October 28, 2006
What's the latest with Booker in the circuits and districts?
The US Sentencing Commission, as revealed on this page, has not yet made public any post-Booker district court data since presenting cumulative quarterly data through close-of-business on June 30, 2006. I cannot help but wonder whether, with Booker circuit jurisprudence now pretty well-developed, district court sentencing patterns have had any distinctive features over the last four (unreported) months.
In addition, we are now approaching two full years since Booker, and there has now been a few thousand post-Booker sentences reviewed on appeal. I am hopeful (but not really optimistic) that the USSC might report some appellate statistics before too long.
Why isn't there a prior good works guideline?
Another high-profile case highlights yet again the import and impact of prior good works at sentencing. As this article details, in Connecticut yesterday, former Middletown mayor Stephen Gionfriddo received a below-guideline for stealing from clients because "Judge Christopher Droney credited Gionfriddo's 24 years of public service in deviating from the guideline." Even higher-profile recent sentencings — those of lawyer Lynne Stewart and Enron's Jeff Skilling — spotlight that, after Booker, some defendants are now getting huge breaks for prior good works, while others are getting no credit at all.
As I stressed when discussing my efforts for a defendant with nearly two decades of honorable military service, all structured sentencing systems have formal guidelines for enhancing sentences based on prior bad deeds through various (often intricate) criminal history enhancement. The federal sentencing guidelines, for example, devote all of Chapter 4 to regulating criminal history enhancements, and this chapter of guidelines runs more than 25 pages with lots of intricate rules about how prior crimes ought to enhance a sentence.
Doesn't it make sense to envision and develop guidelines for crediting prior good deeds through various (perhaps intricate) "good-deeds history" guidelines? To the extent some commentors rightly are concerned about disparity from encouraging judges to consider prior good deeds, the proper response is to develop guidelines, not to generally forbid consideration of this valid sentencing factor. (Critically, both retributivist and utilitarian theories of punishment would support the relevance of sentence reductions for, say, prior honorable military service or an impressive record of charitable service.)
So why hasn't the US Sentencing Commission ever developed guidelines for prior good deed reductions? I am not calling for a whole chapter on the topic (like the prior bad deed guidelines that comprise Chapter 4). But a few pages might be nice. And, especially given what we are seeing after Booker, this sort of guideline seems essential to foster greater consistency in sentencings nationwide.
October 27, 2006
Big Blakely retroactivity doings from Alaska
Continuing its amazing work as the Blakely frontier, today in Smart v. State, No. A-9025 (Alaska Ct. App. Oct. 27, 2006) (available here), the Alaska Court of Appeals issued an opinion regarding Blakely retroactivity. Here's a summary as reported to me by a helpful reader:
The court held that it was not bound by the federal Teague standard and was free to apply state retroactivity standards, and applying state retroactivity law found Blakely fully retroactive in a 97-page opinion (counting concurrences and dissents). The state will likely seek discretionary review from the Alaska Supreme Court.
UPDATE: I have now had a chance to give Smart a quick read, and the main opinion's exegesis of Teague is especially impressive and its citation to wikipedia is especially amusing. All the separate opinions are also great reads.
More crack attention at two decades
In addition to this NPR report, today brings other discussions of crack sentencing to "celebrate" the 20th anniversary of harsh federal mandatory minimum sentences for crack cocaine crimes. As detailed here, the Justice Roundtable held a Senate Staff Briefing on the topic.
Meanwhile, the American Civil Liberties Union today issued this sizable report entitled "Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law." The ACLU report stresses discriminatory effects of the harsh crack sentencing. Here is one of many telling nuggets from the report:
In 1986, before the enactment of federal mandatory minimum sentencing for crack cocaine offenses, the average federal drug sentence for African Americans was 11% higher than for whites. Four years later, the average federal drug sentence for African Americans was 49% higher.
Members of Congress like judicial discretion ... when their friends are sentenced
Peter Henning here spots an amazing story about the sentencing of former White House aide David Safavian, who lied to investigators aout his contacts with Jack Abramoff. As a Salt Lake City Tribune article explains, one of Safavian's former bosses, Representative Chris Cannon, has written a passionate letter to the sentencing judge urging a major downward variance in the sentence. Here is one especially notable passage from the letter:
As a member of the Judiciary Committee, I have personally struggled with sentencing issues, particularly post-Booker although certainly not to the extent you have. This episode has punctuated for me the importance of taking into account all facets of a person and the unique facts of each case, when determining what the proper and just punishment should be.
As Peter notes, the letter includes much discussion of Safavian's prior good works and family circumstances, and thus the sentencing philosophy "urged by Representative Cannon is almost the exact opposite of the Guidelines, which largely ignore 'all facets of a person and the unique facts of each case'."
This FoxNews piece suggests Safavian's sentence will be handed down this afternoon.
UPDATE: As detailed in articles here and here, Safavian was sentenced to 18 months in prison. And, during this sentencing, U.S. District Judge Paul L. Friedman apparently delivered "a 30-minute eulogy for good government in Washington."
Eighth Circuit reverses yet another below-guideline sentence
As regular readers know, there are no safe below-guideline sentences once they come before the Eighth Circuit. And today, in US v. Maloney, No. 05-3423 (8th Cir. Oct. 27, 2006) (available here), another one bites the dust.
To its credit, Maloney provides a much more thoughtful discussion of post-Booker sentencing and appellate review than many other Eighth Circuit reversals of district court judgments. But Maloney still reflects a troublesome commitment to rigid guideline-centric notions of uniformity trumping other sentencing values, as evidenced by this passage:
The district court thought that despite the magnitude of the variance, a term of 15 years' incarceration was sufficient to afford adequate deterrence, to provide just punishment, and to promote respect for the law. Accepting those propositions for the sake of argument, we believe the district court's analysis nonetheless gave insufficient weight to the statutory objective of avoiding unwarranted sentence disparities.
Sex offenders as our modern day witches
Norm Pattis at Crime & Federalism has this very strong post about sex offense sentencing which includes astute observation:
Sex offenses are in our time the new witchcraft. We're as hysterical about these crimes as were the good people of Salem over witches. And our means of addressing the hysteria is about as effective.
This time of year there is a particular irony in this analogy: next week we have a national holiday focused on kids that will celebrate witches and other scary things. But, as detailed in articles from New York and Tennessee and Texas and elsewhere all around the country, everyone is trying to keep sex offenders from participating.
Two decades of crack(ed) sentencing
NPR this morning had this fine audio segment on federal crack sentencing. Here is the NPR pitch:
Friday is the 20th anniversary of a law that created mandatory minimum sentences for crack cocaine crimes. The rules mandated far harsher sentences for people caught with crack cocaine than for those caught with powdered cocaine. Many say the sentencing disparity is unfair.
Some related posts on crack sentencing:
October 26, 2006
Around the blogosphere
Lots and lots of goodies around the blogosphere these days:
- At Crime & Consequences here, an interesting little item critical of drug courts
- At Conglomerate here, Christine Hurt asks "Is Defending Skilling Defending the Indefensible"
- At Corrections Sentencing here, a great post on "Budgeting and the Politics of Corrections Sentencing"
- At the Second Circuit Sentencing Blog here, a long post about a notable below-guideline sentence
- At TalkLeft here, an argument that being pro-life should mean being against the death penalty
My amicus effort to support our troops
Back in this post in April, I noted a story about the federal sentencing of Sergeant Patrick Lett, a defendant with 17 years of honorable Army service including two tours of duty in Iraq. There I asked whether a sentencing system that punishes prior bad deeds (via criminal history enhancements) ought also to reward prior good deeds through sentence reductions for, say, prior honorable military service. I suggested that, especially during a time of war, a sentence reduction based on honorable military service would tangibly recognize and reward service to our country.
Half a year later, a lot has happened in Patrick Lett's case. And, through a student, I have become indirectly and then more directly involved. Specifically, Lett ultimately received a below-guideline sentence (which allowed him to return to military service), but the Justice Department has appealed the reasonableness of his sentence to the Eleventh Circuit. Troubled greatly by DOJ decision to appeal and its overall treatment of Sergeant Lett, I have written and just filed (with the help of great folks at Holland & Knight) an amicus brief that assails the government's suggestion that Lett's sentence was unreasonable.
You can download the full amicus below, and here's perhaps my favorite passage:
Attorney General Alberto Gonzales during his confirmation hearings last year stressed that prison is best suited "for people who commit violent crimes and are career criminals." Gonzales also asserted that a focus on rehabilitation for "first-time, maybe sometimes second-time offenders ... is not only smart, ... it's the right thing to do;" in his words, "it is part of a compassionate society to give someone another chance." Similarly, President George W. Bush in his 2004 State of the Union Address spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance."
Judge Steele, in accord with these sentiments expressed by President Bush, Attorney General Gonzales, and Justice Department officials, obviously concluded that Patrick Lett deserved a second chance and that his non-violent first offense did not merit a long term of imprisonment. Given Lett's 17 years of honorable service to this country, which has included two life-threatening tours of duty on the Iraqi battlefields, it is hard to imagine an American more deserving of a second chance.
Sixth Circuit keeps Apprendi from state indictments
In an interesting habeas setting, the Sixth Circuit today in Williams v. Haviland, No. 05-3986 (6th Cir. Oct. 26, 2006) (available here), Sixth Circuit holds that Apprendi does not make the Fifth Amendment's grand jury right applicable to state criminal prosecutions. Here is how Judge Moore begins her thoughtful opinion:
This case requires us to consider whether Apprendi v. New Jersey, 530 U.S. 466 (2000), overturned the repeated holding of the Supreme Court, see, e.g., Rose v. Mitchell, 443 U.S. 545, 557 n.7 (1979), that the Fifth Amendment grand jury right, U.S. CONST. amend. V, was not incorporated by the Fourteenth Amendment, U.S. CONST. amend. XIV, and thus does not apply to state prosecutions. Relying on Apprendi, the district court granted Petitioner-Appellee Samuel Williams's habeas petition on the ground that the indictment was constitutionally deficient under the Fifth Amendment grand jury right and the Sixth Amendment jury trial and notice rights because it failed to specify one of the essential elements of the charged offenses — specifically, the mens rea requirement. The government appealed, arguing that the district court erred in relying on Apprendi because that decision did not address the sufficiency of the indictment nor did it extend the Fifth Amendment grand jury right to state prosecutions. Because we agree that Apprendi had no effect on the constitutional requirements for indictments utilized in state prosecutions, we REVERSE the grant of habeas relief and REMAND for the district court to consider the remainder of Williams's habeas petition.
Justice Talking progam on felony disenfranchisement
This week's topic on the NPR program Justice Talking was "Should Felons Have the Right to Vote?". Details and downloads are available at this link. Here is the pitch:
Currently, 4.7 million Americans are unable to vote due to state policies that bar convicted felons from the polls. In some states the ban is permanent despite the fact that the defendant may have served his or her time and been released from probation and parole. Last year the U.S. Supreme Court refused to hear a lawsuit from Florida challenging as unconstitutional felon disenfranchisement laws, but activists continue to push for reforms that will enable convicted felons to participate in the political process. Tune in to this edition of Justice Talking as we ask whether those who commit serious crimes should have the right to vote.
Some recent related posts:
Punitive damages and excessive punishment
Next week the Supreme Court will hear Philip Morris USA v. Williams, which is yet another challenge to a punitive damages award that a corporation complains is excessive. Today, in this great piece in the the New York Times, Adam Cohen astutely spotlights that the case will "reveal whether the court will continue on its current disturbing path of giving corporations more protection from excessive punishment than it gives to people." Here's a big part of the last section of Cohen's powerful commentary:
These rulings [in BWM and State Farm limiting punitive damages] are remarkably "activist" by all the traditional measures. They take a vaguely worded constitutional guarantee — that no one shall be deprived of property without "due process of law" — and translate it into a right that is not at all apparent from the words' plain meaning. They attempt to turn the guarantee into a precise mathematical formula. And they substitute the judges' worldview for that of elected officials. If Oregonians believe punitive damages are too high, their legislature can impose a legal cap.
These activist decisions, which give corporations valuable constitutional privileges, relied on the votes of conservative justices, who are supposedly skeptical of "judge-made" rights. Justices Sandra Day O’Connor and Anthony Kennedy provided key votes for BMW. Justice Kennedy wrote the State Farm "single-digit ratio" opinion, and Justice O'Connor and former Chief Justice William Rehnquist joined it.
The contrast with the court’s decisions on punishment of human wrongdoers is stark. In 2003, the court considered the sad case of Leandro Andrade, a father of three who was given a minimum of 50 years in prison under California's tough "three strikes" sentencing law, for shoplifting $153.53 worth of videotapes from Kmart. He argued that his prison term violated the Eighth Amendment. The Supreme Court — in a majority joined by Justices O'Connor and Kennedy and Chief Justice Rehnquist — could find nothing excessive in the punishment.
Based on the Constitution's words, Mr. Andrade certainly had a stronger case than BMW or State Farm. The Eighth Amendment expressly bars "cruel and unusual punishments," which might reasonably be interpreted to cover imprisoning a man from age 37 to 87 for stealing $153.53. The companies claimed only that the punitive damages awards violated their "due process" rights, a far greater textual stretch.
On the issue of what is "excessive" punishment, Mr. Andrade’s claim is also stronger. It is hard to see how it is excessive to make Philip Morris, whose market capitalization is $166 billion, pay a mere $79.5 million for "extraordinarily reprehensive" and lethal conduct, but not excessive to make Mr. Andrade spend what is likely to be the entire second half of his life in prison for a petty theft.
The question of whether there should be constitutional limits on punitive damages has proved difficult to resolve, and it has caused divisions in both the court’s liberal and conservative blocs. (It is one of the very few issues in which John Paul Stevens votes with corporations and Antonin Scalia votes against them.) Whatever the court decides, it should develop a constitutional theory of excessive punishment that covers human and corporate wrongdoers equally, as the Duke Law School Professor Erwin Chemerinsky and others have urged.
The current doctrines make no sense, least of all by the standards of conservative constitutional interpretation. Conservatives like to talk about the "framers' intent." The framers were deeply concerned about excessive punishment, and set forth their views on it in the Eighth Amendment. They would be perplexed that the high court they created believes their Constitution permits a father to remain in jail for 50 years for petty theft, but does not tolerate taking a fraction of the wealth from a company that kills people.
Busy times for state killing
As this AP story details, both Florida and Texas conducted lethal injection executions Wednesday night: "Florida executed an infamous serial killer just hours before Texas put to death a man convicted in the stabbing deaths of his parents and an uncle." Greg Summers was the 22nd inmate executed this year in Texas, and Danny Rolling was Florida's 3rd inmate to be executed this year.
In addition, as detailed here, Ohio on Tuesday executed a cult leader who killed a family, and Alabama is scheduled to execute another murderer tonight (details here). If Alabama's execution is not halted, we will have four states carrying out a total of four executions in less than three days. The last comparable period of executions was in early December 2002, when six states carried out a total of nine executions in just over a week.
As regular readers know, these other blogs are go-to places for lots of capital coverage:
October 25, 2006
New mandatory minimum report about PA state judges
Over at the FAMM website, I just saw a notable new report about mandatory minimum sentencing entitled "'We're Supposed to Sentence Individuals, Not Crimes' — A Survey of Commonwealth of Pennsylvania Court of Common Pleas Judges on Mandatory Minimum Sentencing Statutes." This report, which was authored by a senior state judge and a California academic and can be accessed here, provides a lot of background on the long-standing debate over mandatory sentencing terms, in addition to examining "the experiences and attitudes of sentencing judges regarding MMSS in one state, the Commonwealth of Pennsylvania." Here are snippets from the conclusion:
The purpose of this study was to examine the opinions and experiences of sentencing judges in Pennsylvania with mandatory minimum sentencing statutes. The result of the study is clear: most of Pennsylvania's sentencing judges do not favor mandatory minimum sentencing statutes....
When the judge is statutorily precluded from considering some factors that may be critical to obtaining a "just" result, he or she cannot weigh and balance all interests involved. This weighing-and-balancing process is the essence of judgment and gives it legitimacy.
Perfection, like justice, is an elusive but worthy goal. Reducing crime is a fundamental public interest. But by seeking to reduce crime in general by requiring the imposition of mandatory sentences on individuals, legislators pursue the interest of crime reduction with a policy that is ineffective in reducing crime and at the same time impedes the pursuit of justice.
Is failing to report to jail a violent felony?
I have discussed before here and here the Kafkaesque reality that, in the federal system, prior state offenses like evasive driving can qualify as violent crimes to trigger severe sentence enhancements. Today's new Kafka chapter in this criminal history story comes from the Seventh Circuit: a split panel decided in US v. Golden, No. 06-1362 (7th Cir. Oct. 25, 2006) (available here), that a defendant's prior "failure to report to county jail in violation of the Wisconsin Criminal Code" qualifies as a "violent felony" to trigger a mandatory minimum sentence of 15 years' imprisonment under the armed criminal career statute, 18 U.S.C. § 924(e).
Golden is a fascinating read, in part because all three judges on the panel author opinions. Judge Williams, writing in dissent, has this closing thought:
No layman would anticipate that "failure to report to jail," as that crime is defined in Wisconsin, would trigger a recidivist statute that punishes those guilty of committing multiple violent felonies. While that fact is not dispositive in our inquiry, it should trigger some alarm with regard to the distance our interpretation of section 924 has traveled from "language that the common world" would understand. For these reasons, I respectfully dissent.
Crime, sentencing and politics
With less than two weeks to Election Day, I have been pleasantly surprised that we've not seen much "tough-on-crime" electioneering at the federal level. A widely reported up-tick in some violent crime this year could have made crime a ripe issue for national politicians. But this measured and thoughtful speech by AG Gonzales suggests that national leaders are perhaps actively trying to avoid making crime and sentencing a hot political issues at the federal level.
Given the salience of crime as a political issue over the last 30+ years, sociologists and political scientists ought to be looking closely at why the crime issue has generally receded from the national political scene. Is this a 9/11 echo, which makes everyone view the war on terror as much more important than a war on drugs or other street crime? Is it the fact that, these days, many of highest-profile criminal bad guys are rich, white executives and politicians? Are there other social and legal forces in play?
Whatever the story at the federal level, the story at the state level is different. This morning I saw a political TV ad attacking a state candidate for having a "liberal plan" that would prevent a killer's execution. And this story from Indiana documents a concerted state GOP effort to make crime a political issue. Here is a snippet:
House Republicans revealed the latest of their months-long trail of campaign pledges Tuesday when they promised to keep violent offenders in prison for at least 85 percent of their sentences. Indiana law allows inmates to earn "good-time credit" for every day served, which automatically cuts any sentence in half....
Indiana is one of only four states to have a 50-percent good-time requirement. Federal sentences require inmates to serve 85 percent of their sentence, and at least 29 other states meet the federally recognized 85 percent rule, according to a Bureau of Justice Statistics report....
Indiana Department of Correction Commissioner David Donahue told The Journal Gazette in May that there is a cost to changing the system and that taxpayers would have to pony up money to build more jails and prisons.... Bosma had no cost estimate for the initiative nor for any of the other five crime-related promises made Tuesday.... Bosma also had no cumulative cost of other programs and changes he and his colleagues have endorsed in recent months, but he was confident the state could afford them as part of normal revenue growth.
On Vonner, the en banc Sixth Circuit reasonableness case
As discussed here and here, the Sixth Circuit has granted en banc review in Vonner to explore the circuit's approach to post-Booker reasonableness review. Today, the Knoxville News Sentinel has this excellent article providing the back story of the case and post-Booker sentencing. Here is a snippet:
Killer. Cocaine dealer. Legal revolutionary? Knoxville bad boy Alvin Vonner may not have set out to shape the federal sentencing landscape in four states, including Tennessee, and maybe even the nation. But he is poised to do just that. The 6th U.S. Circuit Court of Appeals in Cincinnati has granted the granddaddy of all appeals hearings — the rare "en banc" rehearing in which the entire panel will hear and decide the case....
Vonner's case, though on paper only about the reasonableness of his 117-month prison term for dealing drugs in Knoxville, could set the course for sentencing decisions for every federal criminal in the circuit and, perhaps, the nation. "They could rock our whole world," Vonner's defense attorney, Stephen Ross Johnson, noted. "They could just tweak our world."...
The landmark Supreme Court ruling, known as the Booker decision, gave judges newfound freedom to determine punishment but left wide open exactly how that freedom was to be exercised. Judges still had to "consider" the guidelines, but how much weight should they give them? Is it "reasonable" for a judge to stick to the guidelines? Does a sentence within the guidelines range carry more weight? And what exactly is the test that appellate courts like the 6th Circuit should apply in deciding if a sentence was "reasonable?" ...
Assistant U.S. Attorney Charles Atchley sought the en banc hearing in Vonner's case. His boss, U.S. Attorney Russ Dedrick, said: "We think it's a precedent-setting case. We'd like to get the law clarified." Johnson agreed. "I think en banc consideration is a good thing," he said. "It will help provide clarification for the district courts."
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
October 24, 2006
More Skilling reactions and a query
Those interested in more post-game analysis of the Skilling sentence should be sure to check out Tom Kirkendall's analysis here and also the Houston Chronicle's cool extended podcast with expert commentary from an assortment of thoughtful experts.
The Houston Chronicle's podcast is really intriguing from start to finish, and it begins with lots of praise for Skilling's lawyers for keeping his sentence from being even higher than 24+ years. I would like to hear from readers whether they agree with this assessment.
Thanks to this post at How Appealing, I see that the federal sentencing system is about to render some more swift and certain federal sentencing justice on another set of hardened criminals — namely, three nuns convicted of hurting national defense when they protested U.S. nuclear policies at a missile silo. Here are more details from this story in the Denver Post:
Since submitting the plans to do community-service work in lieu of paying restitution, the nuns say they've continued work to help the poor and promote peace that they began in prison. They figure they've done more than 148 years of combined community service, including counseling inmates and raising $600,000 in charitable contributions for literacy programs, soup kitchens and aid for victims of disasters.
They asked [US District Court Judge Robert] Blackburn whether they could continue that work rather than paying the Air Force for the damage they did to the site of the silo. The three were convicted in 2003 of obstructing national defense and damaging government property. During a protest rally in 2002, they cut through a chain-link fence at a silo northeast of Denver that contained a Minuteman III missile. Platte received a 41-month sentence and was released last December. Hudson served 30 months, and Gilbert served 33 months — in different prisons.
Blackburn decided not to accept their plans "after careful consideration" of the proposals "and the government's response," he said in an order dated Oct. 18. Federal prosecutors have insisted that the nuns make amends directly to the Air Force.
Someone should be sure to tell all the Whoopi Goldberg fans pining for Sister Act 3 that we may now have the perfect script in development. (But, of course, Whoopi fans know it would be hard for any script to live up to Sister Act 2.)