January 31, 2006
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.