October 14, 2006
Is the Sixth Circuit's Vonner a goner?
Late yesterday, I received the very interesting news that the the Sixth Circuit issued an order on Thursday granting en banc review in US v. Vonner. As detailed here, Vonner is the recent Sixth Circuit case in which Judge Martin declared a within-guideline sentence unreasonable for "lack of adequate explanation," and in which Judge Siler dissented to complain that the "numerous cases by our court on the reasonableness of sentences post-Booker have confused attorneys and district courts alike."
By now going en banc on reasonableness review in Vonner, the Sixth Circuit joins the Ninth Circuit (which, as detailed here, has reasonableness en banc cases now fully briefed and argued) in setting up one big ruling to help guide lower courts on post-Booker sentencing and reasonableness review. Though I do not yet know the briefing/argument schedule for Vonner, it will be interesting to see which circuit can render a reasonable reasonableness opinion first (and whether either circuit will beat a possible forthcoming Supreme Court cert. grant on a post-Booker case).
Some recent Booker reasonableness posts:
- Is a Booker reasonableness cert grant on the horizon?
- When and how should SCOTUS take up reasonableness review?
- Are more than 99.9% of guideline sentences reasonable?
- Tracking reasonableness review outcomes ... final update?
- Oral argument in Ninth Circuit en banc reasonableness cases
- Is a presumption rebuttable if it is never rebutted?
- The central flaw in reasonableness review
More strong collateral consequences commentary
In this recent post, I noted thoughtful discussion of issues relating to the collateral consequences of a criminal conviction over at blackprof. Here are some more such posts that should not be missed:
- Voting from Jail
- On Reentry: The Obligations We Owe
- Why Disenfranchisement Differs from Other Restrictions
Uncovering lethal injection realities
Sarah Tofte, a researcher at Human Rights Watch and co-author of this recent HRW report on lethal injections in the US, has this notable commentary reacting to the evidence developed int he recent hearing concerning California's lethal injection practices. Here is how it starts:
As a student of lethal injections in the United States, I assumed nothing any state official might say about such executions could shock me. But I underestimated California's officials. Evidence uncovered during Michael Morales' constitutional challenge to the state's executions ... reveals an astonishing history of negligence, incompetence, and irresponsibility.
Some recent related posts:
- Regulating executions in California
- 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 13, 2006
Shaming punishments and communitarianism
Orin Kerr has here effectively jumped into today's debate over shaming punishments (basics here). Orin terrifically explains my communitarian-based grounds for suggesting that shaming punishments may actually honor and strengthen human dignity:
Don't [shaming punishments] rely on, and ultimately reinforce, the notion that the offender is a valued member of the community? It seems to me that the offender feels shame precisely because he values his position in the community. Thus judges hand down such punishments only when they think the offender values his position and will want to restore it to its earlier status. In that sense, then, shaming punishments are not about dehumanization, but about hope and community: the punishment is based on and recognizes the hope that the offender will feel a strong enough connection to the community that he will feel shamed, and that the community will value that person's connection to the community enough to react to the offender.
Along these lines, consider this Wikipedia entry on Crime in Japan which notes here the theory that "an important factor keeping crime low [in Japan] is the traditional emphasis on the individual as a member of groups to which he or she must not bring shame."
Second Circuit finds above guideline sentence reasonable
Today in US v. Pereira, No. 05-5969 (2d Cir. Oct. 13, 2006) (available here), the Second Circuit continued the pattern of appellate courts affirming above-guideline sentences as reasonable after Booker. Pereira is troubling for various reasons:
First, Pereira seems to apply a review standard other than just reasonableness as required by Booker. Citing a bunch of pre-Booker precedents, it seems to demand that the defendant show the sentence was infected by "egregious and obvious" error. This seems quite misguided.
Second, Pereira indicates that a "cursory" explanation is sufficient for an above-guideline sentence, even though that explanation never addressed the parsimony provision of 3553(a), nor really explained how an above-guideline sentence comported with any of the 3553(a) factors.
Third, nothing in the Pereira facts reveals anything special about the defendant to justify an above-guideline sentence (indeed, the guideline range was greatly elevated by 16-levels based on a questionable guidelines interpretation). Consequently, Pereira is in tension with the Second Circuit's work in Rattoballi and Castillo, both of which reversed below-guideline sentences and stated that there needed to be something individually special about a defendant to justify a non-guideline sentence.
Ninth Circuit upholds 159-year mandatory term of imprisonment
With thanks to Howard for the tip, I see the Ninth Circuit has today upheld in US v. Hungerford, No. 05-30500 (9th Cir. Oct. 13, 2006) (available here), a woman's 159-year federal sentence for various robbery convictions. The facts suggest that the defendant was a lesser "Bonnie" who helped her "Clyde" carry out numerous armed robberies. In a concurring opinion, Judge Stephen Reinhardt notes that the the defendant is a "mentally disturbed woman with no prior criminal record" who "never touched a gun."
Judge Reinhardt's opinion is a fascinating attack on mandatory minimum sentencing, with many notable passages. Here is one such passage:
[I]t is difficult to escape the conclusion that the current mandatory sentencing laws have imposed an immensely cruel, if not barbaric, 159-year sentence on a severely mentally disturbed person who played a limited and fairly passive role in several robberies during which no one was physically harmed.
Too bad for the defendant that she was not also required to wear a sign in public saying "I am a thief," since then there might be sustained opposition from others in the legal academy.
Is a Booker reasonableness cert grant on the horizon?
Among other fun matters to debate after the SCOTUS Cunningham oral argument this week (debated here and here) is whether the Court might now be more (or less) likely to grant cert soon on a Booker issue. As detailed in posts linked below, I believe the Court needs to take up a federal sentencing case ASAP to provide lower courts with clearer and more uniform guidance about the rules and procedures for post-Booker federal sentencing.
A helpful reader noticed that two paid cases from the Seventh Circuit, Boscarino and Lister, are both listed for the Court's October 27 conference (see SCOTUS schedule here and here, case background here and here). These cases, and surely lots of pauper petitions also before the Court, likely focus on the question of whether it is proper for a guideline sentence to be deemed presumptively reasonable on appeal.
- When and how should SCOTUS take up reasonableness review?
- Taking stock of post-Booker circuit splits
- Time to take some more Blakely and Booker cases....
- Roberts, the cert pool, and sentencing jurisprudence
- Problems with the SCOTUS docket
- The central flaw in reasonableness review
- Crack reasonableness review should be as easy as 1, 2, 3
Representative Ney cuts a deal for 27 months imprisonment
As detailed in this AP story, Ohio Representative Bob Ney "pleaded guilty Friday in the Jack Abramoff influence-peddling investigation, the first lawmaker to confess to crimes in a scandal that has stained the Republican-controlled Congress and the Bush administration." Here are a few more details:
Standing before Judge Ellen S. Huvelle, Ney pleaded guilty to conspiracy and making false statements. He acknowledged taking money, gifts and favors in return for official actions on behalf of Abramoff and his clients. The 52-year-old lawmaker faces a maximum of 10 years in prison. Huvelle said prosecutors had agreed to recommend a term of 27 months, and said federal guidelines suggest a fine of between $5,000 and $60,000.
What punishments really undermine human dignity?
Thanks to this post by Dan Markel, I saw this short article in The Economist discussing shaming punishments. Dan is a critic of public shaming, and the article reports that he believes "shaming punishments undermine human dignity." Because I generally support shaming punishments (and most alternatives to incarceration), I want to unpack this claim a bit:
1. This critique of shaming, like similarly deontological critiques of the death penalty and other punishments, is just a declaration refutable by a counter-declaration. I can simply assert that shaming punishments actually honor and strengthen human dignity. (Shame seems uniquely human. Notably, we do not shame bad animals, we just lock them in cages or kill them.)
2. As I have said before, shaming punishments must be considered against the backdrop of other punishments and our society's modern over-reliance on incarceration. Is locking lawbreakers in tiny cages better for human dignity than shaming them? As I stressed here after a recent NPR series on Supermax solitary confinement, our imprisonment policies involve a stunning assault on human dignity. Consider again this snippet from NPR:
Wino is a 40-something man from San Fernando, Calif. He was sent to prison for robbery. He was sent to the SHU for being involved in prison gangs. He's been in this cell for six years. "The only contact that you have with individuals is what they call a pinky shake," he says, sticking his pinky through one of the little holes in the door. That's the only personal contact Wino has had in six years.
3. According to the piece in The Economist, Dan's concern is with any punishment that incorporates a "public-humiliation factor." But, given our society's extraordinary (and very costly) reliance on severe private deprivations through mass incarceration, I continue to believe we should be more willing to experiment with novel and public punishments.
UPDATE: Dan responds here, while suggesting that I may be "the only person left in the legal academy who now supports shaming punishments today." I doubt that's true, but if it is, it reinforces my concerns about the legal academy's misplaced sentencing and punishment priorities. To perhaps aid this debate, let me refine my challenge to those who oppose all shaming punishments:
Has any modern shaming punishment ever produced personal harms or society costs anywhere close to the harms and costs to be endured by, say, Robert Berger, the Phoenix high school teacher sentenced to 200 years in prison for a first offense of possessing child pornography?
I wish academics worked up about shaming (or the death penalty) would be more concerned about the affront to human dignity and the principles of liberty represented by lengthy sentences of incarceration. Dan will surely say he is against Berger's sentence, but at some point he must confront the reality that anti-shaming advocacy greatly reduces the likelihood that the public and politicians might start to seriously embrace alternative punishments.
MORE: Scott at Grits for Breakfast has this satisfying addition to this debate.
Northwestern University Law Review starting a blog
Continuing a rapid on-line scholarship revolution, Northwestern University Law Review has announced here that it is starting the "first scholarly weblog to be operated by a major law review [which] will feature legal commentary written in the form of blog posts." This project is being called the Northwestern Colloquy, and it is an intriguing variation on the high-profile on-line companions that have been developed by other high-profile law journals (as discussed here).
Some recent related posts:
- Yet another notable on-line law journal companion
- YLJ Pocket Part on the future of legal scholarship
Some notable white-collar sentencing headlines
The white-collar sentencing news never seems to slow down. Here are two notable items today:
- From the AP here, "Prosecutors push 3 years in prison for former Bush official linked to Abramoff"
- From the Houston Chronicle here, "Prosecutors may ask judge to rethink Fastow sentence"
October 12, 2006
Cunningham predictions, anyone?
Readers continue to add great comments to my first reflections on the Cunningham oral argument. And today's has brought a little Cunningham media coverage from The Daily Journal and the Los Angeles Times. Also, I especially liked Andrew Siegal's insights based on the Cunningham argument here at PrawfsBlawg.
But now I would like to turn from reactions to predictions. For me, the Cunningham oral argument confirmed my own disinclination to make any strong predictions about how the Justices would deal with the case. Based on the argument, it seems that Justices Kennedy and Breyer might be warming to Blakely (at least as a matter of stare decisis), and yet either Justices Alito and Roberts may take former Justice O'Connor's place as Lord of anti-Aprrendi-land.
Given all the complications surrounding California law and post-Booker federal sentencing, today I have been thinking about whether SCOTUS might look for an easy way out in Cunningham. In my view, a DIG would be very irresponsible (and perhaps more harmful to California than a decision either way), but perhaps the Justices can find some other way to dispose of this case without coming fully to blows over the reach of Blakely and the implications of Booker. Still, I suspect that both Justice Stevens and Justice Scalia might not sign on (or sit by quietly) if the Court pursued an easy way out that did not give Apprendi and Blakely its due.
So, smart readers, anyone have any great ideas or have any grand predictions? What do you think SCOTUS should and/or will do in Cunningham? Care to predict who writes, what they might say, and how many votes opinions get? (For my hopes, if not predictions, check out the advice that Stephanos Bibas and I have for the Cunningham Court in our new piece "Making Sentencing Sensible".)
"Brother, can you spare a jail cell?"
At CNN.com you can check out this (amusing? sad?) AP story entitled, "Jobless man asks judge for jail." Here are highlights:
A man who couldn't find steady work came up with a plan to make it through the next few years until he could collect Social Security: He robbed a bank, then handed the money to a guard and waited for police. On Wednesday, Timothy J. Bowers told a judge a three-year prison sentence would suit him, and the judge obliged.
"At my age, the jobs available to me are minimum-wage jobs. There is age discrimination out there," Bowers, who turns 63 in a few weeks, told Judge Angela White. The judge told him: "It's unfortunate you feel this is the only way to deal with the situation." ...
He walked to a bank and handed a teller a note demanding cash in an envelope. The teller gave him four $20 bills and pushed a silent alarm. Bowers handed the money to a security guard standing in the lobby and told him it was his day to be a hero. He pleaded guilty to robbery, and a court-ordered psychological exam found him competent. "It's a pretty sad story when someone feels that's their only alternative," said defense attorney Jeremy W. Dodgion, who described Bowers as "a charming old man."
Prosecutors had considered arguing against putting Bowers in prison at taxpayer expense, but they worried he would do something more reckless to be put behind bars. "It's not the financial plan I would choose, but it's a financial plan," prosecutor Dan Cable said.
Sound like a plot for a movie. Oh yeah, it already has been, and a good one, too.
New sentencing goodies at SSRN
I just noticed these three new piece over at the Corrections & Sentencing Law & Policy SSRN journal that sentencing fans will want to check out:
- White Collar Crime Sentences After Booker: Was the Sentencing of Bernie Ebbers Too Harsh? by Peter J. Henning
- Punishment as Reluctant Moralism by Youngjae Lee
- The Canine Metaphor and the Future of Sentencing Reform: Dogs, Tails, and the Constitutional Law of Wagging by Benjamin J. Priester
The (unrealized?) backdrop for Cunningham
I noted in this post about the Cunningham oral argument (which has prompted great comments) that a number of Justices seemed concerned with the potential practical impact of finding California's sentencing system unconstitutional. These questions implicitly assumed that, from a policy perspective, California's sentencing scheme was sound. But, as this new interesting commentary, spotlights the reality of sentencing and corrections in California isn't so sound:
Jerry Brown and Chuck Poochigian do not agree about much. But both of these candidates for attorney general say that the way California criminals are sentenced and do their time needs changing. If Brown, the Democrat, former governor and now mayor of Oakland, and Poochigian, a Republican state senator from Fresno, agree that the current system is a threat to public safety, maybe it's time for the rest of us to listen.
The problem, the candidates agree, is that most crimes now come with sentences set by law. Convicts serve their terms and are then released back to society, even if they are more dangerous when they come out than when they went behind bars.... With sentences for each crime determined by the Legislature, lawmakers trying to look tough on crime have passed bills lengthening sentences and adding time for complicating factors, such as carrying a gun during the commission of a crime. But the politicians have largely ignored the tougher question of what happens when those convicts get out of prison, as most inevitably do.
The parole system, which is supposed to ease the transition of inmates back into the community, is a farce. The state releases more than 120,000 inmates every year, but nearly 70 percent quickly violate the conditions of their parole and are returned to prison. These violators on average serve an additional five months and are then released again. "It's a revolving door," Poochigian said recently. "The system's not working very well."...
The state's nonpartisan Little Hoover Commission, which evaluates the effectiveness of government programs and policies, long ago recommended that California create a sentencing commission with the power to restructure the state's system of punishment, subject to approval by the Legislature. The commission's charge would be to protect public safety, tailor punishments to fit the crime and foster responsibility in inmates by creating meaningful incentives for them to change their behavior. Other states have used this technique with some success. Maybe it's time for California to follow their lead.
Some related posts on California's sentencing and correction problems:
Media coverage of felon disenfranchisement
I am pleased to see the media giving a lot of attention to the the Sentencing Project's important new report on felony disenfranchisement (discussed here). The New York Times has this piece, and the AP provides additional coverage here. The AP report spotlights these interesting Rhode Island developments:
Rhode Islanders will consider a proposed state constitutional amendment that would allow felons to vote upon release from prison; they currently cannot vote until completing probation and parole, as is the case in more than 30 states.
The measure is supported by a coalition of civic groups, as well as by Police Chief Dean Esserman of Providence, the state's largest city. Its opponents include Republican Gov. Don Carcieri, who argues that felons haven't fully paid their dues to society until they complete parole.
Ryan King, the Sentencing Project policy analyst who authored the new report, predicted the Rhode Island measure would pass, and contended that most Americans support voting rights for people who've served their sentences.
More coverage of the Rhode Island measure can be found in this local news story discussing the impact of felon disenfranchisement in the Union's smallest state.
Some more interesting lethal headlines
Though I am now consumed by the Cunningham beat, interesting developments continue in the lethal injection scrummages. Here are a few newspaper stories from around the country providing highlights:
- From Florida here, "Judge denies latest Rolling appeal"
- From Maryland here, "Testimony continues in lethal injection case"
- From South Dakota here, "Candidates for governor clash on execution policy"
October 11, 2006
Reflections on the Cunningham oral argument
To avoid blogging about every page, I had to go to a coffee shop to read the transcript this morning's SCOTUS argument in Cunningham (transcript here, early analysis here). Because so much could be said about the argument and about particular lines of questions, I hope interested readers (and especially attendees) might chime in with observations in the comments. Here are a few of my first-cut reactions:
1. The actual facts of the case played no role at all during oral argument: the entire discussion was whether the California Supreme Court's (far-fetched?) gloss on California's statutory sentencing law was sufficient to rescue the California structured sentencing system from its apparent violation of Blakely principles.
2. The Justice all seem to be quite aware of how the Booker remedy is playing out in lower federal courts, and yet they all seem to be largely unaware of how Blakely principles have impacted state sentencing reforms. Kudos to Jeff Fisher for his work on an NACDL amicus brief (available here), which highlighted state reactions to Blakely and clearly impacted his old boss, Justice Stevens.
3. Based on their oral argument questions, I got the impression that both Chief Justice Roberts and Justice Alito are somewhat hostile to Blakely. Of course, as suggested here and here, if these two new justices are really in sync with Justices Scalia and Thomas, they would be big fans of Blakely. But I sense that pro-government sentiments may impact these new Justices more than the originalist principles that seem to drive the views of Justices Scalia and Thomas in this arena.
4. The Court seemed to be working toward a constitutional distinction between fact finding (a job for juries) and exercising policy judgments at sentencing (a job for judges). Of course, since I endorsed such a distinction as a way to understand Booker in my recent "Conceptualizing Booker" article and also in my co-authored "Making Sentencing Sensible" article, I would be pleased to see the eventual Cunningham opinion formalize such a distinction.
5. A number of Justices seemed quite concerned — perhaps too concerned? — with what might be the practical consequences of a ruling in favor of the defendant.
Important new report on felony disenfranchisement
With less than a month to go before a big election, the Sentencing Project has released an important new report on felony disenfranchisement. This report, entitled "A Decade of Reform: Felony Disenfranchisement Policy in the United States" can be downloaded below. Here are highlights from an e-mail I received about the report:
Findings published in A Decade of Reform: Felony Disenfranchisement Policy in the United States disclose that since 1997, 16 states have implemented policy reforms that have reduced the restrictiveness of these laws, and more than 600,000 people in seven states have regained their voting rights.
The report also states:
- U.S. disenfranchisement laws remain among the world's most severe despite public opinion polls showing 80% support for restoring the vote to those who have completed their sentences.
- During this year alone, 73 bills on felony disenfranchisement were introduced in 22 states and 85% of these initiatives sought to expand voting rights.
- More than 5 million Americans still will be banned from voting this Election Day; three quarters of those banned — 3.9 million — are living in the community.
- An estimated 1 in 12 African Americans is disenfranchised, a rate nearly five times the rate of non-African Americans.
Cunningham looks to be another state case about federal sentencing
I have now heard from three different terrific sources that this morning's SCOTUS argument in Cunningham, which was technically about Blakely's applicability in California, ended up being all about reasonableness and federal sentencing. (I am inclined to say, "I told you so," to anyone who might have been wondering why I have been making a big deal about this case (as detailed in this category archive).)
Here is part of a great report on the argument that Lyle Denniston already has up here at SCOTUSblog:
A few minutes into the Supreme Court's hearing Wednesday on a California criminal sentencing case, it already had become clear that the case is not really about a specific state sentencing law but is all about what is constitutionally "reasonable" in any system that gives a judge discretion to impose an enhanced prison term. And behind that question lies the future of the federal guidelines system in the wake of the Court's 2005 ruling in Booker v. U.S. In fact, much of the hour's argument in Cunningham v. California (05-6551) amounted to a seminar on Booker.
UPDATE: The Cunningham transcript is now available here (bless those quick same-day transcribers). I'll likely blog a lot about the argument once I have a chance to read the transcript closely.
MORE REPORTS: Baylor Law Prof. Mark Osler was kind enough to file a thoughtful report on taody's oral argument, which can be downloaded below. Here are some highlights:
The Court seemed much more focused on the federal guidelines than state issues, a focus established at the start of arguments by Chief Justice Roberts, who opined that the California system looked much like the federal guidelines. The focus on federal issues may in part have been created by the fact that the California Supreme Court gave the state's defenders little to work with in this appeal. Justice Breyer was befuddled by what that court was trying to say about Booker in the Black opinion, and none of the justices seemed to buy the argument that the California system passes muster because it's requirements and prohibitions are based on "reasonableness."
After the arguments this morning, I think the Court is likely to hold that the California Determinate Sentencing Law (DSL) is unconstitutional, and that the resulting opinion may have a significant impact on the federal guidelines in perhaps far-reaching ways.