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September 30, 2006

More weekend blog reading

In addition to the posts noted here, weekend sentencing surfers will want to check out a number of interesting new posts at:

September 30, 2006 | Permalink | Comments (1) | TrackBack

September 29, 2006

Sensenbrenner officially introduces topless guidelines Booker fix

I heard word today that House Judiciary Committee Chairman, F. James Sensenbrenner, Jr. has (finally) officially introduced a legislative Booker fix in the form of HR 6254 (available for download below).  Though some resist the label "topless guidelines," that label is the easiest way to describe a bill that is formally called the "Sentencing Fairness and Equity Restoration Act of 2006."  I likely will spend the weekend discussion this (somewhat expected) development, but I have an afternoon with more fun that blogging planned.  Plus, as revealed below, I have already blogged aplenty about these matters.

Download booker_introduction_draft.pdf

Just some of many posts on topless guidelines and other Booker fix buzz:

Posts in my (now dated) "Dead Booker walking?" series:

September 29, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (4) | TrackBack

Friday afternoon around the blogosphere

Lots of great sentencing-related items around the blogosphere to make you feel like you are working while surfing on a Friday afternoon:

September 29, 2006 | Permalink | Comments (0) | TrackBack

Teach sentencing opinion writing

A favorite reader pointed me to this interesting article from the National Law Journal extolling the value of a law school course on writing judicial opinions.  Here is a snippet:

[F]ew lawyers have had occasion to reason through a legal problem, or grapple with a record, from a judge's perspective.  Well-designed opinion-drafting exercises can help to fill this experiential gap and ground the development of an empathetic grasp of the choices and dilemmas that judges face. And this can lead to better advocacy.  For this reason, law schools might well consider making opinion-writing exercises part of the standard curriculum.  But, as more law schools are recognizing, the topic is large and important enough also to merit its own course.... [S]tudents particularly benefit from working on hard cases with messy records and uneven briefing.  In such cases, institutional and policy concerns ... loom especially large.

Regular readers will not be surprised by my endorsement of more law school coursework focused on judicial decision-making, and also my interest in encouraging schools to recognize the special benefits of sentencing being the substantive focal point of such work.

September 29, 2006 in Who Sentences? | Permalink | Comments (4) | TrackBack

September 28, 2006

Blakely issues still not getting any respect

I often cannot help but complain that Blakely issues (and other criminal justice issues) do no get the attention and respect they deserve.  And my dander is up again now that Supreme Court preview season is in high gear.  SCOTUSblog has lots of previews assembled here; the linked items continue the trend I have noticed of all the previews giving short shrift to the criminal law issues — and especially the two big Blakely cases — on the docket.  Oh well, you can always get your fill (and more) of SCOTUS Blakely coverage here.

Just a few of the hundreds of recent SCOTUS/Blakely posts:

September 28, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

The challenge of mapping out sentencing justice

An interesting federal sentencing yesterday in Connecticut, covered by the New York Times and by the Boston Globe, highlights that rarely is everyone content with a sentencing outcome.  Here are the basics from the Times: "A map dealer who stole nearly 100 rare maps valued at $3 million from Yale and other institutions was sentenced to three and a half years in prison on Wednesday after a federal judge credited him for helping the authorities retrieve most of the items taken." 

The Globe reports that "prosecutors said the sentence was appropriate" in light of the defendant's post-crime coopertation.  But, as detailed in this Hartford Courant story, some crime victims walked away unhappy:

The librarians spoke eloquently and from the heart.  They evoked the words of our Founding Fathers and described how Forbes Smiley, responsible for one of the great map heists in recent times, had become a symbol: of the vulnerability of libraries, the merchandising of history and the fragility of the public trust.  Hours later, the librarians walked out of the federal courtroom dejected.  Smiley, the map dealer who crossed two continents looting the world's finest libraries of nearly 100 maps, was sentenced Wednesday to 3½ years in prison....

The leniency showed Smiley was taken hardest by the British Library, which had asked [District Judge] Arterton to go beyond the sentencing guidelines.  The library suspects Smiley of stealing more maps and thinks that for all his cooperating, he has more secrets to share. All of the libraries except the Newberry Library in Chicago are thought to be missing additional maps.

September 28, 2006 in Offense Characteristics | Permalink | Comments (1) | TrackBack

Further Fastow and other white-collar follow-up

Though the blogosphere had lots of commentary in a matter of hours, traditional media are now starting to reflect on the sentence given to Andrew Fastow earlier this week (basics here).  Here are two notable commentaries I have seen:

In addition, Houston's Clear Thinkers has this additional follow-up on Fastow and other Enron doings.  Also, reflecting more broadly on corporate scandals and sentencing outcomes, Professor Nancy Rappaport has this interesting commentary at Jurist entitled "Don't Outsource Your Conscience: Lessons in Corporate Truth."

September 28, 2006 in Enron sentencing | Permalink | Comments (0) | TrackBack

Keeping an eye on the judiciary

An interested reader has sent me this interesting press release about the House Judiciary Committee approving proposed legislation to establish an "Inspector General for the Judicial Branch."  Here are details from the press release:

The House Judiciary Committee today overwhelmingly approved legislation establishing an independent Inspector General (IG) for the Judicial Branch by a 20-to-6 vote.  The Judicial IG, though more limited in power than the more than 60 IGs currently serving in agencies and other places, would be charged with identifying waste, fraud, and abuse in the Federal Judiciary's $6 billion annual budget as well as investigating alleged misconduct under the "Judicial Conduct and Disability Act of 1980." ...

House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.), the sponsor of H.R. 5219, stated, "An overwhelming number of my colleagues today recognized that an independent Judicial IG will improve the spending, operations, and integrity of the Federal Judiciary. Currently there is no auditor for how the Federal Judiciary spends its money. An independent IG can help the courts eliminate wasteful spending and more efficiently administer the judiciary’s six billion dollar budget."...

The Committee adopted by voice vote a substitute amendment offered by Chairman Sensenbrenner to clarify the role of the Inspector General.  The legislation now explicitly prohibits the Inspector General from investigating or reviewing the merits of a judicial decision.  The substitute also significantly narrows the investigatory powers of the Inspector General to only alleged misconduct under the "Judicial Conduct and Disability Act of 1980." The bill originally authorized the IG to investigate all "matters pertaining to the Judicial Branch."

This bill might readily be characterized as another salvo in the pitched battle between the legislature and the federal judiciary or as simply a small effort to create some useful oversight for the management of the judicial branch.  Thoughts, dear readers?

September 28, 2006 | Permalink | Comments (3) | TrackBack

September 27, 2006

With reasonable(ness) friends like these...

In prior posts here and here, I have provided copies of the parties' briefs filed earlier this week in the Ninth Circuit en banc action addressing reasonableness review after Booker.  Today I can upload some of the amicus briefs, one of which I wrote.  Unsurprisingly, the one I wrote has a somewhat academic quality to it, while the one from the Ninth Circuit Federal Defenders is a bit more doctrinal. 

Download bermanamicuszavala_brief.pdf

Download cartyzavala_9thdefenders_amicus.pdf

September 27, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

A lethal hearing (in the wrong place?)

Howard here at How Appealing has collected some of the media coverage of the first day of the trial in federal district court concerning California's lethal injection protocol.  As this Los Angeles Times article explains, the "four-day trial here is one of several court proceedings around the nation in which lethal injection is under challenge as a violation of the U.S. Constitution's ban on cruel and unusual punishment."

I continue to be disappointed, as explained in this post and this article, that scrutiny of execution processes is taking place mostly in federal district courtrooms rather than in the halls of Congress or state legislatures.  As I have said before, anyone genuinely interested in federalism, or sentencing consistency, or orderly government has to find the patchwork and disparate litigation taking place in federal district courts nationwide unseemly and counter-productive.  Congress could, at the very least, hold hearings to explore the medical matters at issue in all the litigation.  Congress might also weigh in on the merits by encouraging states to adopt an improved lethal injection protocol. 

Of course, there are pros and cons to legislative action in this context.  But the basic question and concern is whether, in a society committed to democratic decision-making, Congress should just sit on the sidelines while important matters of life and death unfold in court.

Some related posts:

September 27, 2006 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Exciting times at OSU Moritz College of Law

As if the sentencing world was not dynamic enough, I have the pleasure of attending lots of exciting events in my own backyard at the OSU Moritz College of Law over the next 10 days:

September 27, 2006 | Permalink | Comments (0) | TrackBack

New SSRN series on corrections and sentencing

I am pleased to report that a new subject-matter ejournal has been developed at SSRN on the topic of "Corrections & Sentencing Law & Policy."  I was honored to be asked to serve on the advisory board, and I am grateful that SSRN papers on topics closest to my research fields will be collected in one place.  More details are available here, where you will find this overview:

Corrections and Sentencing Law and Policy Abstracts provides a forum for works-in-progress, abstracts, and completed articles dealing with the broad range of doctrinal, theoretical, and policy issues relating to the punishment, sentencing, and re-entry of convicted criminal offenders.  Topics include (but are not limited to) prison and jail conditions and life; prisoners' rights; probation, parole, and re-entry; prison and jail administration; imprisonment and diversionary sentencing, and the death penalty.  The journal also invites submissions dealing with the implications of incarceration and other criminal punishments for families, communities, and society as a whole. Contributions from all disciplines are welcome.

September 27, 2006 in Recommended reading | Permalink | Comments (0) | TrackBack

September 26, 2006

Government's brief in Ninth Circuit Booker en banc

Never let it be said that this blog is not, like Fox News, fair and balanced.  Yesterday I posted here the  joint supplemental brief filed by the defendants in the Ninth Circuit en banc action addressing reasonableness review after Booker.  Today I have a copy of the government's supplemental brief for downloading below.  Happy reading.

Download cartyzavala_gov_supp_brief.pdf

September 26, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Collecting Fastow sentencing blog commentary

Not suprisingly, the six year sentence given to Andrew Fastow (basics here) has the blogosphere buzzing.  Here is just some of of the notable commentary I have seen:

September 26, 2006 in Booker in district courts | Permalink | Comments (0) | TrackBack

Seeking cert-worthiness: good post-Booker SCOTUS vehicles?

As noted here, the Supreme Court did not grant cert on any major criminal cases today. But, as discussed here, the Cunningham and Burton cases already scheduled for fall argument satisfy my ache for post-Blakely issues on the SCOTUS docket.  The big brewing question, as I have previously discussed here and here, concerns when and how the Supreme Court will take up a post-Booker federal sentencing case. 

Late last week I received a copy of a cert petition filed in US v. Thurston, a case coming from the First Circuit (discussed here) where the panel ruled that a large downward variance was unreasonable (despite being supported by two district court rulings), and then strangely declared that a sentence of at least 36 months was likely needed to survive reasonableness review.  I view Thurston as one of perhaps many suitable cases that the Supreme Court might use to provide much-needed clarity about post-Booker sentencing procedures and reasonableness review.  Interested readers can download the Thurston petition here:

Download thurston_cert_petition.pdf

A few recent related posts:

September 26, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Fastow gets only six years' imprisonment

I just received the somewhat surprising news that, as detailed in this Wall Street Journal alert and this AP coverage, that "Former Enron Corp. chief financial officer Andrew Fastow was sentenced today in a Houston federal court to six years in prison followed by two years of full-time community service for his role in the crimes committed at the energy giant."  Fastow's plea deal capped his sentence at 10 years, and I think most observers expected a sentence near that cap.

I encourage commentators to debate whether the comparable sentences now given to Fastow of Enron and Jamie Olis of Dynegy (details here) is a great example of sentencing consistency or of unwarranted sentencing disparity.   Because of all their great coverage of white-collar sentencing, I'm already looking forward to the reactions of Tom Kirkendall and the folks at the White Collar Crime Prof Blog.

September 26, 2006 in Enron sentencing | Permalink | Comments (3) | TrackBack

SCOTUS soft on crime as it fills its docket

As detailed here at SCOTUSblog, the Supreme Court today granted cert on nine new cases.  I documented in this prior post that the Court has a heavy criminal law docket to start its new term, but the new grants are light on criminal justice issues.  Here is Lyle Denniston's report on the two grants that should most interest criminal law folks:

Among the cases granted was one filed by the federal government, testing whether an alien living in the U.S. can be deported after being found guilty of a crime that could include a verdict of aiding and abetting (Gonzales v. Duenas-Alvarez, 05-1629).

In a death penalty case with significant potential for affecting the relationship between criminal defendants and their defense lawyers, the Court will hear an Arizona appeal testing whether defense counsel has a duty to develop and offer evidence favorable to the client, when the client actively opposes any such maneuver. (Schriro v. Landrigan, 05-1575).

UPDATE: Crime & Consequences has this post with a fascinating observation about the SCOTUS habeas docket this term: "There are now five Ninth Circuit habeas cases on the argument docket: Belmontes, Musladin, Bockting, Burton, and Landrigan.  All except Burton are cases where the state petitioned on the ground that the Ninth exceeded the limits on federal habeas review."  I find it sad and telling that the only defendant to lose in the Ninth Circuit from this group (Burton) was the one arguing to extend Blakely rights.

September 26, 2006 in Who Sentences? | Permalink | Comments (0) | TrackBack

A lot more lethal injection action

The lethal injection stories unfolding nationwide continue to capture media attention.  The biggest development, as discussed in throughtful articles from the Los Angeles Times and the AP, is the start of the trial in federal district court in California to review that state's lethal injection protocol.  But also noteworthy is this news from South Dakota about the work of branches other than the judiciary to improve that state's execution process.

Some recent related posts:

September 26, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Defendants' brief in Ninth Circuit Booker en banc

As detailed here and here and here, the Ninth Circuit last month granted rehearing en banc in two cases addressing reasonableness review after Booker and oral argument is scheduled for the end of next week.  Supplemental briefs had to be submitted yesterday, and I will be posting those that come my way.  The first I received was a joint brief from the defendants, which can be downloaded below. 

Download cartyzavala_supp_brief_en_banc.pdf

September 26, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

New Justices content with their dip in the pool

As detailed in this Tony Mauro piece, the new SCOTUS Justices apparently are content to continue to rely on the cert pool to help screen cert petitions:

As they enter their second term, the Supreme Court's two newest justices have decided, at least temporarily, to stick with the Court's clerk-pooling arrangement, despite concerns that it gives law clerks too much power.  In brief interviews in recent weeks, both Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. said they will stay in the "cert pool," as it is called, for the current term.

Roberts said he will participate on a "year-to-year basis," and Alito said the same; both indicated they are still weighing the issues that have been raised. But Alito said that during his first term it was apparent to him that certiorari petitions need to be read closely to determine if they are worth granting -- suggesting some need for pooling the workload.

As discussed 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.  I am a bit disappointed that neither of the new Justices are yet to explore seriously alternatives to cert petition review, but my disappointment is mitigated by the fact that the Court, since the new Justices' arrival, has shown a great interest in more non-capital sentencing issues.

Related posts about the cert pool and the SCOTUS docket:

September 26, 2006 in Who Sentences? | Permalink | Comments (1) | TrackBack