November 4, 2006
Soliciting lightning-round commentary on reasonableness for FSR
The Federal Sentencing Reporter has already published a number of pieces about reasonableness review after Booker (see list here). But the Supreme Court's cert grants in Claiborne and Rita (basics here and here) bring this debate to a whole new level. And, fortunately, FSR may be able to clear out a little extra room in its December issue for some lightning fast — but still thoughtful and refined — commentary on reasonableness review after Booker.
To have a real chance of appearing in FSR's December issue, commentaries on Claiborne and Rita would need to be submitted before Thanksgiving — ideally, well before — and would need to be very polished so we could get it quickly to press.
A new world of death penalty politics?
As detailed in this local article, a debate yesterday in the closely watched Maryland Senate race spotlighted a modern twist in the politics of the death penalty: a republican candidate criticizing the democratic candidate for not being against the death penalty. Here are some highlights:
Differences among the three U.S. Senate candidates were most pointed when talking about the death penalty Friday in ... the debate among Republican Lt. Gov. Michael Steele, tri-party candidate Kevin Zeese and Democrat Rep. Ben Cardin.
Both Zeese and Steele said they opposed the death penalty. Cardin said capital punishment should be applied only for "the worst of the worst," and criticized Steele for failing to review the state's use of the death penalty as he was supposed to do....
Steele hit back, questioning Cardin's vote against a bill that would have allowed Death Row convicts to use DNA evidence to prove their innocence.... "I am against the death penalty for a lot of good reasons, moral and ethical, but also for a lot of legal reasons," Steele, a former Catholic seminarian, said. He said that if the sanction should be applied, it should not make a difference where the crime was committed. "That is the system we have right now, and there is no fairness in that," he said. "It's only injustice."
Media coverage SCOTUS reasonableness grants
For media coverage of the Supreme Court's cert grants in Claiborne and Rita you can choose from this AP story and this New York Times story. Here is a snippet from Linda Greenhouse's piece, which includes some more details about the cases:
While there was no suggestion in the court’s action on Friday that the Booker decision itself would be reconsidered, there remains much room for debate over how it should be applied.
Each of the appeals was brought to the Supreme Court by a federal public defender’s office. The defendant in the first case, from North Carolina, is a 57-year-old retired marine named Victor A. Rita Jr., who was convicted of making false statements in connection with a federal investigation into the sale of kits for making machine guns. While Mr. Rita’s sentence, 33 months, was within the range provided by the sentencing guidelines, he argued on appeal to the United States Court of Appeals for the Fourth Circuit that the sentence was unreasonably long, given his poor health and unblemished record of federal service, both as a marine and in two civilian agencies....
The defendant in the second case the court accepted on Friday is a 21-year-old first offender, Mario Claiborne, who was convicted in Federal District Court in St. Louis of possessing a small quantity of crack cocaine. Mr. Claiborne’s lawyer persuaded the trial judge to impose a sentence of only 15 months, sharply lower than the guidelines range of 37 to 46 months. The United States Court of Appeals for the Eighth Circuit, also in St. Louis, overturned the sentence and ordered resentencing, which has not yet taken place. The Eighth Circuit is among the appeals courts that regard deviations from the guidelines as inherently dubious, requiring special justification.
In complimenting Linda Greenhouse for a terrific article about these new grants, I cannot help but note that about a month ago Linda said when visiting OSU that she doubted that the Supreme Court would take up Booker issues anytime soon.
November 3, 2006
The facts and decisions in Claiborne and Rita
Among the interesting aspects of the cert grants in Claiborne and Rita are the underlying facts and circuit court rulings. Though I do not know all the details, Lyle Denniston has these basics here:
The Claiborne case is from the Eighth Circuit. [Decision here.] Mario Claiborne of St. Louis was convicted of distributing cocaine base and possession of more than five grams of the illegal substance. He was sentenced to 15 months in prison. The guideline range was 37 to 46 months. The Circuit Court ruled that a sentence within that range was presumed to be reasonable so it ordered new sentencing. It did say that a sentence outside the range could be found reasonable if the judge found "extraordinary circumstances" to exist.
Rita is from the Fourth Circuit. [Decision here.] It involved a North Carolina man, Victor A. Rita, who was convicted of giving false testimony to a grand jury and obstructing justice in an investigation of illegal trafficking in machine gun kits. After his conviction on five counts, he was sentenced to 33 months on all counts -- within the guideline range. The Fourth Circuit upheld that as reasonable, because it was within the range for his case.
Among the universe of federal crimes, both Claiborne and Rita appear to involve relatively minor offenses and, I would suspect, both defendants are first-offenders. And, the crack context of Claiborne adds a lot of possible pro-defendant issues into the mix. Moreover, I believe defendant Rita's offenses are for the same essential charges now facing Lewis "Scooter" Libby. Hmmm....
How do Cunningham and Claiborne and Rita intersect?
As detailed here and here, last month's SCOTUS argument in Cunningham, which was technically about Blakely's applicability in California, ended up being a lot about reasonableness and federal sentencing. In light of today's cert grants in Claiborne and Rita, I am trying to think through the relationships between what (and when) the Court will do with Cunningham.
It seems that the Claiborne and Rita argument won't be until February, but the top-side briefs are due in December. I have been expecting to see Cunningham decided sometime in January, but now I wonder if its likely to come soon (or come later) because of Claiborne and Rita. I am pretty confident (and happy) that the cert grants in Claiborne and Rita should limit the need to (over)interpret the meaning of Cunningham for the federal sentencing system.
How many amici briefs will there be in Claiborneand Rita?
One of the many interesting facets of Booker was the expedited briefing schedule during summer 2004, which likely depressed the number of amicus briefs filed. Still, I believe there were six significant amicus briefs, including one from the US Sentencing Commission, one from a set of Senators, one from a retired federal judge and a number from defender groups.
With a more reasonable briefing timeline on reasonableness in Claiborne and Rita, I suspect there may be a lot more amicus brief for SCOTUS to
ignore consider. I will place the early over/under for amicus briefs at 10. There will surely be at least 3 or 4 defense side amicus, and the US Sentencing Commission seems likely to file one. Also, because Claiborne is a crack case and Rita may be a white-collar case (more on this later), there may be a lot of additional amici interested in discussing the underlying substance of the crimes and sentences through which SCOTUS will be exploring reasonableness.
SCOTUS Booker questions presented ... and more questions
With its cert grants in Claiborne and Rita (basics here), the Supreme Court is taking the Booker reasonableness bull by the horns. As detailed in this order list, SCOTUS has specified the questions presented in each case to ensure all of the biggest post-Booker reasonableness issues are addressed.
In Claiborne, the Court asks:
- Was the district court's choice of below-Guidelines sentence reasonable?
- In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?
In Rita, the Court asks:
- Was the district court's choice of within-Guidelines sentence reasonable?
- In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to accord a presumption of reasonableness to within-Guidelines sentences?
- If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. §3553(a) factors and any other factors that might justify a lesser sentence?
My mind is racing with this news and all of the different possible ripple effects. In particular, I am wondering how the grants in Claiborne and Rita will impact (a) the reasonableness en banc in progress in the Sixth and Ninth Circuits, (b) the development of reasonableness doctrines in other circuits, (c) the work of the US Sentencing Commission, and (d) the adovacy of DOJ for a Booker fix.
SCOTUS to take up Booker reasonableness!!
I have been predicting that the Supreme Court would have to take up a Booker reasonableness case before too long, and today that prediction became a reality. Lyle Denniston has the highlights of this exciting news here:
The Supreme Court agreed on Friday to decide whether a criminal sentence that is within the federal guidelines is to be treated as reasonable, and thus valid. It also said it would rule on whether a sentence below the guideline range is reasonable. It accepted for review two cases on an issue that has led to a multitude of rulings in lower courts, producing a conflict at least on key aspects of that question.
The Court will hear Claiborne v. U.S. (06-5618) and Rita v. U.S. (06-5754), with oral argument probably in February. In Claiborne, the Court will examine whether a sentence below the guideline range is reasonable, and whether a sentence that varies substantially from the guidelines can only be imposed in extraordinary situations. In Rita, it will decide whether a sentence within the range is reasonable, whether such a sentence may be presumed to be reasonable, and whether such a sentence may be imposed without full analysis by the judge of factors that might justify a lesser sentence.
WOWSA! I will do some digging about the details of Claiborne and Rita and report more in forthcoming posts.
The post-Blakely story in Tennessee
A helpful reader pointed me to this official website from Tennessee, which provides information about the state of that's state sentencing world in the wake of Blakely. Here is the site's explanation of what it provides:
Pursuant to TCA §40-35-210(6)(b), the Administrative Office of the Courts is to provide statistical information as to sentencing practices for similar offenses in Tennessee. The provided statistics are meant as an advisory guideline in sentencing. The addition of advisory guidelines was established in the Criminal Sentencing Reform Act of 2005, which was brought about following the U.S. Supreme Court ruling in Blakely v. Washington, 124 S.Ct. 2531 (2004).
After the Blakely ruling, Governor Phil Bredesen established the Task Force on the Use of Enhancement Factors in Criminal Sentencing. The Task Force was charged with recommending changes to remove the constitutional infirmities of Tennessee's sentencing statutes. Upon doing so, the Task Force was further charged with monitoring the impact the 2005 Reform Act has on Tennessee's criminal justice system. Tennessee sentencing statistics and Task Force reports are available on this website.
The site includes links to this Annual Report for 2006 and lots of state sentencing statistics.
Recent related posts on Blakely in the States:
Another corporate executive gets a below-guideline sentence
As is often true in cases with rich facts, there are many ways to assess the sentence of 12 years' imprisonment given yesterday to Sanjay Kumar, the former chief executive of Computer Associates International, for orchestrating a multi-billion dollar accounting fraud and then obstructing justice. Details about the interesting case and the sentencing are available from the Wall Street Journal and the New York Times and the AP.
According to the WSJ report, it appears that Kumar's guideline range suggested a life sentence, despite the fact that Kumar pleaded guilty and seemed to accept responsibility. But apparently Kumar received a significant downward variance:
Judge Glasser said that under federal sentencing guidelines he could have given Mr. Kumar a lifetime sentence. But he said such a long sentence would "shock the conscience of this court." Sentencing factors included the eight-count indictment to which he pleaded guilty and the economic harm of his actions, which Judge Glasser said exceeded $400 million.
According to the New York Times account, "Judge Glasser said that federal sentencing guidelines did not permit him to consider charity work in determining punishment." This is arguably accurate, but charity work would surely be a permissible sentencing consideration after Booker, and my sense is that Kumar's past good deeds did influence the extent of his variance to some extent. (See a recent robust debate here about whether there should be a prior good works guideline.)
The Wall Street Journal has this companion chart detailing prison terms recently handed out to many high-profile white-collar offenders. I believe that every one of these offenders sentenced in federal court received a below-guideline sentence except for Jeff Skilling.
Seventh Circuit suggests guideline sentence too low
The Seventh Circuit, per Judge Easterbrook, in US v. Elliot, No. 05-4523 (7th Cir. Nov. 2, 2006) (available here), accepts a defendant's argument that the district court at sentencing improperly applied an enhancement for obstruction of justice. Thereafter, the court explains at length why it views the applicable guideline sentence as too lenient. Here are some notable passages from Elliot:
Because the district judge miscalculated the Guideline range, which he used as a starting point, the error may have affected Elliott's sentence, and we must remand. This does not imply, however, that a sentence of 21 months is unreasonably high; to the contrary, it strikes us as unreasonably low, and United States v. Booker, 543 U.S. 220 (2005), gives the district court ample authority to impose an appropriate sentence on remand.
Guideline 2J1.6 does not take into account the duration of the flight from justice. How long the fugitive remains on the lam is vital to assessing the deterrent effect of a sentence, so 18 U.S.C. §3553(a)(2)(B), which comes to the fore after Booker, requires the district court to give this subject close attention. If Elliott had been caught by the end of October 1989, then tacking 21 months on to his 60-month sentence might well have provided appropriate deterrence and desert. But he remained at liberty for almost 15 years, which substantially eroded the deterrent force of his 60-month sentence....
Under Booker the district judge, not the appellate tribunal, is principally responsible for selecting a reasonable sentence. But defendants often suppose that Booker means "lower sentences" rather than "sentences selected with greater discretion from the statutory range." Booker does not require lower sentences; nor does a conclusion that the district court erred in calculating the Guideline range. More discretion can produce higher sentences as well as lower ones. Whether this is one of the cases in which the sentence should rise is for the district court in the first instance.
Elliot provides a thoughtful exploration of a § 3553(a)(2) factor and notices that the guideline in this case misses a relevant consideration. One would hope that cases like Elliot would help the Seventh Circuit (and other circuits) recognize problems with affording the guidelines a blanket presumption of reasonableness. But I am not holding my breath.
November 2, 2006
A proper case for shaming?
I wonder what Dan Markel and other prominent critics of shaming sanctions will think of this sentencing story from Florida:
Once he gets out of jail, a Sorrento man convicted of DUI-manslaughter will spend the next six years attending Alcoholics Anonymous meetings twice a week and telling everyone there, "My name is Hal, and I killed a man driving drunk." That was part of the sentence handed down Wednesday to Haldon M. Tompkins, 60, who on Nov. 20, 2004, pulled away from a stop sign and into the path of Osvaldo Valladares, 43, of Eustis.
The collision killed Valladares and left Tompkins with a broken jaw. Blood tests showed that Valladares was more drunk than Tompkins, and the state trooper who investigated the crash concluded that if Valladares hadn't been driving nearly 20 mph above the speed limit, there would have been no crash. Still, jurors on Sept. 22 convicted Tompkins.
On Wednesday, Circuit Judge Clayton Simmons handed down a lenient sentence. He could have sent Tompkins to prison for 10 to 15 years, as sentencing guidelines suggested. Instead, the judge ordered Tompkins to jail for a year, followed by a year of house arrest and then five years of probation. During those six years, the judge ordered Tompkins to go to AA meetings twice a week and, at each one, to introduce himself as a drunk driver who had killed a man.
Would Dan and others imposed to shaming sanctions have thought a 10 year imprisonment sentence would be more appropriate and just in this case? Would it have better served human dignity?
Some recent related posts on shaming:
The dominance of loss in white-collar sentencing
I am about to head into a day talking about ways to simplify the federal guidelines, and I suspect that "loss" will be a topic of much discussion. Coincidentally, BusinessWeek has this good primer on how these issues play out in white-collar sentencings. Here is a snippet:
The sentencing process for white-collar criminals today has as much to do with money, i.e., investor losses, as with other factors such as remorse, community standing, or prospects for rehabilitation. Under guidelines adopted in the post-Enron crackdown, the amount of financial havoc wreaked by a rogue executive figures prominently into his or her sentence.
Moreover, when the fraud stretches into the billions, as at Enron, Worldcom, and HealthSouth (HLS), the sentences rise to a duration that makes many legal experts question whether the justice system is shifting the role of deterrence into the realm of overkill.
November 1, 2006
Around the blogosphere
Here is more proof I am the ultimate law geek: after a fascinating day in DC discussing the criminal history rules of the federal guidelines, I am winding down with a tour around the legal blogosphere. And, as often happens, there is a lot worth checking out:
- Grits for Breakfast here thoughtfully wonders why Texas's recedivism rates are so low.
- SCOTUSblog here has a terrific report on today's argument over Crawford retroactivity.
- How Appealing here reports on the latest Sixth Circuit death penalty debate.
- Law Librarian Blog here discusses a great new book by Travis McDade "about a rare book crime and the unique federal sentence that stemmed from it."
UPDATE: The NY Times has this article about the Sixth Circuit death penalty case noted by How Appealing.
Exciting times at the USSC
I am off-line most of the next two days while in DC to participate in a set of exciting roundtables at the US Sentencing Commission to discuss possible ways to simplify the federal sentencing guidelines and to modify the intricate criminal history guidelines. I think these sorts of brainstorming sessions are a great idea, and I am grateful that the USSC has included me in this worthwhile endeavor.
In other exciting USSC news, the Commission has now scheduled for later this month a Public Hearing titled "Cocaine and Federal Sentencing Policy -- 2006." According to a USSC press release, the Commission plans to "hear from representatives of law enforcement, the legal community, the judiciary, interested community groups, and the scientific community to address issues associated with federal cocaine sentencing policy" all day on Tuesday, November 14, 2006 at the Georgetown University Law Center. I expect there will be more information on the USSC website as this important hearing approaches.
Cooperation and the right to trial
Ellen Podgor of the White Collar Crime Prof Blog has this new commentary at law.com entitled, "Do Cooperation Agreements Diminish the Right to a Jury Trial in White-Collar Cases?". Here is a taste:
The disparity in sentences between cooperators and those opting for a trial is a function of sentencing guidelines, which can dictate whether an accused receives what is essentially a life or death sentence. It is also a function of prosecutors who leverage the enormous consequence of a jury trial against a reasonable sentence for providing cooperation.
The government needs cooperators to make their cases. Cooperators also provide a more efficient system that reduces the costs for a government prosecution. But when the risk of a conviction after trial is so distinct from that received for cooperating with the government, it diminishes the right to a trial by jury, an essential part of our constitutional democracy.
Justice Byron White, in the famed case of Duncan v. Louisiana, 391 U.S. 145 (1968) noted the importance of this right when he stated that "the right to trial by jury is granted to criminal defendants in order to prevent oppression by the government." Id. at 155. We have to wonder whether this right is fully realized when so many individual defendants and companies are folding to government demands because of the high risk entailed in proceeding to trial.
Death penalty reforms in China
As detailed in this New York Times article, China has altered its appellate review procedures for death sentences:
Responding to domestic and international criticism of its extensive use of capital punishment, China adopted new rules on Tuesday requiring review of all death sentences by the Supreme People’s Court, state news media reported.... The authorities are facing mounting criticism from human rights groups and Chinese legal scholars for what they say is the widespread and arbitrary use of the death penalty.
China executes more people every year than all other nations combined, by some Chinese estimates, up to 10,000 a year. Chinese courts have been embarrassed in recent years by a number of executions of people who were later proved innocent.
China’s legislature, the National People’s Congress, approved the amendment to the law, which “is believed to be the most important reform of capital punishment in China in more than two decades,” the official New China News Agency said in a brief report. The state news media have estimated that the number of executions could drop by as much as 30 percent under the new system, though they have not said how they arrived at that figure....
Local courts had been given the power to impose the death penalty by Deng Xiaoping, who was angry about a wave of crime and corruption that threatened his economic reform program, which was still in its infancy. From the early 1980s until now, they have operated with virtually no oversight, a situation that has led to the widespread and, legal experts say, indiscriminate use of capital punishment.... Some Chinese legal scholars say lower courts will now have to be more careful in imposing the death penalty, handing down more long prison terms instead to avoid the scrutiny of the high court.
October 31, 2006
Priest gets top of guideline range for downloading child porn
A recent federal sentencing of a priest in Chicago adds another potential spin to the debate over whether past good deeds should lead to a sentence reduction (recently debated here and here) Here are details from this article:
Roman Catholic priest caught with violent child pornography was sentenced Tuesday to more than seven years in prison by a federal judge who said that she could "not help but be appalled."... "He has victimized young children, possibly scarring them for life," [Judge Blanche] Manning said, giving [Rev. Daniel] Schulte the maximum under federal guidelines. "The court cannot help but be appalled."
In a quiet voice, Schulte said that he was sorry about "the children whose innocence I've stolen by downloading child pornography" and apologized for "the embarrassment and scandal I've caused for others." His attorney, Patrick Cotter, pleaded with Manning to show mercy, saying Schulte had never been accused of directly touching any children but merely of downloading pornographic images of children on his computer.
Cotter said his client had been sexually abused himself as a child and had tried hard to overcome his obsession. "He is trying somehow to confront the demons that are inside him and that led him into this horrific behavior," Cotter said. He said that since his fellow priests discovered his pornography collection, Schulte had been "in therapy seven days a week for hours and hours every single day."
Can procedural injustice produce substantive justice?
An interesting state sentencing case reported in this article from Utah highlights the uncertain relationship between procedural and substantive sentencing justice. Here are the basics:
Authorities are investigating whether a controversial Utah judge secretly knocked 10 years off a sex offender's prison sentence. Third District Judge Leslie Lewis allegedly had an ex parte (one side only) conversation with a defense attorney and subsequently reduced his client's sentence by 10 years without consulting prosecutors....
Defense attorney Roger Kraft said it all began with a bad day he had in Lewis' courtroom on Feb. 10. Kraft was before Lewis for the sentencing of his client, 46-year-old James Robert Scott, who had pleaded guilty to three counts of sodomy on a child.... Lewis ordered Scott — who had sexually abused a 7-year-old girl — to serve 30 years to life in prison by running three 10-to-life terms consecutively. Prosecutors had asked for 30 years to life, but a pre-sentence report recommended 15 to life.
Back at his office after the sentencing, Kraft penned a letter to Lewis to vent his frustration. "It is my job to argue BEFORE the court and not WITH the court," Kraft wrote. A month later, on March 15, Kraft got a phone call from Lewis, who offered an apology. "She said she went back and watched the video [of the hearing] and said I was 90 percent correct in my letter," Kraft said. Kraft said his letter did not ask Lewis to reduce Scott's sentence. But during their phone conversation, Kraft said he told the judge, "I'm hoping our [courtroom] banter didn't cost my client an additional five or 10 years." After Kraft reminded her of the stiff sentence, Lewis said, "If I still have jurisdiction, I'm going to change that," according to Kraft.
Offering to reduce Scott's sentence by 10 years, Lewis promised to send Kraft documentation of the change, he said. Then Lewis said something that turned Kraft's pleasure to discomfort. ''She said, 'I would appreciate it if you don't discuss this with the prosecutor,' " Kraft recalled. ''She said it at least two, and maybe three, times.''...
The article continues to explain that Judge Lewis doctored the docket in order to change the defendant's sentence to 20 years' imprisonment without telling anyone, and that the defense attorney reported the change when he found out about it months later.
There are many interesting facets of this case, including the fact that Judge Lewis has gotten in trouble for other courtroom behavior and is facing a retention election. What may get lost in the commotion, however, is that even the reduced sentence of 20 years was five years longer than what the pre-sentence report recommended. Though there seems to have been lots of procedural injustice in this case, was substantive justice perhaps ultimately served?
Sixth Circuit continues sparring over reasonableness review
In Vonner (discussed here and here and here), the Sixth Circuit has decided to consider en banc its approach to post-Booker reasonableness review. But that pending action has not yet stopped the Circuit's internal bickering over sentencing appeals as evidenced by today's ruling in US v. Johnson, No. 05-6309 (6th Cir. Oct. 31, 2006) (available here). In Johnson , the majority concludes that a within-guideline sentence was not "procedurally reasonable under Booker," while the dissent laments a ruling that "engage[s] the trial court in the futile exercise of marching up the sentencing hill again, only to hand down the same sentence and march back down."
Here is a key passage from Johnson that should warm the heart of anyone troubled by the tendency of many courts to adopt a guideline-centric approach to sentencing after Booker:
We find persuasive Defendant's argument that the district court failed to consider the other § 3553 factors, and sentenced him solely on the basis of the Guidelines. Despite the fact that the district court expressly acknowledged that the Guidelines are now advisory, and that the Guidelines are only one factor that should be considered, the district court failed to state on the record that it was considering any of the other § 3553 factors. In fact, the district court provides no indication at all of why it felt that Defendant's sentence was appropriate, other than to state that it was appropriate under the Guidelines. While it is true that the district court is not required to explicitly go through each sentencing factor, the district court is required to provide this Court with some evidence on the record that the § 3553(a) factors were considered.