February 4, 2006
Gearing up the Moussaoui trial
Anyone interested in gearing up for the Monday start of the sentencing trial of Zacarias Moussaoui, the only person charged in the United States with a crime for a role in the September 11 terrorist attacks, will want to check out this CNN story and this AP story and this timeline of major events and this Wikipedia entry.
UPDATE: The New York Times now has this article on the upcoming Moussaoui trial.
MORE: How Appealing has a helpful collection of additional Moussaoui coverage here.
Lucky in lotto, unlucky in law
This story of a federal sentencing in Illinois perhaps provides a great set of facts for a future exam question in my sentencing course:
A local man who won millions in the Illinois Lottery was sentenced on Friday in Rockford federal court to 30 months in federal prison, without parole, for gun trafficking and drug dealing charges, according to a news release from the U.S. Department of Justice.
Defendant Eric Wagner, 33, of Freeport, who won the $37.5 million Illinois Lottery jackpot in April, was arrested in May by agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives.... The indictment accused Wagner of multiple counts of selling a firearm to a felon and illegally distributing marijuana. In addition to the 30-month prison sentence, Wagner also was ordered to pay a $35,000 fine, to pay the costs of his own incarceration, and was sentenced to 30 months of supervised release following his release from prison, officials say.
"We believe the sentence was appropriate," said Assistant U.S. Attorney Joseph Pedersen, who prosecuted the case. "He was sentenced within the guideline range and that's what we asked the court to do." James Zuba, Wagner's attorney, said the judge applied the sentencing guidelines as "he saw that they should be applied," and that his client "accepts" the sentence. "My client may disagree with the application of the guidelines, but he accepts the judge's decision," Zuba said.
The article explains that the defendant's drug and gun sales pre-dated his winning the lottery, and that the defendant was part of a partnership owning the winning ticket so he only cleared about $2.5 million. Even so, I wonder if anyone suggested having the defendant pay a larger fine (and perhaps serve less prison time). Would taking a bigger chunk of the defendant's winnings perhaps better serve the various goals set forth by Congress in 3553(a)?
Another lethal injection litigation update
There is more news from the litigation desk as the lethal injection scrummages (basics here) rage on:
- As detailed here, the Fourth Circuit yesterday rejected lethal injection challenge brought by Vernon Lee Evans Jr., the death row blogger due to be executed next week.
- As detailed here, the litigation over Missouri's lethal injection protocol seems for now stuck in the Eighth Circuit.
Karl Keys at Capital Defense Weekly has this execution watch noting that there are six executions still scheduled for February, but that perhaps only two "appear headed for serious lethal injection litigation."
February 3, 2006
Friday afternoon ranting about the post-Booker world
I feel as though I have been ranting a lot lately, whether about the SCOTUS's lethal injection scrum or about excessive attention given to the death penalty, or about the ugly look of reasonableness review, or the USSC's failure to address crack sentencing after Booker. Consequently, I was somewhat relieved today to get an e-mail about the post-Booker world from an informed and thoughtful sentencing observer which came with the heading "A Friday Rant." I have received permission to share this (amusing? depressing? spot-on?) rant:
First, the Sentencing Commission should be de-funded and abolished. What would the public's reaction be if the director of FEMA issued the agency's annual report without mention of Katrina? I find that equivalent to the Commission issuing what amounts to its State of the Union paper without mention of a case that rocks the universe of federal sentencing and should have everything to do with the Commission's current mission.
Second, why is no one apparently commenting on what I perceive as DOJ's lawlessness. If I understand things correctly, every federal prosecutor in America is, in every case, required to stand before the courts and proclaim the guideline sentence to be the appropriate sentence. Well hasn't the nation's highest court said otherwise? And, if so, what does it say about our Justice Department that it has adopted a policy contrary to law?
Third, I, like you, am perplexed by the increasing and not entirely surprising presumption of correctness being given to the guidelines. Pursuant to Section 994, the Guidelines were created under orders that meaningful consideration not be given to the characteristics of the offender. How then can a sentence determined pursuant to those guidelines be presumptively reasonable under 3553 when the latter expressly requires consideration of offender characteristics? To treat a guideline sentence as presumptively reasonable strikes me as endorsing sentencing without consideration of offender characteristics. Isn't that a judicially-crafted constructive redaction of the statute?
The ugly look of reasonableness review
The more circuit opinions I read, the more it seems the circuit courts are creating de facto through reasonableness review a kind of post-Booker mandatory "minimum guideline system" that AG Alberto Gonzales called for last summer (basics here). To my knowledge, a full year+ after Booker, not one single within-guideline sentence has been declared unreasonable on appeal. But many below guideline sentences have been reversed as unreasonable, and yet many above guideline sentences have been affirmed as reasonable.
[UPDATE: A commentor rightly notes that Seventh Circuit did vacate a within-guidelines sentence in Cunningham because of the district court's "inadequate explanation." But, as detailed here, Cunningham is hardly a pro-defendant (or even pro-Booker) ruling.]
The ugly look of reasonableness review can be seen today in the Seventh and Eighth Circuits. In US v. Williams, No. 05-2380 (7th Cir. Feb. 3, 2006) (available here), the Seventh Circuit affirms another within-guideline sentence despite case facts strongly suggesting a lower sentence might well have better complied with Congress' command in 3553(a) to impose a sentence "not greater than necessary" to serve the purposes of punishment. The Seventh Circuit says in Williams that a within-guideline sentence "will rarely be unreasonable." But, based on reasonableness review to date, it would be more accurate for the court to state that a within-guideline sentence may never be found unreasonable.
Reasonableness review looks even uglier in the Eighth Circuit today as a result of two opinions by the same panel in US v. McMannus, No. 04-3560 (8th Cir. Feb. 3, 2006) (available here) and US v. Larrabee, No. 05-1143 (8th Cir. Feb. 3, 2006) (available here). In McMannus, the panel reverses as unreasonable two below-guideline sentences, while in Larrabee the same panel affirms as reasonable an above-guideline sentence. And, yet again, there is not mention of Congress' command in 3553(a) that a sentence should not be "not greater than necessary" to serve the purposes of punishment.
If nothing else, these decisions confirm my instinct (discussed at the Debate Club and here) that it is impossible to assess thestate of post-Booker sentencing until we get statistics about reasonableness review from the US Sentencing Commission. The cumulative post-Booker district court statistics are highly misleading if, as it seems, prosecutors are regularly convincing circuit courts to reverse below-guideline sentences.
Booker in the alternative
The DC Circuit, which makes sure its rare sentencing opinions are worth a close read, today issued US v. Booker, No. 04-3152 (DC Cir. Feb. 3, 2006) (available here), an interesting opinion discussing alternative sentencing. (For those scoring at home, this is a different Booker; not Freddie Booker of case-name fame, but Charles Booker.) In this Booker, the DC Circuit does a great job reviewing the current alternative sentencing landscape in the course of concluding that "an 'alternative sentence' is not really a 'sentence,'" and thus requiring a remand for full resentencing. Among other notable aspects of this Booker, the DC Circuit stresses the other Booker's "emphasis on sentencing judges' discretion," and the fact that "imposition of a discretionary, post-Booker sentence is not a ministerial task." (emphasis in original."
Coincidentally, late yesterday, the Fifth Circuit had occasion to discuss an alternative sentence at some length in US v. Story, No. 04-41323 (5th Cir. Feb. 2, 2006) (avalable here). Though the alternative sentence discussion is interesting, Story actually merits a close read because the it clarifies "an apparent discrepancy" in the Fifth Circuit's "treatment of whether or not appeal waivers implicate this court's jurisdiction."
Timelines for USSC Booker report and more detailed Booker data?
With Supreme Court transitions now complete and the history of federal crime-and-punishment legislation in election years, I fear that discussion of a legislative response to the Booker ruling may heat up in the weeks and months ahead. That's why I was so disappointed, as explained here and here, that the US Sentencing Commission's recently proposed new amendments do not even mention the Booker ruling nor address any post-Booker "hot spots" like the crack guidelines.
USSC indicated in this statement of priorities that it planned "a report on the effects of Booker on federal sentencing, including an analysis of sentencing data collected within the first year of that decision." Now that we are now almost a full month since Booker's anniversary, I am starting to wonder about the USSC's planned timeline for this important report. I sincerely hope that this report does not end up days late and dollars short to impact any coming debates over Booker.
Relatedly, as I have stressed in a number of prior posts here and here, a lot more detailed data are needed from the USSC in order to develop a complete and balanced view of the the post-Booker world of federal sentencing. Even if we do not see a full Booker report from the USSC in the days ahead, I hope a lot more post-Booker data will be forthcoming very soon.
February 3, 2006 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (1) | TrackBack
Senator Brownback questions death penalty and culture of life
As detailed here, a subcommittee of Senate Judiciary Committee on Wednesday afternoon held a hearing to facilitate "An Examination of the Death Penalty in the United States." And this interesting article about the hearing details that Senator Sam Brownback, Republican of Kansas, is seriously questioning the appropriateness of the death penalty in light of his commitment to a "culture of life":
"If use of the death penalty is contrary to promoting a culture of life, we need to have a national dialogue and hear both sides of the issue," Brownback said at a Judiciary Committee hearing he held. "All life is sacred, and our use of the death penalty in the American justice system must recognize this central truth."...
Brownback conceded he lacked a "cogent or coherent" response on where the death penalty fit into society, noting that it could be defended if it were used sparingly, only in the cases of heinous crimes in which there was no other way to protect society. "You'd have to question whether that is how it's used at the current time," Brownback said. "In other situations, it's hard to defend."
I wonder if Senator Brownback has checked out (1) the stunning editorial series from the Birmingham News, entitled "Choosing Life in a Death Penalty State," which closes with this commentary extolling our criminal justice system to embrace a culture of life rather than a culture of death, or (2) the U.S. Conference of Catholic Bishops' on-going Catholic Campaign to End the Use of the Death Penalty and its recently potent report entitled "A Culture of Life and the Penalty of Death."
Related prior posts:
February 2, 2006
From the capital politics desk
While the hot legal issue in death penalty ligation centers on lethal injection protocols (highlights here), a number of news stories from across the US spotlight that the same old political battles over capital punishment rage on:
- This Reuters article surveys the national death penalty pulse and suggests that there is "political paralysis" and "political murkiness" surrounding capital punishment issues.
- This article from Iowa highlights the escalating political spat over efforts to bring capital punishment to the state.
- This article from North Carolina details the arguments made by defense lawyers to the state's House Select Study Committee on Capital Punishment.
Gearing up for the next Blakely cases
Though not quite as chaotic and urgent as the on-going lethal injection scrummages (background here), the litigation mess that SCOTUS has made through its opaque Sixth Amendment jurisprudence is another example of how an unclear (and perhaps uncertain) Supreme Court can wreck havoc with state criminal justice systems. More proof comes through this fine article from The Daily Journal of California (courtesy of Howard Bashman), which discusses the Court's impending consideration at its next conference of a number of cert petitions raising Blakely challenges to California's sentencing system.
As I recently discussed here, Justice Alito will get his first opportunity to cut his teeth on Blakely issues through the SCOTUS conference in two weeks in which the Gomez case from Tennessee (background in this post) and a number of the Blakely cases from California are to be conferenced (more details in this post). The Daily Journal article provides an effective overview of how these issues are playing out in California while everyone awaits possible Supreme Court action. And the article highlights that it may not be a question of whether, just a matter of when and how, SCOTUS has to address these state Blakely issues:
[Attorney Jonathan] Soglin said it's possible that the high court does not have the appetite for another sentencing case right now. The justices also might want to let the issue percolate in the lower courts, he said.
However, even if the justices deny review, Soglin said, the issue will return to the high court again because the lower federal courts are beginning to examine California's sentencing scheme on habeas review. "That will just take much longer," Soglin said.
Still more on the lethal injection scrummages
Tom Goldstein in this post over at SCOTUSblog does his very best to sort through the mess SCOTUS is making with the lethal injection scrummages (background here), although I am not convinced matters are quite as orderly as Tom makes it sound. In addition, as evidenced by articles here and here, the media is starting to give broader coverage to some of the human realities behind the all the crazed litigation the Supreme Court has helped produce.
UPDATE: Gina Holland now has this AP story covering all the action. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, has the money quote: "Everybody's scratching their heads trying to figure out what's going on."
A political corruption sentencing to watch
As detailed in this AP article, today is the scheduled federal sentencing for "former state Sen. Ernest Newton, once one of Connecticut's top minority leaders, [who faces] a possible 6-year prison sentence for accepting a $5,000 bribe and other charges." More background can be found in this earlier AP story, which suggests prosecutors are alleging uncharged criminality to support its sentencing recommendations.
On one side is the year-and-a day term former Gov. John G. Rowland is serving in the federal prison camp in Loretto, Pa., for failing to report to the state and the Internal Revenue Service the $107,000 in gifts he received from state contractors and employees. On the other side is ex-Mayor Joseph P. Ganim, serving a nine-year prison term following his conviction on 16 federal corruption charges, involving nearly $500,000 in gifts, services and cash....
[A] term of probation is what Salvatore C. DePiano, the head of Newton's criminal defense team, is asking Nevas to impose. The U.S. Probation Department and Assistant U.S. Attorney James J. Finnerty recommend a prison term between 57 and 71 months for Newton.
CORRECTION: I have heard from an informed and helpful reader that, in fact, Ernie Newton's corruption sentence involved a non-guidelines sentence of 60 months, down from the guideline range of 70-87 months found by the judge (and advocated by the government). Interesting.
More lethal injection scrummages
I have been looking for an effective word to describe all the litigation over lethal injection since the Supreme Court granted cert in the Hill case from Florida (discussed here and here). For now, I like scrummage, a variation on the rugby term scrum, which the Brits use to describe a "disordered or confused situation involving a number of people." The term seems especially fitting given the Supreme Court's disparate decisions since it took Hill, the last of which gave Justice Alito his first taste of his new job (details here and here and also from Karl Keyes at Capital Defense Weekly).
Significantly, it looks like February will be a month of more lethal injection scrummages:
- As detailed in this Baltimore Sun article, a federal district judge in Maryland late yesterday rejected a challenge to lethal injection brought by Vernon Lee Evans Jr., the death row blogger due to be executed next week. Next stop, of course, is the Fourth Circuit and then SCOTUS gets another bite.
- As detailed in this AP report, yesterday a federal district judge ordered "California to turn over limited medical records of the past three men it executed as part of a lawsuit by a condemned prisoner trying to bolster claims lethal injection is cruel and unusual punishment." This California case has a hearing scheduled next week in anticipation of a Feb. 21 execution date.
Notably, this recent AP article about the Florida lethal injection scrummage confirms that the Supreme Court has essentially created a de facto moratorium on executions in Florida:
[Governor Jeb] Bush, a death penalty supporter, said Wednesday that the most recent Supreme Court action makes it highly unlikely that he will sign any more death warrants until the cases are resolved.
In the AP article, Hofstra Prof. Eric Freeman clarifies that the Florida cases are only about a procedural issue and he "predicted it could be three years before the Supreme Court has a chance to rule on the constitutionality of lethal injection." Three more years of these scrummages? Oy vey.
The circuits' sentencing start to the shortest month
Though I do not see any ground-breaking work in the decisions below, a few extended sentencing opinions from the circuit courts to start February seemed worth flagging:
- Fifth Circuit: US v. Torres-Diaz, No. 05-40090 (5th Cir. Feb. 1, 2006) (available here) (addressing "crime of violence" definition)
- Seventh Circuit: US v. Sharp, No. 05-1449 (7th Cir. Feb. 1, 2006) (available here) (lots of guideline application issues)
- Ninth Circuit: US v. Blandin, No. 05-10316 (9th Cir. Feb. 1, 2006) (available here) (applicability of a downward adjustment)
February 1, 2006
Alito's first vote in death penalty case
As detailed in this somewhat confusing AP story, Justice Alito's first official task as a Supreme Court Justice involved a vote in the capital cases from Missouri being litigated today (some background here). Because I cannot figure out exactly what's going on in the case from the AP report, I'll just quote its first few paragraphs:
New Supreme Court Justice Samuel Alito cast his first vote on Wednesday, as the court refused to give Missouri permission to immediately execute a man who killed a teenage honor student. The court's 9-0 action was procedural, however, because a stay was already set to expire Wednesday afternoon.
Separately, the court acting without Alito rejected Michael Taylor's appeal that argued that Missouri's death penalty system is racist. Taylor is black and his victim was white.
With luck, the gang over at SCOTUSblog will sort all this out for us soon.
UPDATE: This new AP article indicates that the 8th Circuit has now granted an en banc hearing for Taylor, though the grounds and claims remain murky. My head hurts.
MORE: As now detailed here by Lyle Denniston and here by the AP, the plot thickened for Alito and the rest of the Supreme Court in the Taylor case. With a delicate bit of understatement, Lyle observes that, in considering challenges to lethal injection protocols since the Court's grant of cert. in Hill, "[t]here has been no consistency in the results these pleas have drawn from the Court."
Why habeas (in non-capital cases) is so important
Though technically not a sentencing case, the decision today by the Ninth Circuit in Goldyn v. Hayes, No. 04-17338 (9th Cir. Feb. 1, 2006) (available here), provides a stark and stunning reminder that federal habeas corpus is about so much more than the death penalty (discussed here) and that those concerned about injustice in the criminal system should look beyond the death penalty (discussed here). Per Judge Kozinski, here are some choice snippets from Goldyn:
Petitioner spent 12 years in prison for conduct that is not a crime.... Over the twelve years she spent in prison, Goldyn asserted her innocence seven times before three courts. Yet no court appears to have taken her argument seriously....
No rational trier of fact could have found that Goldyn committed the crime of writing bad checks as defined by Nevada law. And no rational judicial system would have upheld her conviction. See 28 U.S.C. § 2254(d)(1). We are saddened and disappointed that the state supreme court unanimously affirmed a conviction carrying multiple life sentences based on such cursory and inadequate review of the record in light of the applicable statute....
Had the Nevada courts and prosecutor's office taken more seriously their "obligation to serve the cause of justice," United States v. Agurs, 427 U.S. 97, 111 (1976), Goldyn would not have spent twelve years behind bars for conduct that is not a crime.
UPDATE: A brief e-mail exchange with an astute colleague has led me to read the conclusion that Judge Kozinski's rhetoric seems too harsh given possible ambiguities in the criminal statute being applied in the case. Throw in the fact that the opinion moves past the habeas review standard quickly by concluding simply that "no rational judicial system would have upheld her conviction," and I am now convinced that the Goldyn story is more nuanced that the Ninth Circuit's opinion would suggest.
Indeed, a footnote at the end of the Goldyn opinion hints the Nevada lawyers handled in this case in a manner that led the Ninth Circuit panel to look at the state's claims in a damning light. Judge Kozinski says other claims by the defendant not ultimately addressed "raise similarly significant issues that cast further doubt on the state's commitment to the pursuit of justice in this case." I will be interested to see if we hear more background about the litigation of this case in the days ahead.
Important Booker twosome from the Tenth Circuit
Late yesterday, while others were gearing up for a big speech or litigating the constitutionality of lethal injection protocols, the Tenth Circuit released two significant sentencing opinions: US v. Wolfe, No. 04-2114 (10th Cir. Jan. 31, 2006) (available here), and US v. Crockett, No. 04-4204 (10th Cir. Jan. 31, 2006) (available here).
In the Wolfe decision, the Tenth Circuit in a drunk driving case reverses the district court's (pre-Booker) decision to depart upward, concluding that "the district court erred in departing upward based on factors that impermissibly double-counted facts that were already taken into account by the guidelines' calculation of the applicable sentencing range or by other departure factors [and that] the district court failed to explain the degree of its departure adequately." The extensive and thoughtful Wolfe ruling is includes lots of the right stuff in dicta about post-Booker sentencing: among other key points, footnote 6 in Wolfe suggests the Tenth Circuit disagrees with the Seventh Circuit's peculiar claim that "the concept of 'departures' has been rendered obsolete in the post-Booker world."
In the Crockett decision, however, the Tenth Circuit manages to commit much Booker vice in a single paragraph. Here is the paragraph in Crockett that seems like a crock:
Defendant also argues that giving the Guidelines a high level of deference on remand would violate his Sixth Amendment rights by de facto making the Guidelines mandatory. However, Booker instructs that trial courts, "while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." 125 S. Ct. at 767. Further, the opinion indicates that trial courts must accord deference to the Guidelines: "These features of the remaining system, while not the system Congress enacted, nonetheless continue to move sentencing in Congress' preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary." Id. Thus, we decline Defendant's invitation to dilute the influence of the Guidelines upon remand of his sentence.
This paragraph seems so wrong because I do not think it is at all fair to read Booker as indicating "that trial courts must accord deference to the Guidelines." The Booker remedial opinion states that judges must "consider," "consult" and "take ... into account" the guidelines, but no where does Booker say the guidelines must be accorded deference by sentencing courts.
Moreover, I think the Booker merits opinion gives force to the claim that giving the guidelines too much deference triggers constitutional concerns. After all, district judges had significant (though cabined) discretion to depart from the guidelines before Booker, but the Supreme Court did not think that the discretionary authority provided by traditional departures preserved the system's constitutionality. Put another way, after Booker, the influence of the Guidelines has to be diluted to avoid the constitutional problems that led to the Booker ruling. (At least that's what Justice Scalia explained in his Booker opinion and what perhaps as many as seven members of the current (Scalia-Thomas?) Court might now believe.)
Pardon the gratuitous pop culture references, but that's what happens after watching Dennis Miller's latest HBO special (which was good but not great).
Another notable death penalty report
Folks interested in the administration of the death penalty, in addition to the 500+ pages of reading coming from the ABA and AI earlier this week, now also have another nearly 200 pages courtesy of the Constitution Project's Death Penalty Initiative. Here is how this official press release describes the latest effort:
Today in Washington, the members of the Constitution Project's bipartisan, blue-ribbon Death Penalty Initiative released an updated set of guiding principles for reform of death penalty systems in the United States. Timed to correspond with an important death penalty hearing in the Senate Judiciary Constitution, Civil Rights and Property Rights Subcommittee, Mandatory Justice: The Death Penalty Revisited examines problems and solutions relevant to all capital punishment systems in the United States.
The full report and an executive summary can both be accessed from this webpage, which also provides this additional helpful account of the report's coverage:
The latest report of the Constitution Project's Death Penalty Initiative, Mandatory Justice: The Death Penalty Revisited, provides a list of specific and innovative tactics for improving the fairness and reliability of capital punishment systems in the United States. Updating the Initiative’s first publication on this topic (issued in 2001), the report notes some improvements in recent years and identifies further steps that must still be taken in order to minimize mistakes and increase fairness and accuracy.
January 31, 2006
SCOTUS lethal injection litigation updates
I pondered here how the the Supreme Court's decision to permit Indiana to go forward with a lethal injection execution — despite stopping Florida's effort to execute Charles Hill and granting cert on his case adressing the procedures for challenging a lethal injection (discussed here and here) — would impact litigation unfolding around executions scheduled for today in Florida and Texas. Now this AP article reports that SCOTUS has granted a stay in the Florida case, while this AP article reports that the Supreme Court refused to stop the Texas execution.
Though I am not sure of the procedural posture of each case, I cannot really think of a good legal reason why the defendant in Florida received a stay while the defendant in Texas didn't. My instinct is that the Court simply concluded that it would be unseemly to allow Florida to conduct a lethal injection while the Hill case was pending.
So, to answer my prior question, it seem the Hill case has produced a de facto moratorium on execution only in the state of Florida. And thus, the tempest over lethal injection proves yet again tha geography more than justice often determines who lives and who dies in the administration of capital punishment.
UPDATE: This article details that the lethal injection tempest has delayed a planned execution in Missouri, while drawing the district court, the Eighth Circuit and SCOTUS into the action. What a capital mess the Hill grant seems to have produced.
Will the State of the Union include any sentencing coverage?
The confirmation hearings for both Justices Sam Alito and John Roberts confirmed my sense that traditional crime and sentencing issues are not matters of great political concern these days. Of course, the war on terror and the death penalty were focal points in the hearings, but to my chagrin (see here and here) few other criminal justice matters were raised.
Consequently, I will be surprised if President George Bush's State of the Union Address tonight includes any sentencing coverage at all. However, it bears recalling that President Bush's last two State of the Union Addresses have included some surprising sentencing coverage:
- Calling America "the land of second chance," President Bush in his 2004 State of the Union address spotlighted prisoner re-entry issues and proposed "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups." Some background on these re-entry issues can be found in this post.
- Asserting that in America "we must make doubly sure no person is held to account for a crime he or she did not commit," President Bush in his 2005 State of the Union Address asserted that he was going "to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side." In this post around the time of her nomination to the Supreme Court, I speculated that this surprising discussion of the importance of competent counsel might have been pushed by White Housel Counsel Harriet Miers.
What does Justice Alito think about Blakely and Booker?
As this post at SCOTUSblog details, Judge Sam Alito is now officially Justice Sam Alito. The timing is notable, not only because this morning the Third Circuit released this 4th Amendment opinion authored by then-Judge Alito, but also because "Alito will attend his first scheduled Conference ... on Friday, Feb. 17." The Feb. 17 Conference is already on my calender because the Gomez case from Tennessee (background in this post) and a number of the Blakely cases coming from California are to be conferenced that day (more details in this post). Consequently, Justice Alito will be immediately contributing his input on whether, when and how the Supreme Court will examine state sentencing systems that have so far elided Blakely.
Were I to now predict Justice Alito's views on Blakely and Booker, I fear that, as I explained here, criminal defendants should expect him to prove to be more in the mold of Rehnquist than in the mold of Scalia. But then again, one never knows how persuasive Antonin can be. After all, Justice Scalia has so far convinced Chief Justice Roberts to see the world his way in every single decision by the Court this year. And, given the current SCOTUS sentencing head-count on Apprendi-Blakely-Booker issues, if either Justices Alito or Roberts were to embrace Justice Scalia's perspectives on jury trial rights, Blakely's reach and impact might ultimately be even broader than anyone has predicted.
Some related posts:
Sixth Circuit embraces presumption of reasonableness
This morning through a brief opinion in US v. Williams, No. 05-5416 (6th Cir. Jan. 31, 2006) (available here), the Sixth Circuit joined a few other circuits in expressly declaring that a within-guideline sentence is presumptively reasonable. Here is some key language from Williams:
Although several of our sister circuits have concluded that any sentence within the applicable Guidelines range garners a presumption of reasonableness, this court has yet to articulate what weight should be accorded the Guidelines relative to the other sentencing factors listed in § 3553(a). We now join several sister circuits in crediting sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness. Such a presumption comports with the Supreme Court's remedial decision in Booker.
Folks interested in this issue should also know that the First Circuit has scheduled an argument for next week to consider en banc whether to adopt such a presumption. The buzz I have heard is that some judges on the First Circuit may not be too keen on such a presumption.
I am concerned about an appellate presumption of reasonableness because, though such a presumption may comport "with the Supreme Court's remedial decision in Booker," I am not sure it comports with the Supreme Court's merits decision in Booker. Indeed, I am trying to finish up a draft of an article in which I suggest that, at least in cases involving judicial fact-finding to support a higher guideline range, appellate courts ought to be applying a presumption of unconstitutionality to any within-guideline sentence. I hope to say more about this (crazy?) idea in the days ahead.
Two (long) reports on problems administering the death penalty
For anyone interested in a lot of reading about capital punishment, Monday was a special day. Courtesy of the American Bar Association (ABA) and Amnesty International (AI), we now have over 500 pages analyzing flaws in the operation of the death penalty in the United States:
1. The ABA report, previously noted and linked here, is focused on the application of the death penalty in Georgia and is part of the Death Penalty Moratorium Implementation Project of the ABA Section of Individual Rights and Responsibilities. The full ABA report runs over 300 pages, and this ABA news release gives an account of some of its findings:
Areas the [study] team identified as in great need of reform include inadequate funding for defense counsel, failure to provide defense counsel in state habeas proceedings, lack of meaningful review of proportionality of sentences, inadequate pattern jury instructions addressing mitigation, continued existence of racial disparities in capital sentencing, and the unreasonably strict "beyond a reasonable doubt" burden of proof required to prove mental retardation.
Notably, this Atlanta Journal-Constitution article reports that state officials are "unfazed by death penalty criticism" and that "Georgia political leaders showed little interest Monday in imposing a moratorium on death sentences or overhauling capital punishment." Oh well. I guess the ABA report authors should be encouraged by this editorial in the Macon Telegraph arguing that Georgia should "put death sentences on hold until flaws are fixed."
2. The AI report, as detailed in this Reuters article, is focused on the US's willingness to sentence to death and execute the severely mentally ill. The full AI report, which runs nearly 200 pages, is available here and a (convenient?) 43-page summary can be accessed here. Also, this AI news release gives an account of some of its findings:
The report focuses on the systemic problems confronting the mentally ill and chronicles the cases of 100 severely mentally ill offenders who have been executed since 1977.... Citing pervasive systemic failures in both the healthcare and criminal justice systems, the report also highlights the grim situation of the mentally ill currently on death row, which according to the US National Association of Mental Health is 5 to 10 per cent of the US's total death row population of approximately 3,400.
My (inappropriate?) reaction: I view these reports as a disconcerting waste of time and energy, and as further proof that the Supreme Court is not alone in getting caught up in a "legal culture of death." I continue to be troubled by how much time and attention is given to death penalty processes and defendants, especially since (1) everyone on death row has been convicted and sentenced to death for murder, and (2) the alternative to execution is life in prison. Putting innocence issues aside, I find it amazing (and annoying) how much energy is spent trying to ensure that a bunch of murderers get to spend a bit more time locked in a cage before they die.
I find the ABA's extensive report on Georgia's capital system and its plans to do similar reports for 15 other states especially disconcerting. According to the report, over the last 30 years, Georgia has imposed 328 death sentences, but has executed only 39 people and now has 101 defendants on death row. Even without digging deeper into these numbers, I think we can reasonably conclude that a murderer sentenced to death in Georgia is (far?) more likely to functionally serve a life sentence than to be executed. (I suspect this is true in every state except possibly Texas, Virginia, Oklahoma and Missouri.)
Is there much benefit from extended reports which essentially seek to increase the chance a few more murderers die naturally in prison rather than get executed? And is anyone surprised that these sorts of reports produce nothing more than a shrug from politicians? Indeed, is it likely that anyone who currently supports the death penalty will even read all 300+ pages of the ABA's Georgia report?
These reactions are driven by my sense that there are far greater injustices in our criminal justice system than what we see in the (over-analyzed) death penalty system. There are at least 132,000 persons in the US serving life imprisonment, some for petty crimes because of a personal history as a small-time thief or drug dealer. And, of the more than 2,000,000 persons in jail or prison, nearly half are serving time for non-violent offenses. In my view, these defendants merit the time and attention of groups like the ABA and AI a lot more than the murderers on death row.
January 30, 2006
Bernie Ebbers gets sympathetic sentencing ear in Second Circuit
As detailed in this AP article discussing a notable oral argument in the Second Circuit, "a lawyer for former WorldCom Corp. chief Bernard Ebbers found a receptive audience Monday in appeals court judges who questioned the fairness of prosecutors and of the 25-year sentence Ebbers faces for an $11 billion fraud." The bulk of the article explores arguments over Ebbers' trial claims, but the AP report does add intrigue to how the Second Circuit might deal with reasonableness review in the Ebbers case.
The timing of the Ebbers oral argument is remarkable as the legal press is focused on the federal criminal trial for former Enron executives Ken Lay and Jeff Skilling starting today. In this vein, here is an interesting BusinessWeek article entitled "White-Collar Crime: Who Does Time?".
- Bernie Ebbers gets 25 years
- Ebbers' plea for leniency
- A pattern of white-collar leniency?
- Are the federal guidelines too tough on white-collar offenders?
January 29, 2006
What is the Sentencing Commission fiddling while the crack guidelines burn?
Over the summer, the US Sentencing Commission indicated in this statement of priorities that it was working on cocaine sentencing policy. But, as detailed here, in its 88-page discussion of new proposed amendments, the USSC does not address the crack guidelines (and also, stunningly, fails to even mention the Booker ruling). Especially given that some (many? most?) federal judges, as detailed in the recent Sentencing Project report, are using their post-Booker discretion to deviate from the crack guidelines (which the USSC's own 2002 report concludes are too severe and create unwarranted disparities), I am troubled by the USSC's decision not to speak at all on crack sentencing in its new set of amendments.
Additional evidence something needs to be done about crack sentencing comes from a decision last week by District Judge John Bates in US v. Doe, No. 02-0406 (D.D.C. Jan. 26, 2006) (available here), in which the court decides it should not deviate from the crack guidelines despite recognizing that judges in the DC District and elsewhere have done so. In my view, Doe ultimately falls prey, like the First Circuit's recent Pho decision (basics here, commentary here and here and here), to what Marc Miller has fittingly described as "Sentencing Equality Pathology". In Doe, Judge Bates thoughtfully explains his views, but like the First Circuit in Pho, Judge Bates fails to mention Congress's clear command in 3553(a) that a court "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment. Like the Pho court, Judge Bates in Doe seems to the elevates his perceived intent of Congress over the plain textual commands of 18 U.S.C. § 3553(a).
Whatever one thinks of the merits of the Doe decision, it provides further evidence of the deepening post-Booker disparity in the application of the crack guidelines. Of course, because the USSC is still yet to promulgate any statistics about sentencing in crack cases, we do not know how deep this disparity may run. Ironically, if statistics showed that judges were deviating from the crack guidelines in most cases (which certainly seems plausible), the Doe decision to follow the guidelines would actually exacerbate disparity rather than minimize it.
Unless the USSC no longer stands by its "unanimous" and "firm" conclusions in its 2002 report that "various congressional objectives can be achieved more effectively by decreasing substantially the 100-to-1 drug quantity ratio," I have a hard time understanding why the latest set of guideline amendments do not seek to implement the USSC's proposed 20-to-1 ratio. Some (many? most?) federal judges are already applying that ratio. The USSC's failure to seek to codify this improved ratio in the guidelines serves only to ensure additional post-Booker disparities in drug sentencing. At the very least, the USSC ought to explain why it is not acting on the crack guidelines. Silence simply breeds distrust and disrespect for the Commission's (non)efforts (and also leads to obnoxiously critical blog posts like this one).
Could (and should) the Enron trial impact Jamie Olis resentencing?
As documented by posts here and here over at How Appealing, the big (non-Alito) legal story for the coming week is the start of the criminal trial for former Enron executives Ken Lay and Jeff Skilling. Though there are lots of potential sentencing angles to the Enron story, this morning I have been pondering whether the trial perhaps could (or should) impact the future resentencing of Jamie Olis, the former Dynegy executive whose sentencing status remains uncertain since his 24-year prison sentence was reversed by the Fifth Circuit a few months ago. (Lots of background on the Olis case can be found here and here.)
As detailed in this Houston Chronicle profile, the federal judge presiding over the Enron trial, Judge Sim Lake, is the same judge who first sentenced and now must resentence Jamie Olis. I am inclined to speculate that the shadow of the coming Enron trial perhaps influenced Judge Lake to postpone Olis's resentencing earlier this month, and to further speculate that developments in the Enron trial might consciously and unconsciously impact Judge Lake's consideration of the many tough sentencing issues that the Olis case presents. Adding intrigue, of course, is the fact that Enron developments could influence Judge Lake to go tougher or to go easier on Jamie Olis the second time around.
Blogging from death row
On Friday, The Washington Post ran this story and the Baltimore Sun ran this story about Maryland death row defendant and blogger Vernon Lee Evans. The Post story describes Evans as an "amateur advice columnist and convicted murderer," who is "one of the very few death row inmates to have a blog and, activists say, perhaps the only condemned man worldwide to use a blog to take questions from readers." As the article explains, "activist Ginny Simmons started the blog in March and relayed the questions to Evans, who does not have Internet access."
The death-row blog, entitled "Meet Vernon" and available here with this introduction, had been silent since last May. However, a new execution date set for next week has led to this recent Q&A post, which has generated these notable comments.
As documented by this story about a protest at the Maryland capital yesterday, the pending Evans execution is making headlines beyond the defendant's status as a blogger. In addition, as this article details, the on-going debate and uncertainty about lethal injection procedures (background here and here) could also impact the Evans case.
UPDATE: Anyone closely following the trials and tribulations surrounding the legal status of executions via lethal injections should check out this St. Petersburg Times article.
Contrasting perspectives on the post-Booker world
Two items in the morning newspapers highlight how perspectives on long sentences and the concept of disparity necessarily color any assessment of the post-Booker world of federal sentencing:
- This commentary from The Tennesseean reviews the findings of the Sentencing Project in its recent report "Sentencing with Discretion: Crack Cocaine Sentencing After Booker" (discussed here). The commentary concludes by asserting that the Sentencing Project's report "shows that the Booker ruling is a positive and workable step," but that "there's still work to be done in bringing in line the punishment disparity between trafficking crack cocaine and powder cocaine."
- This article from The Republican reports on a recent sentencing in Massachusetts in which a federal prosecutor "told U.S. District Court Judge Michael A. Ponsor that he and other members of the federal law enforcement community are frustrated with the number of times in the last year Ponsor has given sentences below federal sentencing guidelines." The article details that Judge Ponsor imposed a 16-year sentence, which was below the 30-year guideline sentence sought by the prosecution in the name of avoiding disparity.