October 11, 2006
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 A prime example comes from a summary order in the (unpublished) Second Circuit ruling in US v. Day, No. 05-4283 (2d Cir. Oct. 10, 2006) (available here).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