December 9, 2006
Fascinating Florida re-entry report
In February 2005 through this executive order, Florida Governor Jeb Bush created an Ex-Offender Taskforce "to help improve the effectiveness of the State of Florida in facilitating the re-entry of ex-offenders into their communities so as to reduce the incidence of recidivism." This Taskforce has recently released this final report, which has 15 detailed recommendations designed to address reentry issues.
The report is a very interesting read, and the bulk of the recommendations come under the heading "The Prison Experience: Successful Reentry Must Start at Prison Entry." Here are the four highest priorities identified by the Taskforce under this heading:
1. The [Florida Department of Corrections (FDC)] mission statement should be revised to explicitly address successful reentry. To assess performance in achieving the goal of successful reentry, performance measures should be adopted for FDC, its facilities, and wardens and staff.
2. A minimum of six more facilities should be transformed into faith and character-based facilities with three completed by December 31, 2007 and three more by December 31, 2008....
6. FDC should improve and expand job training through the maximization of third-party resources....
9. FDC should begin pre-release planning with inmates starting on their first day of incarceration and develop individualized reentry plan for each inmates....
Should Weldon Angelos get a rare commutation?
The Washington Post today has this notable editorial entitled "Commute This Sentence: A clemency case not even President Bush can ignore -- or can he?" Here are highlights:
The Supreme Court this week declined to review the case of Weldon Angelos, leaving in place his obscene sentence of 55 years in prison for small-time marijuana and gun charges. The high court's move is no surprise; the justices have tended to uphold draconian sentences against constitutional challenge. But it confronts President Bush with a question he will have to address: Is there any sentence so unfair that he would exert himself to correct it?
So far, Mr. Bush hasn't found one. He has commuted only two sentences, both of inmates who were about to be released anyway. Mr. Angelos, by contrast, is a young man and a first-time offender who is now likely to spend the rest of his life in prison. His crime? He sold $350 in marijuana to a government informant three times -- and carried, but did not display, a gun on two of those occasions. Police found other guns and pot at his house.
The U.S. district judge who sentenced him in Utah, Paul G. Cassell, declared the mandatory sentence in this case "unjust, cruel, and even irrational."... And in an extraordinary act, he explicitly called on Mr. Bush to use his clemency powers to offer what he as a judge could not: justice. Judge Cassell recommended that Mr. Bush commute the sentence to 18 years, which he described as "the average sentence recommended by the jury that heard this case."
Mr. Bush put Judge Cassell on the bench.... His exceptional discomfort with this case -- and his passionate plea for presidential mercy -- ought to carry weight even with a president so disinclined to use the powers the Constitution gives him to remedy injustices.
With all due respect, I question whether Weldon Angelos ought to be the Washington Post's poster child in a call for President Bush to make better use of his clemency powers. Though I view Angelos' sentence to be much longer than needed, there are thousands of other non-violent drug offenders in the federal system who are serving sentences much longer than necessary because of mandatory sentencing provisions. (Consider, for example, the story of Clarence Aaron discussed in this recent commentary.)
Though I commend the Post for encouraging President Bush to make better use of his clemency powers, it ought to use the Angelos case as a springboard for a broader discussion of the problems of mandatory minimum sentencing provisions.
Some related posts on the Angelos case and the clemency power:
December 8, 2006
Drug reform in the new Congress
The Drug War Chronicle has this interesting new piece entitled "Drug Reform and the Democratic Congress: What's Going to Happen?". Here is a snippet:
There is a whole long list of drug reform-related issues that the Democratically-controlled Congress can address, and hopes are high that after a dozen years of Republican rule on Capitol Hill, progress will come on at least some of them. But will the Democratic Congress really turn out to be Santa Claus, bestowing gifts on a movement long out in the cold, or will it turn out more like the Grinch, offering up tantalizing glimpses of the goodies only to snatch them away?
Another notable Note on the Sixth Amendment's reach
In this recent post, I spotlighted a new Columbia Law Review Note exploring how Blakely might affect orders of restitution and forfeiture. Today it's time to note a notable Note in the Yale Law Journal. This Note is entitled "Sentencing Organizations After Booker" and is available at this link. Here is the abstract:
In United States v. Booker, the Supreme Court held that courts violate individuals’ right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. The Supreme Court, however, has never decided exactly when organizations are entitled to a criminal jury. Accordingly, Booker's full implications for the organizational sentencing guidelines are not immediately clear. Nonetheless, a careful reading of the law suggests that organizations are entitled to a jury in at least most federal criminal cases and thus that Booker's logic should apply to the organizational guidelines.
Recapping the SCOTUS docket discussion
The ACSBlog has this helpful recap of some of the recent discussions of the SCOTUS docket, while Jonathan Soglin at Criminal Appeal sets out four more cert-worthy criminal justices issues in this post. As detailed by the posts linked below, I really enjoy examining how the Supreme Court sets its agenda.
Notably, the latest discussion has not yet zeroed in on the cert pool, which seems to have had a role in cert dynamics in the last decade. There was talk around the time of Chief Justice Roberts' confirmation that try to tweak the cert process; I hope that the new docket debate might get that talk going again.
Some recent related posts:
- What SCOTUS should be doing
- Solving the SCOTUS docket mystery
- Additional SCOTUS docket dissection
- Time to take some more Blakely and Booker cases....
- New Justices content with their dip in the pool
- Roberts, the cert pool, and sentencing jurisprudence
- Problems with the SCOTUS docket
- More on Alito and the criminal docket
Eleventh Circuit balks about consideration of post-sentencing behavior
In a per curiam opinion, the Eleventh Circuit in US v. Lorenzo, No. 05-16119 (9th Cir. Dec. 8, 2006) (available here) suggests that the district court's consideration of post-sentencing behavior is never an appropriate consideration at a Booker resentencing. Because Lorenzo is a short opinion dealing with a quirky (though perhaps quite common) re-sentencing situation, I do not want to read too much into its reversal of a district court's lenient sentence. But the Eleventh Circuit's analysis hints that post-sentencing behavior is never a proper consideration, and I have a hard time squaring such a broad crude rule with the nuanced text of 3553(a).
The lethal mess in Ohio
A number of folks have noticed the mess that the obviously divided Sixth Circuit has been making of death penalty administration in recent years. The latest lethal injection litigation developments have brought the issue to a new level of ugliness.
As well covered by DPIC, Capital Defense Weekly and ODPI, earlier this week U.S. District Court Judge Gregory Frost in this fascinating ruling sharply criticized the lack of any clear guidance from the Sixth Circuit, lamenting a "morass of deadly ambiguity" on how to apply the law. Here is a taste:
[T]his Court is now confronted with two different unreported decisions by two different [Sixth Circuit] appellate panels, both concerned with the same issues of law and both reaching wholly opposite, unexplained results.... This Court's inability to discern the appellate rationale for denying or granting a stay does not promote confidence in the system, does not promote consistency in court decisions, and does not promote the fundamental value of fairness that underlies any conception of justice.
Ninth Circuit discusses safety-valve after Booker
Though the Ninth Circuit won't be addressing reasonableness review until the Supreme Court does (story here), a panel today did speak to the application of the so-called safety-valve after Booker in US v. Cardenas-Juarez, No. 05-30250 (9th Cir. Dec. 8, 2006) (available here). Here is the key take-away:
We now hold that the safety valve statute, 18 U.S.C. § 3553(f), survives Booker to require district courts to impose sentences pursuant to the advisory Sentencing Guidelines. This is consistent with congressional intent both to provide relief for less serious offenders and to reduce sentencing disparity. When the statutory safety valve requirements of § 3553(f) are met, "district courts still 'must consult [the] Guidelines and take them into account when sentencing,' even though they now have the discretion to impose non-Guidelines sentences." United States v. Cantrell, 433 F.3d 1269, 1278 (9th Cir. 2006) (quoting Booker, 543 U.S. at 264).
Plead guilty or face lifetime solitary confinement?
Severe federal sentencing laws give federal prosecutors lots of bargaining leverage to get guilty pleas rather than to have to prove guilt at a trial. But this story from Buffalo sent to me by a helpful reader provides a new and disturbing twist on prosecutorial efforts to
coerce encourage a guilty plea:
Federal prosecutors have told James C. Kopp he will spend the rest of his life in solitary confinement, locked up 23 hours a day in the nation's most-secure prison, if he insists on a trial and is convicted on federal charges stemming from the October 1998 killing of Dr. Barnett A. Slepian. But if he pleads guilty instead, the prosecutors told Kopp in a recent meeting, they would see that he is sentenced to a medium-security federal prison.
Kopp, who is representing himself, disclosed the government's offer in a four-page affidavit he wrote from his cell in the Niagara County Jail and made available to The Buffalo News. His court-appointed legal adviser, assistant federal public defender John F. Humann, confirmed Kopp's version of the offer....
Kopp already is destined to spend at least the next 25 years of his life in prison, after he was convicted in Erie County Court of Slepian's murder. Now 52, Kopp would be in his 70s before he was even eligible for state parole and even then would be unlikely to be granted his freedom. Kopp faces an additional life sentence in federal prison if convicted of charges that, by his killing Slepian, he violated a federal law guaranteeing access to abortion clinics.
Additional SCOTUS docket dissection
At the Volokh Conspiracy, Orin Kerr has this intriguing post speculating about the Supreme Court's reluctance to resolve splits that have emerged after Booker. Orin suggests the sentencing cert pattern "has more to do with the nature of 5-4 constitutional revolutions than with any new reluctance to take cases or any lack of interest in sentencing law."
I see wisdom in Orin's points, and it's surely true that "the Court will often take a while to work through the implications of its 5-4 revolutions." That said, the modern SCOTUS sentencing story has some important additional nuances:
- First, the recent "5-4 revolution" of sentence law already extends back 6+ years to the June 2000 Apprendi decision (and really one year earlier to the 1999 Jones ruling).
- Second, the purported raison d'être of federal sentencing reform is to create uniform national sentencing rules; allowing a circuit split over federal guideline sentencing to fester after Booker would seem to undermine a chief goal of federal guideline sentencing.
Moreover, my broader point in this post was not simply to lobby for more sentencing cases on the SCOTUS docket. Rather, I wanted simply to spotlight that, against the backdrop of massive growth in state and federal criminal justice systems and issues, reductions in the Supreme Court caseload is a deliberate choice, not an unavoidable reality. (And, on this topic, Federal Defender Steve Sady has this extended discussion of "several areas that involve either huge numbers of cases, significant conflicts in the lower courts, or both, that need to be addressed as soon as possible.")
Some ugly realities of incarceration
Over at TalkLeft, Jerayln is doing a fine job spotlighting some recent developments and commentary about the sorry state of medical conditions in Americas prisons. Here are her two recent posts:
- 7,000 a Year Die in U.S. Prisons (discussing this commentary)
- Mich. Prison System Held in Contempt of Court (discussing this news report)
Relatedly, CrimProf here reports on "a civil-rights investigation into the King County Jail in Seattle, focusing on sexual abuse of inmates and on allegations of inadequate suicide prevention and contagious-disease control."
Another shame(ful?) sentencing example
A helpful reader pointed me to another story about another shaming sentence. Perhaps because I am drawn to shaming as an alternative to incarceration in the right cases, I read this AP story from Albany, Georgia as another example of the positive possibilities of sensible shame sentences:
A young woman sentenced to walk a downtown sidewalk wearing a sandwich board announcing her crime as a condition of her probation for burglary said the experience was humbling and humiliating, but definitely better than serving jail time.
"I understand the judge's reasoning,'' said Breanna Klewitz, 23, of her two-hour walk on a sidewalk in front of the Dougherty County Courthouse, wearing signs that read, "I AM A THIEF'' and "I STOLE WHAT YOU WORKED FOR.'' "If you do something wrong, you have to accept some responsibility,'' she said. "Sitting in a jail cell does provide anonymity. I wish the world didn't have to know me by face and by name. But I understand his reasoning."...
Chief Superior Court Judge Loren Gray sentenced Klewitz to five-years probation as a first offender for her role in a June burglary at a local fast-food restaurant, where she worked as an assistant manager....
Klewitz said she was amazed at the words of encouragement from passers-by during her two-hour walk on Wednesday. "They said, 'Hang in there,' 'We're praying for you,''' she said. "The only thing I could think of is, rather this than jail. It's definitely made me a better judge of character and who I hang out with.''
Gray said he wants people who steal to know that their crimes will be exposed. Sending defendants like Klewitz to jail for the weekend, allows them to escape public scrutiny and is a burden on taxpayers, he said.
Some recent posts on shaming sentences:
- What punishments really undermine human dignity?
- Shaming punishments and communitarianism
- More shame, shame on you
- Weekend reading on shaming punishments
- The state of shaming punishments (with lots of links)
December 7, 2006
For death penalty fans...
Ninth Circuit decides to punt reasonableness en banc
In an order that I cannot yet find on-line, the Ninth Circuit has decided en banc to postpone its decision on reasonableness review in Zavala and Carty (lots of background here) until after the Supreme Court decides Claiborne and Rita (lots of background in this index). Here is the text of the order I was sent via e-mail, which includes a notable footnote from Judge Kozinski:
We ordered rhrg en banc in these cases on 8/23/06, in order to settle the law of this circuit in light of US v. Booker, 543 US 220 (2005). We heard oral argument and ordered the cases submitted on 10/6/06. Since then, the US Supreme Court has granted writs of certiorari in Claiborne v. US, 75 U.S.L.W. 3243, 3246 (U.S. Nov. 3, 2006) (No. 06-5618) and Rita v. US, 75 U.S.L.W. 3243, 3246 (U.S. Nov. 3, 2006) (No. 06-5754).
The issues in Claiborne are: 1) Was the district court's choice of below-Guidelines sentence reasonable? 2) In making that determination, is it consistent with Booker to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?
The issues in Rita are: 1) Was the district court's choice of within-Guidelines sentence reasonable? 2) In making that determination, is it consistent with Booker to accord a presumption of reasonableness to within-Guidelines sentences? 3) If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 USC Section 3553(a) factors and any other factors that might justify a lesser sentence?
Given overlap of the issues raised, we vacate submission of Zavala and Carty pending the decisions by the Supreme Court in Claiborne and Rita. Meanwhile, our 8/23/06 order remains in effect. Accordingly, the panel opinions shall not be cited as precedent by or to this court or any district court in the circuit.
FN1: Judge Kozinski would plough forward to a decision and give the Supreme Court the benefit of our thinking, inspired by the exceptionally fine briefing and argument presented by the parties and most amici.
SCOTUS takes up three new criminal cases
Conveniently, as everyone is talking about about the Supreme Court's spartan docket, SCOTUS announced five new cert grants today. All the details at here at SCOTUSblog, and this is Lyle Denniston's account of the three habeas cases new to the Court's docket:
In one of the criminal appeals the Court accepted for review, the Court will rule on a federal appeals court's authority to overturn a death sentence in a habeas case, based on a finding that the prosecutor's closing argument in the penalty phase was unfairly inflammatory (Roper v. Weaver, 06-313).
The question at issue in Fry v. Pliler (06-5247) is whether a trial judge's order to exclude evidence that a third party was guilty of the crime can ever be excused as "harmless error."
The fifth case the Court granted is Bowles v. Russell (06-5306), testing whether a federal appeals court may dismiss as too late an appeal that a District Court had authorized, out of the usual time limits but after the District Court had reopened the appeal time.
Helpfully, Kent Scheidegger provides links to the circuit rulings being reviewed here.
Some recent related posts:
Man bites dog: Eighth Circuit affirms downward variance
Should we call this the Claiborne effect? Today the Eighth Circuit, the wake of the Supreme Court recent cert grant in an Eighth Circuit case involving a reversal of a downward variance, actually affirmed a significant downward variance in US v. Wadena, No. 06-2535 (8th Cir. Dec. 7, 2006) (available here). The fact in Wadena are compelling (the defendant is an ill, older gentleman who committed fraud) and the opinion is really interesting. Here is one passage that really caught my eye:
Although [four Eighth Circuit precedents] involved the reversal of downward variances that had resulted in probation when the Guidelines had called for imprisonment, they do not stand for a blanket rule that all such variances are unreasonable. Such a rule would amount to the judicial elimination of a sentencing option that would otherwise be available under federal criminal statutes that do not impose mandatory imprisonment, including the statute at issue in this case.... That kind of categorical, mandatory approach to sentencing on the basis of judicially-found facts is precisely the type of sentencing regime the Supreme Court rejected in Booker.
The panel in Wadena goes on to distinguish on the facts its four prior precedents reversing downward variances, and does so with lots of dicta that defense attorneys will surely appreciate.
Solving the SCOTUS docket mystery
In this morning's New York Times, Linda Greenhouse has this terrific article entitled "Case of the Dwindling Docket Mystifies the Supreme Court." Linda provides reasons for the problems SCOTUS has had filling its docket, but one is most fundamental: "The federal government has been losing fewer cases in the lower courts and so has less reason to appeal."
Of course,this is especially true in the federal sentencing universe after Booker, where the government is far more likely to seek (and win) through en banc review rather than through cert when it (rarely) loses before a circuit panel. (I have often said since Blakely that the US Supreme Court is now probably the most liberal appellate court in the nation on sentencing issues; the Justice Department is obviously not eager to have the Court that brought us Blakely and Booker considering many sentencing issues.)
I dispute the notion that there is a "paucity of cases that meet the court's standard criteria" for review. (Linda attributes this view to the Justices and Orin Kerr seems to agree.) There are numerous circuit splits on Booker issues that impact thousands of cases every month. Right after Booker, we had a crazy three-way circuit split over Booker plain error the Court refused to consider. And, as I have detailed here, even after the Court considers reasonableness review in Claiborne and Rita, there are at least three other major circuit splits on how advisory guidelines are supposed to work.
In addition to four important post-Booker issues that surely "meet the court's standard criteria," there are many other sentencing issues that have split the lower courts before and after Blakely. These issues range from the scope of the "prior conviction" exception to the burden of proof for large sentence increases to the application of Blakely to non-prison sentences to the constitutionality of residency restrictions and so on and so on....
Significantly, while the SCOTUS docket has shrunk dramatically over the last 20 years, the size of federal and state criminal justice systems have increased dramatically. There are literally millions more criminal justice cases in the system now than there was two decades ago. In my view, the problem is not the lack of worthwhile cases, the problem is a Supreme Court which has altered its view on what sorts of cases seem worth its time and energy.
What the latest USSC data reveal
Though I have not yet assessed all the particulars, the latest USSC sentencing data (basics here) suggest that the circuits' anti-defendant tilt in their approach to reasonableness review is significantly impacting the rate at which district judges go below the guidelines. (Some recent evidence of the circuits' anti-defendant tilt appears here and here, older evidence is here.)
Here's what I noticed from the last three data reports from the USSC's Booker page. District judges were going below the guidelines (either via departures or variances) in 12.4% of all cases through June 1 in Fiscal Year 2006. The data through June 30, however, showed judges going below the guidelines in only 12.1% of all cases in FY 2006. The latest stats through September 30 now show that judges went below the guidelines in only 11.9% of all cases for all of FY 2006.
Because these number are cumulative, this accounting does not reflect the particularly low variance rate for the last two quarters of FY 2006. My rough guess is that judges have been downward varying in less than 1 of every 10 cases over the last two quarters of FY 2006. Also Figure I in this latest data run shows that some average drug sentences have gone way up the last two quarters (especially for crack and meth); Figures A and B suggest this may be because district judges now varying less in these cases.
Laughing all the way to the (en) banc after Booker
In a very long post here (his longest ever?), Howard Bashman gives his view on the Eighth Circuit's distinctive procedural handling of the crack sentencing case Spears (discussed here and here). Howard sensibly speculates about how a likely 2-1 win for the defendant before the Spears panel became a 10-2 loss after the full Tenth Circuit got involved. He says he sees "nothing whatsoever suspicious or unusual going on" in Spears.
Howard's story makes sense, but the handling of Spears still seems quite "unusual" to me. Howard does not reference any other circuit cases handled this way, and I've never seen such an en banc reversal without the issuance of a panel opinion or an opportunity for more briefing or argument. Significantly, the Third Circuit issued a major ruling (Gunter) supporting the defendant's position after the original briefs and argument to the panel, so there was a significant new development worth briefing and discussing with the court.
The broader story is how circuits are even employing en banc practice to disfavor defendants after Booker. The government wins roughly 99% of all reasonableness appeals after Booker. And yet, when the rare defendant prevails before a three-judge panel, circuits seems eager to go en banc to undo the defendant's apparent victory. Spears is one example, and on-going en bancs in the Sixth and Ninth Circuits also followed a rare defense win on reasonableness review. To my knowledge, not a single one of the 2000+ government wins on reasonableness review has be vacated and reviewed en banc by any circuit.
Tenth Circuit affirms another above-guideline sentence
I never cease to be amazed after Booker how readily circuits approve upward variances based on reasons they typically reject for downward variances. The recent example comes from the Tenth Circuit's work in US v. Shaw, No. 05-6074 (10th Cir. Dec. 6, 2006) (available here).
In Shaw, the Tenth Circuit notes that "[o]rdinarily, the disparity between co-defendants' sentences is not grounds" for deviating from the guidelines. Nevertheless, the Tenth Circuit in Shaw approves the district court's large variance above the guideline range so Shaw's sentence matched a co-defendant's higher guideline sentence.
Apparently a concern for co-defendant disparity is reasonable when it prompts a sentence increase, but is more suspect when it leads to a sentence decrease. As Arsenio Hall might have said on his long-ago show, this is another aspect of the post-Booker world "that makes you go hmmm."