October 7, 2006
Oral argument in Ninth Circuit en banc reasonableness cases
The big en banc argument on reasonableness review in the Ninth Circuit took place on Friday (in which I submitted this amicus brief), and the audio file can now be accessed here. All Booker fans will want to listen, and all will likely be encouraged by the thoughtfulness of all the Ninth Circuit judges' questions.
I must admit to being a bit disappointed by the arguments made by defense counsel, and to being wowed (as I usually am) by the arguments made by Michael Dreeben on behalf of the government. In my view, the defendants' consel should have focused far more on the provisions and precise text of 18 U.S.C. § 3553(a). But I was highly encouraged that Judge Kozinski and some other judges pushed the statutory text hard in questioning of Michael Dreeben. I am now hoping that Judge Kozinski writes the opinion for the court in these en banc cases.
Recent posts about reasonableness review in the Ninth Circuit:
What, no sentencing?
This New York Times article discusses my alma mater's recent revamping of its curriculum; Harvard Law School students will now have to take "a course in legislation and regulation; one of three new courses dealing with international law; and a course on legal problem solving." Kudos to HLS for its (long overdue) update to its curriculum, especially given "the place the institution has in the history of legal education."
I have argued here that sentencing is the most "under-taught" class in law schools, and I am not at all surprised that sentencing has not jumped into HLS's mandatory curriculum. But, more problematically, sentencing has not often been an elective course at HLS. That is a real shame (and perhaps a reason many elite junior lawyers are not adequately familiar with some of the most pressing modern criminal law issues).
Another Enron cooperator gets shortened sentence
As detailed in this article, another Enron cooperator has received a shorter sentence as a result of that cooperation. Here are some details:
Enron Corp.'s former No. 2 investor relations executive who helped link former company Chairman Ken Lay and former CEO Jeff Skilling to fraud in their trial earlier this year will serve probation for two years for insider trading, a judge ruled Thursday.
Paula Rieker, 52, wept before U.S. District Judge Melinda Harmon, prompting a court staff member to hand her a box of tissues as she asked for probation. Insider trading carries a maximum sentence of 10 years in prison, but Rieker was eligible to serve probation to six months behind bars under federal sentencing guidelines.
Some related posts:
October 6, 2006
A terrific district court opinion on acquitted conduct
Regular readers know that I find puzzling — and especially troubling after Blakely and Booker — federal approval of sentence enhancements based on acquitted conduct. (Consider, for example, my sincere questions about acquitted conduct.) Thus, I am pleased to enter a long weekend by spotlighting a wonderful new district court opinion that thoughtfully explains why acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decison-making.
The opinion comes from District Judge Walter Kelley in US v Ibanga, No. No. 2:04cr227 (E.D. Va. Oct. 5, 2006) (available for download below). There are so many great passages in Ibagna it deserves repeated readings. Here are just a few highlights:
Sentencing a defendant to time in prison for a crime that the jury found he did not commit is a Kafka-esque result.... [But rather than reach a definitive constitutional ruling on this practice after Booker, the] Court instead concluded that basing defendant Ibanga's sentence on the crimes for which he was acquitted would contravene the statutory factors set forth in 18 U.S.C. § 3553(a)....
Punishing defendant Ibanga for his acquitted conduct would have contravened the statutory goal of furthering respect for the law and would have resulted in unjust punishment for the offense for which he was convicted (i.e., money laundering). 18. U.S.C. § 3553(a)(2)(A). From defendant Ibanga's perspective, a Guidelines sentence would certainly have resulted in confusion as to the law, and confusion breeds contempt. Defendant Ibanga is an immigrant to this country who has not had the benefit of extensive education, much less an intensive law school seminar on post-Booker sentencing practices. What could instill more confusion and disrespect than finding out that you will be sentenced to an extra ten years in prison for the alleged crimes of which you were acquitted? The law would have gone from something venerable and respected to a farce and a sham....
The jury as an institution not only guards against judicial despotism, but also provides an opportunity for lay citizens to become both pupils of and participants in our legal and political system.... A sentence that repudiates the jury's verdict undermines the juror's role as both a pupil and participant in civic affairs. The juror as pupil learns that the law does not value the results of his or her participation in the judicial process and may reject it at will.
SCOTUS grants cert to supervise Texas capital work
As detailed here at SCOTUSblog, the Supreme Court granted cert on two cases today, one of which is a capital case out of Texas. This is particularly interesting for reasons well explained in Lyle Denniston's post:
The second case is a prisoner appeal in a capital case, Smith v. Texas (05-11304, opinion below). The Supreme Court had overturned LaRoyce L. Smith's death sentence in November 2004, but the sentence was reimposed by Texas state courts....
The new case appears to be the latest episode in a continuing test of wills between the Supreme Court and Texas state courts over the standards to be used in capital sentencing proceedings. Four former federal judges, supporting Smith's appeal, urged the Court to hear the case "to reaffirm that lower courts, on remand, must comply with this Court's mandates and must not invent new procedural obstacles to avoid compliance." This amici brief said that the Smith case involves resistance to the Supreme Court's earlier mandate. The Texas court, on remand, created and applied "a harmless error analysis that had never before been applied in this case or context.... What the state court has done in this case is flout this Court's interpretation of [constitutional] guarantees. Such an action should not be permitted to stand, for it undermines the Constitution, our federal system, and this Court's role in the enforcement of limits imposed by both."
Interesting (and interestingly timed) Ninth Circuit reasonableness work
Today was the big en banc argument on reasonableness review in the Ninth Circuit (relevant links below). I am hoping that someone in attendance at the argument might file a field report (although the audio should soon be available here).
In the meantime, the Ninth Circuit issued an opinion today in US v Nichols, No. 03-30503 (9th Cir. Oct. 6, 2006) (available here), which interesting has an extended dicussion of reasonableness review. Nichols is interesting for lots of reasons (and has lots of aspects). It especially spotlights that prosecutors may often be far more lenient in the exercise of their discretion than judges. In Nichols, the government "explicitly recommended a 30-month sentence" for a defendant with a "horrendous" criminal history. But the sentencing judge, following 3553(a), concluded he needed instead to impose a sentence of 57 months. The Ninth Circuit in Nichols finds this longer sentence reasonable, concluding with this sentiment:
The district court's approach was reasoned and addressed factors specified in § 3553(a). More importantly, Nichols has not demonstrated that the district court overlooked any significant factor, gave improper weight to any factor or otherwise imposed an unreasonable sentence. It may be that a 30-month sentence also would have been reasonable, but the issue here is whether the sentence imposed was unreasonable. It was not.
Recent posts about reasonableness review in the Ninth Circuit:
Sentence reductions to revive an aging Miranda?
As previously noted here, today the Ohio State Journal of Criminal Law is having a symposium on "Miranda at 40." As detailed in this schedule, this event is bringing together many leading lights on interrogation law and policy (and will be webcast).
I am not a Miranda expert, but I do tend to bring my sentencing prespective to all debates over police practices. Specifically, when I teach the police practices course and we get to discussing remedies, I often ask students whether a better remedy than the exclusionary rule for police misdeeds might be sentence reductions. I always find it useful and interesting to speculate about the impact on decision-making by police, prosecutors and judges if a standard remedy for unlawful police behavior was an automatic (and steep?) sentencing discount rather than exclusion.
For many years, students rightly viewed my remedy talk as an academic flight of fancy. But, in the wake of Justice Scalia's interesting recent exclusionary rule jujitsu in Hudson, perhaps we might start seeing a more robust and serious discussion of alternatives to the exclusionary rule.
When the #@$* hits the (sentencing) fan
Especially the Friday before a long weekend, I can't help but spotlight this little AP story, headlined "Man Apologizes for Courtroom Feces." Here is the stink:
A Chicago man apologized for spreading his feces around a courtroom during his trial on drug charges. Vandale Amos Willis, 28, apologized Wednesday before being sentenced to more than 10 years in prison. Willis was convicted earlier of importation of a controlled substance, cocaine, and two other charges....
He asked Judge David Sullivan to put him on probation. Sullivan told Willis his actions wouldn't be held against him, but there was no reason to depart from sentencing guidelines.
Perhaps I should write an article about this case in the hopes of increasing my SSRN downloads.
Eleventh Circuit shuts down another lethal injection litigant
Late yesterday, the Eleventh Circuit in Rutherford v. McDonough, No. 06-10783 (11th Cir. Oct. 5, 2006) (available here) turned away another capital defendant's effort to assail Florida's lethal injection protocol through a § 1983 suit. A split panel Rutherford essentially follows the lead of a prior panel's work in Hill (discussed here and here) in ruling that the death row defendant's § 1983 suit was brought too late. Judge Wilson writes a lengthy dissent, which concludes with this footnote:
A court in the Northern District of California is currently hearing expert testimony regarding a challenge to California's lethal injection protocols, which are materially similar to Florida's procedures. Morales v. Woodford, No. C-06-219-JF-RS (N.D. Cal. 2006). Rutherford deserves the same opportunity. Consequently, I would grant Rutherford's Application for a Stay of Execution, permitting him to return to the district court for a hearing on the merits of his § 1983 claim.
Some recent related posts:
- Regulating executions in California
- A lethal hearing (in the wrong place?)
- My lethal injection piece on SSRN
UPDATE: This Los Angeles Times article discusses the California lethal injection litigation noted by Judge Wilson. Here is the lead:
A federal judge considering the constitutionality of the way California kills condemned inmates has asked prosecutors and defense lawyers a series of questions — including how the lethal injection procedures could be improved — that pose difficulties for both sides, experts say.
October 5, 2006
OSJCL symposium on state sentencing after Blakely
My co-authored article urging SCOTUS to bring some order to its sentencing jurisprudence in Cunningham (discussed/linked here) is part of a symposium on state sentencing after Blakely in the (soon to go to press) Fall 2006 issue the Ohio State Journal of Criminal Law. The other major pieces in the symposium are to be Professor Richard Frase's piece, entitled "Blakely in Minnesota, Two Years Out: Guidelines Sentencing is Alive and Well," and Chief Justice Michael Wolff's piece, entitled "Missouri's Information-Based Discretionary Sentencing System."
I will provide links to these pieces soon. In the meantime, you can get a taste of their insights from the introduction to the symposium that guest editor Steve Chanenson and I put together, which is entitled "The Real (Sentencing) World: State Sentencing in the Post-Blakely Era." That intro can be downloaded below, and here is a paragraph from its start:
The symposium in this issue of the Ohio State Journal of Criminal Law seeks to ensure that the broader stories of Blakely and modern state sentencing reforms get the attention they merit. Looking ahead to future Supreme Court rulings and looking back on post-Blakely developments, contributors to this Symposium enrich our understanding of Blakely's impact and enhance the insights to be drawn from state sentencing reform efforts.
California's state of (prison) emergency
As detailed in this Los Angeles Times article, California's overcrowded prisons has now led Arnold Schwarzenegger to proclaim a state of emergency, which "could allow the transfer of inmates as soon as next month to other states without their consent." The article explains that Gov. Schwarzenegger said "he was taking the extraordinary step because teeming conditions have created a health risk and 'extreme peril' for officers and inmates at 29 of the state's 33 prisons." Here are some details:
Though overcrowding has long been an issue in the state's lockups, it has reached crisis levels over the last few years, with most of California's prisons packed to twice their intended capacity. Of the 172,000 men and women behind bars, about 17,000 are in what Tilton called "bad beds" — bunks in areas not designed as living space. Prisoners now sleep in converted gyms, hallways and lounges. Roughly 1,500 sleep in triple-decker bunks.
Some related posts:
Regulating executions in California
This Los Angeles Times article, entitled "The Chaos Behind California Executions," provides highlights from the four days of hearings last week in federal district court concerning California's lethal injections protocol. And now, thanks to Boalt Law School's great death penalty clinic website, you can access the elaborate follow-up questions that Judge Fogel has asked the parties in this Request for Briefing.
One almost needs a medical degree to fully appreciate the many questions Judge Fogel is asking about California's execution protocol. As a result, I cannot help but again wonder, as I have before in this post and this article, why the examination and regulation of California's execution processes is unfolding in a federal district court rather than in the state legislature.
Some recent related posts:
- A lethal hearing (in the wrong place?)
- My lethal injection piece on SSRN
- Missouri still struggling with its execution protocol
- A bit of lethal injection history
- How could (and should) Congress clean up the lethal injection mess?
- Old school execution
- Lethal injection litigation creates de facto moratorium in Ohio and...
October 4, 2006
Yet another notable on-line law journal companion
Others in the blogosphere here and here have noted the announcement of the American Constitution Society's new affiliated journal, the Harvard Law & Policy Review (HL&PR). What I find most intriguing about this project is that it begins with the unveiling of HL&PR Online, which becomes yet another high-profile on-line companion to another high-profile law journal. Others in the booming genre (in order of appearance?) are:
- Yale Law Jounal's Pocket Part
- Harvard Law Review's Forum
- First Impressions (Michigan Law Review)
- PENNumbra (University of Pennsylvania Law Review)
CORRECTION: I received this "urgent correction" from friends in New Haven (which is now reflected in this list above):
I must request that you amend your recent [initial] post, which suggests that Harvard's Forum predates our beloved Pocket Part. Harvard's first posting is here; please observe that the URL clearly contains the date "dec05." Compare our first post; published two months earlier -- an eon in blog-time!
They may have beaten us to the punch in 1887, but we can't allow them to steal pride of place in 2005.
On goes the Foley scandal
You would think the folks in DC would some day realize that cover-ups are often the source of more trouble than the trouble itself. Today, according to reports from ABC, efforts to cover up Rep. Foley's actions has led to one GOP staffer resigning. Meanwhile, Orin Kerr is again working on unpacking various criminal law issues raised by the tangled web still being woven.
Some recent related posts:
- How could and should Foley be prosecuted?
- How will Foley's folly impact the sex offender panic?
- Holy moly Foley!
Blakely's silver lining (to go with its heart of gold)
Regular readers know I am a fan of the Blakely ruling on its own terms. But critics of Blakely and Booker will want to be sure to check out Joanna Shepard's arguments, set out in her new paper entitled "Blakely's Silver Lining: Sentencing Guidelines, Judicial Discretion, and Crime," that Blakely could ultimately produce a reduction in crime rates. Here is the abstract to this intriguing paper:
The Supreme Court's recent striking down of criminal sentencing guidelines in its Booker and Blakely decisions could have a substantial unexpected benefit: the likely expansion in judicial discretion may reduce crime. I show that, contrary to the expectations of many of the original supporters of sentencing guidelines, guidelines are associated with significant increases in crime. After developing several economic theories of guidelines' impacts, I investigate these impacts empirically using a large state-level data set. This study is the first to use regression analysis to explore the relationship between sentencing guidelines and crime. Results show that guidelines are associated with increases in both violent crime and property crime. If, as is probable, the alternatives to guidelines after Booker and Blakely expand judicial discretion in criminal sentencing, then crime may decrease substantially.
As the abstract reveals, this paper is not really about Blakely and jury trial rights, but rather about the relationship between judicial sentencing discretion and crime rates. The Justice Department has been saying, since Blakely and before, that rigid mandatory sentencing guidelines have helped produce a reduction in crime. This paper seems to argue that the opposite is true. (Personally, I think these complex dynamics cannot be subject to any simple cause-effect relationship.)
UPDATE: Michael Connelly here at Corrections Sentencing has a strong review of this article. He notes some methological concerns and then shares there concluding sentiments:
It's useful for the points it manages to make and for the hole it puts in the conventional wisdom. We need this kind of shakeup of our suppositions. What the article needed was peer review by trained criminologists and political scientists, not folks trained in the narrow cognitive world of law and econ. The author would have had to have made a much better argument, but the one made is one that must be considered by all of us, nevertheless.
Proofs of Making Sentencing Sensible
As first detailed here, Stephanos Bibas and I have authored an article urging SCOTUS to bring some order to its sentencing jurisprudence as it considers Cunningham, the California Blakely case. The article, entitled "Making Sentencing Sensible," is now in proofs and will very soon be published in the Fall 2006 issue of the Ohio State Journal of Criminal Law.
Commentors provided terrific feedback on the earlier draft here (and via e-mail), and now I am posting below the revised draft that incorporates this feedback. We still have a few days to catch any typos or other small errors on the proof, so feel free to keep the helpful feedback coming.
Read all the Blakely retroactivity SCOTUS arguments
We are now only a week away from SCOTUS arguments in Cunningham, the big case about Blakely's application to California's structured sentencing system (background at this category archive). But if retroactivity issues are more your cup of Blakely tea — an issue soon to come before the Court in Burton — a lot of exciting reading is now available.
Thanks to Kent Scheidegger providing this post at Crime & Consequences and this link, everyone can now easily access all of the briefs filed so far in Burton. In an e-mail, Kent noted that the Criminal Justice Legal Foundation's amicus brief at pages 14-15 cites to my very first post about Blakely as evidence that Blakely announced a new rule. (Not surprisingly, the CJLF brief does not highlight that I might consider Blakely a watershed rule under Teague even if it does qualify as new.)
There is a lot of heavy lifting in all these briefs, but I hope to comment at length about the arguments being made in Burton, and the broader realities of Blakely retroactivity, as the oral argument date (Noember 7) approaches.
Related posts about Burton:
Comparing Ebbers and Fatsow sentencing outcomes
Over at Jurist, guest columnist Douglas Branson has this very interesting commentary about recent white-collar prosecutions and sentencings entitled "Fastow and Ebbers: A Tale of Two Criminals." The commentary is full of intriguing insights, and it closes with this paragraph:
What do we learn from this? One, corporate CEOs are much like ship captains: they may be blamed for everything that happens on their watch, whether they are complicit or not. Two, the much ballyhooed Department of Justice guidelines mean nothing in high profile white collar crime cases. They don't prevent lynching the less blameworthy; they also permit a mere slap on the wrist to the greedy, the sophisticated, and the stealthy if they turn state's evidence. Three, Ebbers should serve roughly the same as, or only a little more, or even a little less, time than should Andrew Fastow, at least if we are concerned about doing justice.
Confusing guideline-centric reasonableness ruling from the Fifth Circuit
The circuit have been relatively quiet on Booker matters lately. I suppose this is good news, given that rulings like the Fifth Circuit recent work in US v. Roush, No. 05-10238 (5th Cir. Oct. 3, 2006) (available here), can produce more confusion than clarity about reasonableness review after Booker.
Roush involves sentencing in a tax evasion case that is complicated legally and factually both at the district and circuit level. The case comes to the Fifth Circuit based on the defendant's appeal of his 27-month sentence, but the defendant seems to lose by winning. The Roush panel finds the defendant's sentence unreasonable, but does so through an opinion that suggests that the defendant's should be higher, not lower, at resentencing.
Folks who know something about tax law — paging Paul Caron — might have a lot to say (and criticize?) about aspects of Roush. I will just spotlight that Roush provides yet another example of a circuit framing and judging reasonableness in reference to the guidelines, rather than in reference to the provisions of § 3553(a). As I have lamented the in prior posts here and here, circuits keep exploring how a sentence measures up relative to the guidelines, rather than exploring how a sentence measures up relative to the purposes of punishment set out in § 3553(a)(2).
October 3, 2006
Holy moly Foley!
Details about former Rep. Foley's unsavory behavior continues to dribble out: the ABC news blog and CNN are now both reporting that "Former Congressman Mark Foley (R-FL) interrupted a vote on the floor of the House in 2003 to engage in Internet sex with a high school student who had served as a congressional page." For law geeks, this latest revelation leads to interesting legal questions about whether "Internet sex" qualifies as "sexual activity" under various potentially applicable state and federal criminal laws.
Those thinking through criminal law issues might be interested in the early numbers from an ABC poll asking: "What sort of punishment is appropriate for former Congressman Mark Foley"? With 10,000 responses as of 5pm EDT, almost 75% are already indicating that "He should face criminal charges," with another 20% saying "Not sure. The case needs to be investigated further." Less than 5% of respondents indicate that they think he has been punished enough because "He has already resigned from his position."
Some recent related posts:
UPDATE: Orin Kerr at The Volokh Conspiracy does a strong job here walking through some of the legal issues raised if (and when?) federal prosecutors consider pursuing federal charges against Foley. And TChris here at TalkLeft spotlights that Foley's still-emerging excuses for his behavior are very unlikely to shift public opinion that is obviously so solidly against him.
ANOTHER UPDATE: Consider the developing Foley saga against the backdrop of this local article from Pennsylvania discussing an event in which State Attorney General Tom Corbett warned high school students about "clean-cut" predators using the internet to try to arrange sexual encounters with young people. This closing passage from the article is especially interesting:
Students peppered Corbett with questions after the talk, asking him why people become predators and how much jail time they face. Corbett said the penalties could range from a few years for someone who attempts to have sex with a young person, to more than a decade if they carry out the act. ''The [sentencing] guidelines haven't caught up with what is happening with technology and crimes,'' he said.