January 25, 2006
Judicial complaint about the guidelines' leniency
Though often federal judges are heard to complain that the federal sentencing guidelines are too harsh, an alien smuggling case from Florida prompted a district judge yesterday to complain that the guidelines were too lenient. Here are the basics from press accounts (here and here) discussing the case:
Two convicted Cuban immigrants were escorted into a federal courtroom Tuesday, fully expecting a judge to put them behind bars for six years for their roles in a smuggling operation that ended in tragedy. They were wrong.
U.S. District Judge K. Michael Moore delayed his decision, saying six years was not enough punishment under federal sentencing guidelines because a young boy drowned in the Oct. 13 illegal crossing of the Florida Straits.
UPDATE: David Markus comments on this case here at his blog, and brings up the ever-popular judge as umpire theme.
January 24, 2006
Taking Booker and 3553(a) seriously
I have lamented today, and many times before (here and here and here), the failure of some federal courts to focus on Congress's commands in section 3553(a) of the Sentencing Reform Act. Booker makes clear that all the provision of section 3553(a), and not just the diktats of the guidelines, are now to guide district court sentencing and appellate court review of sentences. And yet so many opinions — especially coming from the circuits as they presume guideline sentences to be reasonable — still seem to take the guidelines more seriously than Booker and the text of section 3553(a).
But I should know better than to give up on the post-Booker world, and today I received hope in the form of an opinion recently filed by US District Judge Gregory Presnell. Judge Presnell, who long ago already secured a place in my Sentencing Hall of Fame, provides a wonderful lesson in how to take Booker and the text of section 3553(a) seriously in US v. Pacheco, No. 05-cr-137 (M.D. Fla. Jan. 20, 2006) (available for download below). And, along the way, Judge Presnell appropriately takes prosecutors to task for not doing the same. Here's a selection from Pacheco, which is today's must-read:
After Booker, no one can reasonably dispute the fact that sentencing courts have discretion to impose a sentence lesser than the low end of the Guideline range, so long as that sentence is reasonable in light of the Section 3553(a) factors. Nonetheless, the Department of Justice ("DOJ") continues to do so. At every sentencing hearing before this Court, the prosecution recommends a Guideline-range sentence, making no effort to explain that recommendation in light of the Section 3553(a) factors. After any below-Guideline sentence, the prosecutor routinely objects, and the only explanation offered is that the sentence falls short of the Guideline range. Obviously (though not openly), the government continues to maintain its policy that the only reasonable sentence is one that falls within or exceeds the Guideline range — a position that obviously contradicts the Supreme Court's pronouncements in Booker. And DOJ has maintained this posture even though the Eleventh Circuit has explicitly rejected its argument that a sentence in the Guideline range is, per se, a reasonable sentence.
By continuing to insist that this Court rigidly adhere to the Guidelines, prosecutors are violating their obligation as officers of the Court and failing to provide this Court with any meaningful assistance in crafting a reasonable, just sentence.
This week brings two interesting stories concerning the application of Supreme Court's decision in Atkins barring the execution of defendants with mental retardation:
- As detailed in this story from North Carolina, federal District Judge Terrence W. Boyle, rejecting a state court's decision to the contrary, has "concluded that [death row defendant Elton] McLaughlin 'has shown by a preponderance of the evidence that he is mentally retarded' [and he] ordered that McLaughlin's death sentences be vacated and that he serve the rest of his life in prison."
- As detailed in this story from Florida, the Eleventh Circuit has rejected retardation claims by Clarence Hill, who is scheduled to be executed at 6pm on Tuesday. The Eleventh Circuit's decision today in In re Hill , which concludes that his latest habeas application "is over 29 months late and is therefore timebarred," is available here. Another Eleventh Circuit decision, rejecting an attempt to challenge Florida's lethal injection protocol, is available here.
UPDATE: This AP story indicates that the Supreme Court granted a stay in the Hill case around the time of the defendant's scheduled execution. However, these orders from the Supreme Court seem to indicate Hill's claims were ultimately rejected by the full court.
Hearding the Booker harmless error bullfrogs
As noted here, last week in McBride, Sixth Circuit Judge Boyce Martin had this colorful description of the litigation mess in the wake of Booker: "Achieving agreement between the circuit courts and within each circuit on post-Booker issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow." Further proof of how jumpy the circuit bullfrogs can be comes today from the Fifth Circuit's ruling in US v. Woods, 04-11058 (5th Cir. Jan. 24, 2006) (available here).
Woods provides a terrific primer on Booker pipeline issues in the course of concluding that "a sentence imposed at the top of the Guidelines-determined range might be sufficient to prevent a defendant from prevailing under plain-error review, but not sufficient to demonstrate that a Booker error was harmless beyond a reasonable doubt." In Woods, the Fifth Circuit explains why its position is consistent with the law in the Second and Seventh Circuits, but contrary to the approach of the Tenth Circuit (which it finds "less persuasive").
Eighth Circuit cracks up
The Eighth Circuit today issued interesting opinions in two crack sentencing cases: US v. Denton, No. 05-1978 (8th Cir. Jan. 24, 2006) (available here) and US v. Feemster, No. 05-1995 (8th Cir. Jan. 24, 2006) (available here). Both include important discussions of appellate review for reasonableness, and Denton affirms a (within guideline) life sentence, while Feemster remands for resentencing to require the district judge to explain more fully a decision to impose a (below guideline) 10-year sentence.
There are lots of stories to draw from these cases, and I hope to comment further as time permits later today. But one fact in the Denton case jumped off the page: "Denton was offered a plea agreement with an anticipated sentence of 18 to 36 months, but he rejected it and went to trial." Consequently, Denton's decision to put the government to its proof functionally increased his sentence from 18 to 36 months to life imprisonment. Ouch.
UPDATE: A review of Denton and Feemster reinforces not only that the guidelines remain the gold standard for reasonableness review, but also that the circuit courts continue to ignore Congress's commands in section 3553(a) of the Sentencing Reform Act that courts are to impose sentence "sufficient, but not greater than necessary," to comply with the purposes of punishment.
In Denton, a prosecutor obviously at some point thought a sentence in the range of 18 to 36 months was adequate. Nevertheless, the district judge apparently decided to impose a sentence of life imprisonment, and the Eighth Circuit declares this sentence "not unreasonable" in two sentences of summary analysis. Meanwhile, in Feemster, the district court twice explained why it thought the 30-year sentence suggested by the career-offender guidelines was greater than necessary, but the Eighth Circuit is now requiring the district court to provide a "more explicit and thorough consideration of all the factors" in 3553(a).
Follow-up on Ninth Circuit's victim rights ruling
As first discussed here, last Friday the Ninth Circuit addressed an important and essentially new issue of sentencing procedure by exploring "whether the Crime Victims' Rights Act, 18 U.S.C. § 3771, gives victims the right to allocute at sentencing" in Kenna v. US District Court for the Central District of California, No. 05-73467 (9th Cir. Jan. 20, 2006) (available here). Today I see two interesting follow-up items:
1. This article from The Recorder discusses the ruling and notes that, although the Kenna ruling is "a victory for crime victims, [Kenna's lawyer] said the ruling underscored that courts are not yet prepared to deal with new judicial guidelines mandated by the act. It took more than eight months for Kenna's case to be decided, even though the law directs that such petitions be decided within 72 hours."
2. Thanks to this tip from Appellate Law & Practice, I see that Professor Shaun Martin has more than a few choice words here about Judge Kozinski's work in Kenna. Here's a taste: "Judge Friedman [in a short separate opinion] may say more smart things in those three paragraphs -- and definitely says a lot fewer stupid things -- than Judge Kozinski does in his 13-page opinion for the majority."
Capital news and notes
Today's papers have a number of interesting death penalty items this morning:
- This article from California details that "nearly three decades after capital punishment was reinstated in California, the constitutionality of using pancuronium bromide is one of several active disputes that could force systemic changes."
- This editorial from the Houston Chronicle contends that "efforts to determine whether a state has executed an innocent man reflect the country's growing unease with capital punishment."
- This article details that "the U.S. Army has issued new regulations governing the death penalty, raising speculation that the military might be preparing for its first execution since 1961. "
January 23, 2006
Of sentencing interest in the latest Harvard Law Review
The January issue of the Harvard Law Review is now on-line here, and there are two items that should be of particular interest for sentencing folks:
- Professor Bill Stuntz has a provocative and important article entitled The Political Constitution of Political Justice. This article has already generated justifiable blogosphere praise/buzz (see here and here).
- This student comment is highly critical of recent sex offender legislation in Alabama, and it concludes that the new rash of tough sex offender laws "represent reflexive legislative reactions to public hysteria, not rational policy decisions" which in fact "waste not only public resources, but also an opportunity to actually protect the safety and well-being of potential victims of child sexual abuse."
Interesting Ninth Circuit opinion on "crime of violence"
A decision from the Ninth Circuit today in US v. Serna, No. 04-10597 (9th Cir. Jan. 23, 2006) (available here), provides another interesting window into the bizarro world of the federal sentencing guidelines. I have previously noted how a "crime of violence" is interpreted under the guidelines can often be very important and very curious: crimes such as operating a vehicle without the owner's consent and fleeing a police officer can qualify as a "crime of violence" leading to large sentence increases. But, through the Ninth Circuit's decision in Serna, we learn today that illegal possession of an assault weapon does not qualify as a "crime of violence" under the guidelines.
I had long ago hoped that Booker might lead to a shrinking of the importance of the curiouser and curiouser jurisprudence surrounding "crimes of violence." Sadly, since the guidelines' diktats have remained the focal point of federal sentencing, it appears that Booker has not yet brought us out of this federal sentencing rabbit hole.
Looking ahead to SCOTUS Blakely action
As detailed over at SCOTUSblog, there wasn't any notable sentencing action in the Supreme Court's work today and now the Court goes into recess for four weeks. Not only does this schedule allow everyone plenty of time to enjoy SuperBowl hype, it also provides time to gear up for the notable Blakely action that will be on tap when the Justice get back to work. Specifically, there are at least two big Blakely stories that will unfold in the coming months:
- As shown from this docket sheet, the Gomez case from Tennessee (background in this post) is scheduled for its third SCOTUS conference on February 17. And, intriguingly, a number of the Blakely cases coming from California will also be conferenced that day, as revealed by docket sheets in Black, Cunningham, Diaz, and Harless. Consequently, by the second half of February, we ought to have some new information and insights concerning whether, when and how the Supreme Court may examine state sentencing systems that have elided Blakely.
- A bit of Blakely March madness will develop around the Supreme Court's consideration of Washington v. Recuenco (docket 05-83), which concerns whether Blakely errors can be subject to harmless-error analysis. Though not yet officially scheduled, Recuenco will likely be argued in the second half of March. I provided some coverage of Recuenco back in October when cert. was granted, and I plan to discuss the case a lot more as oral argument approaches.
Folks interested in these and other state Blakely stories should be sure to check out this recent issue of the Federal Sentencing Reporter, which provides thorough and thoughtful coverage of the state of Blakely in the States. More background on that issue is available at this post.
UPDATE: Based on this post about the argument schedule at SCOTUSblog, it now appears that Recuenco won't be argued until April (even though cert. was granted well before some of the cases now scheduled to be argued in March). Hmmmm.
January 22, 2006
A very public plea for a (very unlikely?) clemency
As detailed in this CNN article, "after years of silence, the father of American-born Taliban soldier John Walker Lindh asked President Bush on Thursday to grant clemency to his son, who he says was wrongly maligned as a traitor and murderer." I hope the Lindh family is not holding its breath: in the recent words of former pardon attorney Margaret Colgate Love, President Bush's clemency and pardon work has been "careful to the point of trivializing his pardon power."
Related posts with a lot more coverage of the President's clemency and pardon work:
- A thorough review of GWB's pardon work
- A new round of Bush pardons
- More pardons from President Bush
- More (minor) pardons from President Bush
- More insights on the recent Bush pardons
- Bush's stingy pardon practice
- More pardon buzz
- Media criticism of Bush's pardon practice
- The Washington Post on Bush's pardons
The state of sentencing in Oregon
Oregon Circuit Court Judge Michael Marcus, who has this fascinating site supporting his "Smart Sentencing" Project, was reported that Oregon has its newly revised "Criminal Benchbook" on the Oregon courts' public site here. Judge Marcus has these interesting comments about this interesting resource:
The benchbook is 1160 pages, pdf format, searchable, hyperlinked in the table of contents [and elsewhere], and also navigable by the usual Adobe Reader tools. Unique, and uniquely vetted by the Criminal Law Committee of the Oregon Judicial Conference [no other portion was deemed controversial], are the first 30 pages of the Sentencing chapter, which notes current sentencing issues and provides practical suggestions for smart sentencing analysis -- all beginning at page 727.
I have quickly scanned the sentencing chapter of the benchbook, and it makes for an interesting read.
Booker Debate Club highlights
As I had hoped, the Legal Affairs' Debate Club was a great setting to discuss post-Booker realities. The full debate is available at this link, and Legal Affairs has graciously granted permission for the full text to be reprinted in a forthcoming issue of the Federal Sentencing Reporter. Below I have excerpted some highlights of the extended exchanges I had with Professor Frank Bowman in our debate about the future of federal sentencing:
DOUG: Congress should steadfastly resist any proposed quick fixes for the federal sentencing system. Congress should give the U.S. Sentencing Commission and other interested groups ample time to conduct in-depth analyses and assessments of post-Booker sentencing realities.
FRANK: A year has passed since the Booker decision [and] we have a very good idea about how the post-Booker system has worked so far.... The Federal Sentencing Guidelines survived Booker. They are advisory, but remain a legally relevant, and in some jurisdictions dominant, factor in determining federal sentences. Nonetheless, since Booker, the rate of compliance with the Guidelines, by which I mean the percentage of cases sentenced within the guideline range calculated by the sentencing judge, has declined by about 11% nationally — from about 72% to about 61%.
DOUG: [P]re-Booker realities cannot nor should not be our gold standard for assessing the current state of federal sentencing: (1) the pre-Booker sentencing system, according to the Supreme Court, violated defendants' Sixth Amendment rights, and (2) the pre-Booker sentencing system, according to nearly all observers, distinguished itself by virtue of its overall complexity, rigidity and harshness. Consequently, because the pre-Booker sentencing system was both unconstitutional and unsound, evidence of "decreased compliance" with the guidelines perhaps should be a cause for celebration and not concern.
Indeed, I have been disappointed to discover that a culture of guideline compliance is so entrenched in the federal sentencing system.... [W]hen I look over the post-Booker landscape, I am actually most concerned by how little change we've seen in judicial sentencing practices.
FRANK: There is a substantial group of folks who, a year or so ago, were withering in their criticism of the pre-Booker guidelines and passionate in their cries for abolition of that assertedly awful system, but who are now arguing passionately that the post-Booker guidelines should be left unmolested.... What's going on here? Why has a new system so very close in design, operation, and outcomes to the old one so many loved to hate suddenly become the apple of so many eyes? The answer plainly lies in considerations of political pragmatism.
DOUG: [T]hough I agree that pragmatism more than principle explains Booker's fans, I also think devotion to Booker is grounded in its potential.... But Booker's potential will be wasted if judges and the Sentencing Commission continue to cling to the existing guidelines like Linus clutching his security blanket. I fear that it is some judges and members of the Sentencing Commission whose reaction to Booker has been unduly shaped by pragmatism rather than principle. I sense many are still embracing and even extolling the current guidelines out of fear that Congress might over-react to any efforts to bring more humanity to sentencing decision-making. But, rather than be stifled by such an understandable but unhealthy fear, judges and the Sentencing Commission should seize this unique post-Booker moment as an opportunity to begin incrementally developing a more fair and effective federal sentencing system.
FRANK: In the end, I think the post-Booker system neither will nor should survive for long.... [W]hat will drive the Justice Department is its perception of what it has lost, and not what it has held onto. Moreover, though post-Booker sentencing practice viewed through the lens of national averages has changed surprisingly modestly so far, the direction of the observable changes is plain and not congenial to either Congress or the Justice Department. Still more importantly, as time goes on and judges become more accustomed to the restoration of a measure of their old authority, they will surely exercise it more.... In consequence, whatever DOJ policymakers may think of the current state of things, they will act based on predictions of a future they will see as growing ever less attractive.
DOUG: You are absolutely right that "what will drive the Justice Department is its perception of what it has lost, and not what it has held onto." But ... post-Booker prosecutors have not lost the ability to help achieve justice in individual cases. Rather, what prosecutors seem to have lost (though only somewhat) as a result of Booker is (1) their considerable power to roll over defendants during plea negotiations through the threat of harsh mandatory sentencing terms, and (2) their unfettered discretion to dictate precise federal sentencing outcomes through their charging and plea decisions.
FRANK: If a fundamental reconfiguration of federal sentencing structures is to occur, someone or some institution outside of Congress, the Justice Department, and the robed judiciary will have to take the lead in formulating and advancing it. Congress lacks the expertise for the job. DOJ has the expertise but not the motivation. The judges don't do legislation. Institutionally, that leaves the Sentencing Commission. One of the most puzzling features of the post-Booker landscape is the absence of the Commission as anything other than a gatherer of data. The Commission has the time, the expertise, the data, and (one would think) the motivation to take a leading role in molding thinking about where we should go from here. But the silence from the second floor of the Thurgood Marshall Building has been deafening.