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.
A sad example of sentencing sloppiness
Perhaps I am always charged up about sentencing realities because I sometimes find cases in which simple sloppiness can almost cost a person years of their life. A prime example comes from a summary order in the (unpublished) Second Circuit ruling in US v. Day, No. 05-4283 (2d Cir. Oct. 10, 2006) (available here).
In Day, the Second Circuit reverses a 15-year sentence because "the District Court erred in (1) misreading the relevant statute to require that the mandatory minimum sentence it imposed for each count be served consecutively ..., and (2) not making findings in support of its decision that Day did not qualify for safety valve relief." At the initial sentencing, the defendant in this case might have received a 10-year (or even shorter) sentence had the district judge not been led astray by a pre-sentence report that wrongly indicated that two sentences had to be served consecutively.
SCOTUS day for California criminality
Well east coast cases are hip
I really dig those issues they raise
And the southern judges with the way they talk
They knock me out when I'm down there....
But I wish they all could be California cases.
Though Cunningham could be a hugely important Blakely case, the victim issue in Musladin is drawing far more media attention. The San Jose Mercury News has this long piece on the case, and the New York Times has this editorial urging the High Court to affirm the Ninth Circuit.
I have done lots and lots of Cunningham coverage (available at this archive), and here are just some of my recent posts on both these cases:
Top UK justice calls for shorter sentences
As discussed in interesting news reports here and here and here, in the United Kingdom the "Lord Chief Justice declared yesterday that serious criminals are being sent to jail for too long." Here are some details of the Justice's speech as reported by The Sunday Times:
The Lord Chief Justicecriticised ever-lengthening jail sentences yesterday, which he said could in the future be regarded just as shocking as the noose and the whip. Lord Phillips of Worth Matravers said that decisions by politicians and judges on sentencing were being affected by an atmosphere encouraging retribution on offenders. He criticised parts of the media for whipping up a desire among the public for vengeance against criminals.
Politicians, the judges and public are being affected by media criticism, which makes light of prison sentences, the Lord Chief Justice said. He said that a five-year jail term was a very weighty punishment but "some elements of the media are inclined . . . to speak of defendants being permitted to 'walk free' after only five years inside."
The Lord Chief Justice, giving a lecture in Oxford, said: "That is not to say that I do not recognise that there are certain crimes which require a sentence of that length or longer to protect the public, but I detect on the part of such publications an incitement to the public to exact vengeance from offenders not dissimilar from the emotions of those who thronged to public executions in the 18th century."
He criticised sections of the media for failing to explain the judge's reasoning for handing down particular sentences. "Such is the atmosphere that sentencers are criticised for failing to lock offenders up for longer, but without examination as to the explanation given by the judge or the statutory framework in which it was imposed. Media pressure such as this cannot fail to have an effect on the public, on politicians and on judges."
His speech outlined the history of British punishments, including practices now considered "utterly barbaric," such as flogging and the scold's bridle. He then added: "I sometimes wonder whether, in a hundred years' time, people will be as shocked by the length of the sentences we are imposing as we are by some punishments of the 18th century."
What is reasonable to Justice O'Connor?
Howard Bashman notes here that Justice Sandra Day O'Connor is riding circuit around the country, with plans to sit by designation on the Second, Eighth and Ninth Circuits. A heavy rotation of circuit work all but ensures that she will be on a panel asked to judge the reasonableness of a post-Booker sentence. I wonder how Justice O'Connor will approach having to sort through the opaque Booker remedy that she helped create.
Some Booker reasonableness posts:
- 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
October 10, 2006
Around the blogosphere
What will Alito and Roberts do in Cunningham?
Talking to a great reporter today about Cunningham reminded me that Apprendi/Blakely/Booker debates are mostly virgin territory for Chief Justice Roberts and Associate Justice Alito. Though both may have gotten a small taste of the Court's fractured Blakely universe late last term in Recuenco (discussed here and here), neither wrote in that case and the vote was not especially close.
Of course, Justice Alito had a lot of exposure to Apprendi/Blakely/Booker not only during his service on the Third Circuit, but also through his involvement (until his SCOTUS nomination) with the Constitution Project's bipartisan Sentencing Initiative group. That group has been actively working on sound sentencing structures in light of Blakely, and in previous posts here and here I discussed Justice Alito's notable involvement and withdrawal from this endeavor. And, of course, Justice Alito's pre-judicial experience was mostly as a federal prosecutor during the start of the federal guidelines era. Thus, Justice Alito surely brings into Cunningham a lot well-developed instincts and beliefs about modern structured sentencing reforms.
In sharp contrast, Chief Justice Roberts seems to be mostly a blank slate in the entire criminal justice arena. Though he wrote opinions in a few police cases last Term and had a few guideline cases during his brief tenure as a circuit judge, I doubt he has had many occasions to think broadly about modern structured sentencing reforms or particularly about the the particulars of the Court's work in the Apprendi/Blakely/Booker line of cases. Yet, as I suggested here during his confirmation hearings, if CJ Roberts wants to build consensus in this arena, he may have to make a concerted effort to convince Justices Breyer and Kennedy to finally purchase their tickets to Apprendi-land. But that assumes, of course, that CJ Roberts thinks, like Justices Scalia and Thomas, that Apprendi-land is where the Court should be headed.
Some related posts on the new Justices and the Apprendi/Blakely/Booker line of cases:
- What do Justices Alito and Roberts think about bright lines?
- Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
- What does Justice Alito think about Blakely and Booker?
- Collecting Cunningham coverage and briefs
- The possible impact of a Sca-Roberts on sentencing jurisprudence
- The current SCOTUS sentencing head-count
- Why some defendants hope Alito is like Scalia
Some media coverage of Cunningham
Perhaps because Blakely issues are so intricate, there has been little media attention given to in Cunningham, even though it is surely the most significant Apprendi/Blakely case that the Supreme Court has heard in two years. Thus, I was pleased to see Cunningham get a little coverage this morning in this California newspaper article. Here is a snippet:
The U.S. Supreme Court is set to hear arguments Wednesday about a Contra Costa County case that could decide how much discretion California judges have when sentencing convicted criminals. The ruling could change the fundamental laws of sentencing that have guided trial judges for the past three decades.
"In terms of impact on the judicial process, this is huge," said Laurie Levinson, Loyola University School of Law professor. "It could blow apart the California sentencing scheme."... The justices are being asked to determine whether California judges have the authority to decide the truth of aggravating factors, or whether a jury should decide that. The decision could impact convicted criminals awaiting sentence, those currently appealing their cases and possibly even those who have exhausted their appeals, Levinson said....
Ultimately, the justices need to decide between two extremes, said Robert Weisberg, Stanford School of Law professor. In one scenario, judges would sentence a defendant to the middle term unless a jury finds the aggravating factors as true. The other option is giving the judge complete discretion. "Right now, it's hard to tell how the law is supposed to operate," Weisberg said.
Some additional Cunningham basics:
Victims' rights and Wednesday's other SCOTUS case
Regular readers know I find victims' rights issues, especially as they intersect with sentencing issues, quite intriguing (see discussion/links here and here and here). Thus, I am excited for two recent developments that spotlight victims' rights:
1. The next two issues of the Federal Sentencing Reporter (Volume 19, Nos. 1 and 2) will have lots pieces on a wide array of victims and sentencing topics. The first of these issues will be going to press soon, and I can provide a taste of coverage by providing an article now in proofs. Douglas Beloof has written a piece entitled "Judicial Leadership at Sentencing under the Crime Victims’ Rights Act: Judge Kozinski in Kenna and Judge Cassell in Degenhardt" which can be accessed here: Download XX.FSR19.1_Beloof.qxd.pdf
2. On Wednesday morning, in addition to the big California Blakely case (details here), the Supreme Court will hear arguments in Carey v. Musladin, which explores the prejudice that might have flowed from courtroom spectators wearing buttons with pictures of the victim during the defendant's trial. Basic previews of Carey are available from summaries put together by folks at Cornell here and at Medill here. Also, the Criminal Justice Legal Foundation has issued this press release giving its view of this case.
The eventual ruling in Carey may end up being more about habeas review standards than about victims' rights. Still, various groups interested in victims' rights have delivered some interesting amicus briefs in this case. Helpfully, the Criminal Justice Legal Foundation has assembled Carey briefs at this link.
ALI's on-going work on MPC sentencing revisions
Oregon Circuit Court Judge Michael Marcus, whose intriguing website highlights that he is a great sentencing fan, just sent around a report on the status of the ALI's on-going efforts to revise the sentencing provisions of the Model Penal Code:
On October 19 and 20, 2006, the American Law Institute Council will receive and discuss the latest draft of the Model Penal Code sentencing revision. The Reporter has presented several issues to the Council for its resolution, the most significant of which has to do with the place of public safety in the draft's statement of sentencing purposes. If you are interested in the comments I have submitted on these issues, they are available at this link.
October 9, 2006
Are more than 99.9% of guideline sentences reasonable?
Many facets of this list of Booker reasonableness review outcomes are discouraging. But I find most troubling the fact that, a full 21 months since Booker was handed down, circuit courts have reversed only one within-guideline sentence as substantively unreasonable. Consider this fact against the reality that more than 75,000 within-guideline sentence have been imposed, and thousands appealed, since Booker. That only a single within-guideline sentence has been found unreasonable on appeal suggests that the guidelines are thought reasonable by circuit courts in more than 99.9% of all cases.
If the circuit courts generally viewed everything district courts did after Booker reasonable, this within-guideline statistic might not be so jarring. But, as this list shows, the circuits have declared unreasonable a below-guideline sentence in more than 50 cases appealed by the government (while affirming only a handful of below-guideline sentences). So, while the circuits have found 99.9% of within-guideline sentences to be reasonable, they have concluded that the district judge has issued a reasonable sentence in less than 20% of the cases in which the government appeals. Stunning (and sad).
Tuesday's criminal case before SCOTUS
Tomorrow morning, the Supreme Court will hear arguments in US v. Resendiz-Ponce, which asks whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. Basic previews of Resendiz-Ponce are available from summaries put together by folks at Cornell here and at Medill here.
Though I am not positive, I believe that oral argument in Resendiz-Ponce will be a showdown between
two one of my favorite SCOTUS advocates: Michael Dreeben for the government (as petitioners). I am already looking forward to reading the transcript tomorrow.
Thoughtful work on collateral consequences
Around the blogosphere one can find thoughtful work/coverage of issues relating to the collateral consequences of a criminal conviction. For example, over at blackprof, Michael Pinard has these two strong posts:
- Juveniles and Collateral Consequences: Is There a Theory to Support the Practice?
- Reentry Issues and Questions
In addition, as the White Collar Crime Prof Blog notes here, Margaret Colgate Love, who previously served as the Pardon Attorney in the Justice Department, has a new book that focuses on collateral consequences. The book is entitled, "Relief from the Collateral Consequences of Conviction: A State-by-State Resource Guide." Ordering information is here, along with this description:
The guide is the first comprehensive survey of U.S. laws and practices that offers a way to overcome or mitigate the collateral legal consequences of a criminal conviction. It begins with short analytical pieces on executive pardon, judicial expungement and sealing, deferred adjudication and set-aside, certificates of rehabilitation, and laws that limit consideration of conviction in connection with employment and licensing. The heart of the guide is its detailed descriptions for each U.S. jurisdiction of available relief mechanisms and how they operate. Also included are charts that allow easy state-to-state comparisons. The guide is an invaluable resource for policymakers and researchers dealing with the legal barriers to offender re-entry, and for practitioners at every level of the justice system.
Collecting Cunningham coverage and briefs
On Wednesday morning, the Supreme Court will hear arguments in Cunningham v. California. Cunningham is probably the most significant Apprendi/Blakely case that the Court has heard in over two years, and its ruling could have a significant ripple effect on federal and state sentencing systems nationwide.
Basic previews of Cunningham are available from summaries put together by folks at Cornell and at Medill. I have done more than a dozen posts about Cunningham that you can access at this archive, and broader coverage of Blakely in the states can be found in this archive. My posts with links to the briefs and other key reading about Cunningham can be accessed below:
Tracking reasonableness review outcomes ... final update?
EARLY FALL UPDATE: A new season has not changed the patterns spotlighted below; indeed, I believe September only brought reversals of below-guideline sentences as substantively unreasonable and affirmances of above-guideline sentences as substantively reasonable. The month did bring, however, this new post about these patterns.
ONE MORE UPDATE: I had hoped that by now others would be more systematically cataloging reasonableness review outcomes. But, not yet having seen other accounts like this one, I have now added some August developments to the list below.
END-OF-JULY UPDATE: With this update, I have now tracked reasonableness review outcomes long enough to conclude the basic patterns are well-established. In addition, I believe the Sentencing Commission and the Federal Judicial Center (and perhaps others) have assembled more comprehensive lists. Moreover, with so many non-guideline sentences now having been reviewed, it is time for folks to start developing more refined analyses of what's going on in all these cases. Consequently, I may no longer update this list on a monthly basis.
END-OF-JUNE UPDATE: Though the Sentencing Commission seems to have abandoned its monthly updating of post-Booker sentencing statistics, I am continuing my end-of-month updates of this list of reasonableness review outcomes.
ANOTHER UPDATE: Usually I wait until the end of a month to update my list of reasonableness outcomes in the circuits, but a lot of early June action (and a cite to this list in the Tenth Circuit's Cage opinion) prompts this mid-month update. As documented by the four added reversals of below-guideline sentences and five affirmances of above-guideline sentences, the reasonableness song remains the same.
BUMP AND UPDATE YET AGAIN: With May complete, I have updated yet again this list of post-Booker reasonableness rulings previously noted on the blog. Recall that this is not comprehensive (and I will happily post any similar list created through by other means sent my way).
BUMP AND UPDATE AGAIN: To celebrate the last work day of April, I have updated yet again my list of post-Booker reasonableness rulings previously noted on the blog. As I have noted before, this is certainly not comprehensive (and I would love to see and post any other lists anyone else has assembled).
BUMP AND UPDATE: To celebrate the end of March, I have updated my list of post-Booker reasonableness rulings previously noted on the blog. The list below is now current through the end of March (although it is certainly not comprehensive; I surely have missed some rulings).
Original prelude (3/3/2006): In this recent post, I reviewed Booker reasonableness review doctrines circuit-by-circuit. There and elsewhere I noted a disconcerting pattern: it seems all post-Booker within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, whereas many below-guideline sentences are being reversed as unreasonable. To further explore these realities, I have assembled below (in reverse chronological order) some reasonableness rulings previously noted on the blog.
Reversal of within-guideline sentence as unreasonable:
Affirmance of within-guideline sentence as reasonable: Far too many to list
Reversal of above-guideline sentence as unreasonable
Affirmance of above-guideline sentence as reasonable
- Zeigler (8th)
- Mohamed (9th)
- Ferguson (6th)
- Barton (6th)
- Howard (7th)
- Maurstad (8th)
- Meyer (8th)
- Chase (8th)
- Mack (8th)
- Youngbear (8th)
- Lyons (8th)
- Matheny (6th)
- Hacker (8th)
- Orlandez-Gamboa (2d)
- Donelson (8th)
- Valnor (11th)
- Dean Little Hawk (8th)
- Mix (9th)
- Jones (5th)
- Eldick (11th)
- Reinhart (5th)
- Porter (8th)
- Fairclough (2d)
- Smith (5th)
- Larrabee (8th)
- Jordan (7th)
- Winters (8th)
- Shannon (8th)
Reversal of below-guideline sentence as unreasonable
- Beal (8th)
- Likens (8th)
- Arevalo-Juarez (11th)
- McDonald (8th)
- Kahn (4th)
- Curry (4th)
- Guidry (5th)
- Portillo (8th)
- Wallace (7th)
- Castillo (2d)
- Davis (6th)
- Jointer (7th)
- Thurston (1st)
- Robinson (8th)
- Lee (8th)
- Martin (11th)
- Brown (8th)
- Crisp (11th)
- Perez-Pena (4th)
- Medearis (8th)
- Rattoballi (2d)
- Ture (8th)
- Cage (10th)
- Armendariz (5th)
- Rogers (8th)
- Desselle (5th)
- Gall (8th)
- Bradford (8th)
- Bryant (8th)
- McVay (11th)
- Bueno (8th)
- Givens (8th)
- Smith (1st)
- Pisman (7th)
- Goody (8th)
- Hampton (4th)
- Lazenby (8th)
- Rivera (8th)
- Myers (8th)
- Gatewood (8th)
- Shafer (8th)
- Claiborne (8th)
- Eura (4th)
- Moreland (4th)
- Duhon (5th)
- McMannus (8th) (two sentences reversed in opinion)
- Feemster (8th)
- Clark (4th)
- Pho (1st)
- Coyle (8th)
- Saenz (8th)
Affirmance of below-guideline sentence as reasonable
- Collington (6th)
- Jones (2d)
- Gray (11th)
- Krutsinger (8th)
- Halsema (11th)
- Baker (7th)
- Montgomery (11th)
- Williams (11th)
This list is by no means comprehensive: I typically focus only on published opinions in my blog coverage and there may be many notable reasonableness outcomes among unpublished opinions. Indeed, in putting this list together, I am surprised by how many opinions come from just a few circuits. (This is why, as I have stressed in prior posts here and here and here, it is critical for the US Sentencing Commission to produce data on post-Booker appeals and reasonableness review.)
But the basic point is pretty simple: the pattern of reasonableness review outcomes is quite telling.
ADDENDUM: A helpful reader has sensibly suggested that I note that the US Sentencing Commission's recent Booker report (available here) has a list of reasonableness rulings through mid-March on page 30. The USSC's list includes more rulings (e.g., it lists six below-guideline sentences affirmed, and five above-guideline sentences reversed), although I am not sure I concur with how the USSC codes some of the circuit decisions. Nevertheless, anyone following the reasonableness story ought also check out page 30 of the USSC Booker report.
October 8, 2006
Sentencing reading for the disappointed fan
If your favorite baseball team has made a hasty departure from the playoffs (as mine has), you can fill the resulting void with lots and lots of sentencing reading (as well as football and now hockey, of course). The first three entries on this reading list have been noted in recent posts, and the others have recently shown up on SSRN:
- Making Sentencing Sensible by Douglas A. Berman & Stephanos Bibas
- The Real (Sentencing) World: State Sentencing in the Post-Blakely Era by Douglas A. Berman & Steven L. Chanenson
- The Role of Moral Philosophers in the Competition Between Deontological and Empirical Desert by Paul H. Robinson
- Therapeutic Jurisprudence and Readiness for Rehabilitation by David B. Wexler
- Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure by Maximo Langer
- Rethinking Overcriminalization by Darryl K. Brown