pool, and sentencing jurisprudence
- Problems with the SCOTUS docket
- More on Alito and the criminal docket
- Time to take some more Blakely and Booker cases....
- A criminal start to OT '06 for SCOTUS
Sixth Circuit affirms sizeable downward variance
Concluding a month in which it has done a lot of strong post-Booker work on reasonableness review, the Sixth Circuit today issued a thoughtful opinion in US v. Collington, No. 05-4054 (6th Cir. Aug. 31, 2006) (available here). In the split decision in Collington, both the majority and dissent get in some good shots, though I think the majority's explanation for why a 10-year below-guideline sentence was reasonable in this case is most convincing. Especially intriguing are these two footnotes from the majority responding to points by the dissent:
[FN2] The dissent notes that this variance is 36% below the low end of the guidelines range. Dissent Opn. at 1, 6, 11. Such analysis has no place in a review for reasonableness. There is no mathematical percentage or formula that defines what reasonableness is. Appellate review simply can not be reduced to such cold calculations. It is those very calculations that Booker and its progeny attempted to remove from the federal sentencing process.
[FN3] While the dissent criticizes the district court for giving Collington "a gift," this is no reason for this Court to find Collington's sentence unreasonable. What may be overlooked in appellate review is the fact that the district court does not issue its sentencing remarks in a vacuum or exclusively with this Court's review in mind. These comments are delivered directly to the defendant, often times with family members present. We should not begin persecuting the district courts for any niceties they may state in communicating its sentence to the defendant. Such a practice would only lead to depersonalizing an already difficult situation.
Significant variance for former Virginia mayor
As detailed in news stories here and here and here, former Lynchburg Mayor Carl Hutcherson, who was "convicted in May of raiding his church's charity to pay his bills," faced a guideline sentencing range of 37-46 months. But yesterday US District Judge James Turk "instead sentenced Hutcherson to 36 months of probation and six months of house arrest, and ordered him to perform 200 hours of community service." According to one story, "Turk said Hutcherson has a history of honorable public service and could be a productive member of society again. He also pointed to the defendant's model behavior on pre-trial release and said he believes his sentence will send a strong message."
All three press stories linked above provide slightly different accounts of the sentencing proceeding and notable quotes from various interested parties. This is my favorite passage from one of the stories:
"We prosecute the case and the judge judges the case, so we respect his judgment," said prosecutor Tom Bondurant. However, within hours of the sentencing, Bondurant had filed a notice of appeal to the 4th Circuit Court of Appeals.
September FAMM Foundation gala
As detailed at this link, Families Against Mandatory Minimums is having a gala event in Washington DC on Septmber 21 to celebrate its 15th anniversary and to honor those "whose voices have fostered support for sentencing justice." Here is a snippet from its promotion of the event:
Families Against Mandatory Minimums Foundation (FAMM Foundation) celebrates 15 years of advocacy for fair and proportionate sentencing laws on behalf of the thousands of individuals and families affected by harsh mandatory sentences. Since 1991, FAMM's work has directly contributed to more equitable sentences for tens of thousands of defendants nationwide and paved the way for a shift away from mandatory sentencing policies. Among FAMM's successes are changes to federal LSD and marijuana sentencing policies, and a "safety-valve" to allow judges to sentence below the mandatory minimum in certain federal drug cases. In Michigan, FAMM led the successful effort to repeal all drug mandatory minimum sentences — a change that provided earlier parole eligibility to hundreds of prisoners serving harsh sentences.
August 30, 2006
A new (and new type of) data report from the USSC
I remain in the dark about exactly what the US Sentencing Commission did at its meeting today (background here), although I am pleased to see a helpful reader provided this not-so-encouraging report. In any event, the USSC deserves some good tidings for releasing a new back of post-Booker data on its Booker webpage.
The new data, available here, is now labeled a "Quarterly Sentencing Update," and it is described as an "extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2006." When time permits, I hope to comment on what we might learn from this latest data set.
UPDATE: There are a lot of charts and graphs in the new report, but nothing jumps out as startlingly noteworthy.
Judge Adelman in fine Booker form
I always get a blast of post-Booker encouragement from the sentencing work of Sentencing Hall of Famer Judge Lynn Adelman. His latest great opinion US v. Cull, No. 05-CR-329 (E.D. Wis. Aug. 30, 2006) (available for download below), addresses thoughtfully the notion that a non-guideline sentence must be supported by factors unusual or unique to the defendant. Here are some highlights (with cites omitted):
While I based this non-guideline sentence on the specific circumstances of the offense and the individual characteristics of the defendant, I note that there was nothing extraordinary about this case or this defendant. He was not entitled to a departure under pre-Booker standards. Further, some of the factors I relied upon (e.g., prior substance abuse, minimal record, non-violent offense) could possibly apply to other defendants, as well. Nevertheless, under Booker and § 3553(a), I was empowered to impose such a sentence.
There have been suggestions in some recent appellate decisions that a district court may not vary from the guidelines unless it finds some factor unusual or unique to the defendant warranting the variance. It is difficult to see the basis for such a rule — which sounds very much like the old departure standard — in Booker or § 3553(a). Moreover, such a rule improperly elevates the guidelines above the other factors set forth in § 3553(a). In essence, it makes the guidelines the objective measure of the sentence, and disallows any other sentence unless the court is able to explain why the guideline sentence is wrong. The district courts' limited departure authority did not save the guidelines in Booker, and if appellate restriction of sentencing discretion continues such that the new system begins to resemble the old, another disruption may be in the offing.
Prior posts with some of Judge Adelman's extraordinary post-Booker work:
- Another (very different) view of Booker from a district court
- Judge Adelman strikes again
- More amazing post-Booker work by Judge Adelman
- Three more great Booker decisions from Judge Adelman
- Judge Adelman spotlights problems with mandatories
- Judge Adelman on extraordinary acceptance of responsibility
- Judge Adelman provides more post-Booker wisdom
- More fast-track work from Judge Adelman
- Judge Adelman on variances from career offender guideline
Third Circuit on co-defendant disparity after Booker
The Third Circuit has a nuanced, and somewhat opaque, discussion of co-defendant disparity today in US v. Parker, No. 05-3427 (3d Cir. Aug. 30, 2006) (available here). Here are some highlights (with lots of cites/quotes/footnotes omitted):
After Booker, district courts must take account of the Guidelines together with other sentencing goals provided in § 3553(a). We have concluded that Congress's primary goal in enacting § 3553(a)(6) was to promote national uniformity in sentencing rather than uniformity among co-defendants in the same case. Therefore, a defendant cannot rely upon § 3553(a)(6) to seek a reduced sentence designed to lessen disparity between co-defendants' sentences.
Although § 3553(a) does not require district courts to consider sentencing disparity among co-defendants, it also does not prohibit them from doing so. Section 3553(a) both sets forth numerous factors that guide sentencing and guides appellate courts in determining whether a sentence is unreasonable. So long as factors considered by the sentencing court are not inconsistent with those listed in § 3553(a) and are logically applied to the defendant's circumstances, we afford deference to the court's broad discretion in imposing a sentence within a statutory range. Where appropriate to the circumstances of a given case, a sentencing court may reasonably consider sentencing disparity of co-defendants in its application of those factors.
South Dakota Governor halts execution over lethal injection concerns
For weeks, it appeared that South Dakota was sure to have its first execution in over a half-century. But, as detailed here, a funny thing happened on the way to the death chamber:
South Dakota Gov. Mike Rounds put a stop to the state's first execution in 59 years, just hours before it was scheduled to take place. Elijah Page, 24, had requested the state put him to death by lethal injection. He was convicted of torturing and killing a man in 2000.
Rounds concluded that state law describing how lethal drugs should be administered is obsolete. He then halted the execution.... Rounds says, "I will not have the individuals responsible for carrying out this execution to be placed in a position to where they would be or could be in violation of a state statute in the carrying out of an execution... We could have had people wondering for the rest of their lives if they did the right thing."
The execution is now delayed until July 1, 2007. [Rounds] says that will give lawmakers time to review the law, and amend it so that it will match other states that use lethal injection.
This AP story has details about this surprising development in South Dakota. Tellingly, while execution plans were disrupted up north, due south in Oklahoma a scheduled lethal injection went forward. This Reuters story provides the details of the execution of Eric Allen Patton and the rejection of his lethal injection claims.
Some recent posts on lethal injection issues:
A variance intended to reduce disparity
In debates over the state and fate of the post-Booker world, the Justice Department and others sometimes point to the increased rate of non-guideline sentences as proof of increased sentencing disparity. But this report of a federal sentencing in Philadelphia provides insight into how some judges vary from the guidelines in an effort to reduce sentencing disparity:
Daniel Pellicciotti ... pleaded guilty last October to bribing a city official so his construction firm could be certified as a woman-owned firm.... Although sentencing guidelines called for a sentence of 24-30 months, U.S. District Judge Stewart Dalzell sentenced Pellicciotti to five years' probation, fined him $6,000 and ordered him to pay restitution of $31,852....
The feds said Pellicciotti plied Wendell Toland, a former official of the city's Minority Business Enterprise Council (MBEC), with cash and free meals from January 2000 through the following summer.... Toland pleaded guilty in 2004 to extortion and was sentenced in May 2005 by U.S. District Judge Michael Baylson to three years' probation. He cooperated with federal investigators on other matters.
It was clear almost from the outset of Pellicciotti's sentencing that he, too, wouldn't be doing hard time. Dalzell said Toland was "far more culpable" than Pellicciotti, who he said was "a guy trying to raise his family."
Assistant U.S. Attorney Joan Markman argued that the relationship between Toland and Pellicciotti had been "symbiotic" and that both men stood to benefit from their illegal acts. "It's perfectly OK that the public official who made this happen got three years' probation and [Pellicciotti] should get jail. Does that make sense to you?" Dalzell chided.
How might a gendered clerk reality impact the SCOTUS cert pool?
As detailed in posts linked below, I have long speculated that the operation of the SCOTUS cert pool, and thus the insights and interests of the Justices' clerks, has a profound impact on the Supreme Court's docket. With these concerns in mind, I read with great interest this New York Times article by Linda Greenhouse, which examines the fact that "women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994."
Related posts about the cert pool and the SCOTUS docket:
- Roberts, the cert pool, and sentencing jurisprudence
- Problems with the SCOTUS docket
- More on Alito and the criminal docket
- Time to take some more Blakely and Booker cases....
- A criminal start to OT '06 for SCOTUS
The power of the guidelines and the presumption of reasonableness
I have been complaining (see here and here and here) about circuits judging Booker reasonableness in reference to the guidelines, rather than in reference to the provisions of 3553(a). Two more recent decisions highlight, yet again, the impact of reasonableness review centered around the guidelines.
In the Fifth Circuit case of US v. Aguirre-Villa, No. 05-50978 (5th Cir. Aug. 29, 2006) (available here), and in the Tenth Circuit case of US v. Branson, No. 06-3038 (10th Cir. Aug. 29, 2006) (available here), the defendants make thoughtful and nuanced arguments that their within-guideline sentences are unreasonable. But in both cases, the panels stress that the sentence imposed fell within the guidelines and rely heavily on the presumption of reasonableness afforded to within-guideline sentences to affirm.
August 29, 2006
Interesting government account of post-Booker sentencing
If time and energy permit, I am hoping to take up the Ninth Circuit's invitation to play Booker 20 questions as part of its en banc hearing in Zavala and Carty addressing reasonableness review and post-Booker sentencing standards. (Steven Kalar provides the basic back story in this post at the Ninth Circuit Blog.)
Reviewing some case materials, I found the government's petition for rehearing en banc in Zavala to be an especially good read. I have uploaded that successful petition below, and here I reprint the brief's notable account of the government's view of post-Booker sentencing (emphasis in original):
Under the advisory Guidelines, a sentencing court is free to consider any fact relevant to the § 3553(a) factors, whether that fact is articulated by a party or discerned by the court on its own. A court is not barred by the fact that the Sentencing Commission has already taken account of a factor in fashioning the Guideline range, or that a particular factor is discouraged or even forbidden by the Guidelines. The judge is permitted to consider the full range of § 3553(a) considerations before deciding what sentence to impose.
Terrific NIJ drug court report
Though released earlier this summer, I just found an interesting report from the National Institute of Justice entitled "Drug Courts: The Second Decade." The report, which can be accessed here, has this introduction:
Researchers have begun to look at the inner workings of drug courts and to investigate how key functional drug court components, singly and in combination, affect outcomes. When the evidence base resulting from such research is sufficiently strong to support meaningful conclusions about effectiveness, research can be translated into practice.
This compendium presents findings from several recent studies that speak to the concerns of practitioners and policymakers about "what works." Sometimes the studies confirm what previous research has found, and sometimes they raise more questions than they answer. But in every instance, they contribute to the slowly building base of knowledge about "the drug court effect."
Related posts on drug courts: