December 30, 2006
Strong editorial against residency restrictions
This morning's New York Times brings this editorial weighing in against sex offender residency restrictions. Here are some highlights:
Of all the places that sexual predators could end up after prison, the worst is out of sight, away from the scrutiny and treatment that could prevent them from committing new crimes. But communities around the country are taking that risk, with zoning laws that banish pedophiles to the literal edges of society.
There is a powerful and wholly understandable impulse behind laws that forbid sex offenders to live within certain distances of schools, day care centers and other places that children gather. Scores of states and municipalities have created such buffer zones, then continued adding layer upon layer to the enforcement blanket....
The unintended consequence is that offenders have been dispersed to rural nowhere zones, where they are much harder to track.... Many offenders respond by going underground. In Iowa, the number of registered sex offenders who went missing soared after the state passed a law forbidding offenders to live within 2,000 feet of a school or day care center. The county prosecutors' association has urged that the law be repealed, for the simple reasons that it drives offenders out of sight, requires "the huge draining of scant law enforcement resources" and doesn't provide the protection intended....
The problem with residency restrictions is that they fulfill an emotional need but not a rational one. It's in everyone's interest for registered sex offenders to lead stable lives, near the watchful eyes of family and law enforcement and regular psychiatric treatment. Exile by zoning threatens to create just the opposite phenomenon — a subpopulation of unhinged nomads off their meds with no fixed address and no one keeping tabs on them. This may satisfy many a town's thirst for retributive justice, but as a sensible law enforcement policy designed to make children safer, it smacks of thoughtlessness and failure.
Some related posts:
Swift capital justice for Saddam
At CNN.com here, there is lots of coverage of the execution of Saddam Hussein (including video of the noose being placed around Hussein's neck). Here is how the lead article begins: "Defiant to the end, Saddam Hussein mocked Shiite cleric Muqtada al-Sadr moments before he was hanged, a witness said Saturday. The Iraqi government executed Hussein as punishment for his conviction of a 1982 massacre, more than two decades before he was toppled by a U.S.-led invasion."
For some blogosphere coverage, check out TalkLeft and Althouse and Instapundit. My own reaction is to wonder whether all the US states struggling with lethal injection protocols might start seriously talking about hanging as an alternative.
UPDATE: A helpful reader has sent me US District Judge Kollar-Kotelly's interesting little opinion (available below) denying Saddam Hussein's application to stay his execution. The opinion concludes that "this Court is without jurisdiction to entertain his petition for a writ of habeas corpus."
December 29, 2006
Top 10 sentencing stories from 2006
Generally speaking, 2006 was a much calmer year for sentencing developments than 2004 (discussed here) and 2005 (reviewed here and here). Nevertheless, the year brought plenty of eventful sentencing stories, and below I provide my take on the top 10.
10. The paucity of "tough-on-crime" politicking. Reports of rising crime rates and a Republican party with few good election themes had me expecting "tough-on-crime" political rhetoric throughout the election season. But this political dog did not bark, perhaps because Democrats have been consistently "tough" or perhaps because Republicans have found a new prison religion.
9. Continued rise in US incarceration. Though the politics of crime may no longer be out-of-whack, the impact of 20 years of tough-on-crime attitudes continued to be seen in record incarceration rates and overcrowded prisons in state after state. In California, the situation has gotten so bad, some sensible reform might even emerge (details here and here).
8. High-profile white-collar sentencings. Defendants Jack Abramoff, Bernie Ebbers, Andrew Fastow, Jamie Olis, George Ryan and Jeff Skilling all made sentencing headlines this year. Interestingly, Andrew Fastow and Jamie Olis got the same sentence, but the others' sentences were all over the map (and Ken Lay missed the sentencing fun by dying). White Collar Crime Prof Blog has other related year-end highlights here.
7. Continued decline of death. As perhaps spotlighted by Moussaoui escaping the death penalty, there was more mounting evidence that the death penalty is continuing to die a slow death. In 2006, there was another reduction in the number of death sentences and in the number of executions. (This DPIC report covers this story from all the angles.)
6. More discussion of executive clemency. Though notably grants of clemency remained rare in 2006, clemency issues continued to garner much attention. Ken Starr played a high-profile role in a California clemency request, Maryland's out-going governor keep using this historic power. Also, chief executives in Ohio, South Dakota, and Virginia put off scheduled executions for various reasons.
5. Stability in Supreme Court Sixth Amendment doctrine. The addition of two new Justices could have prompted another round of Apprendi mania. But, after 2004 brought Blakely, and 2005 brought Booker, 2006 lacked a major Sixth Amendment ruling because the Justices avoided cert on various issues and disposed of cases like Recuenco in disruption-avoiding ways. However, as #3 below spotlights, 2006 may have been the calm before the storm...
4. Stability in the federal sentencing system. Nearly everyone (except me) predicted that Congress would respond legislatively to Blakely and Booker. But, despite some posturing about a Booker fix, the Booker remedy remained in place as circuits resolved an array of post-Booker sentencing questions (almost always against defendants). However, as #3 below spotlights, 2006 may have been the calm before the storm...
3. Brewing instability for 2007. The Supreme Court is poised to issue a number of major sentencing rulings in the first half of 2007. Cunningham could (and likely will?) greatly impact the application of Blakely in the states (details here), and Claiborne and Rita could (and likely will?) greatly impact the application of Booker in federal courts (details here). In addition, at least a few elected officials in other branches seem eager to disrupt some sentencing status quos.
2. More sex offender mania and some pushback. The severity and creativeness of sentencing for sex offenders reached new heights in 2006. This category archive and the new blog Sex Crimes document that nearly every jurisdiction in the country was dealing with legislation or litigation involving sex offenders. And though getting tougher remained the chief talking point, concerns about the impact of broad residency restrictions or severe mandatory sentences started to garner more attention.
1. The lethal injection scrummages. Karl Keys here provides a great account of "The Year of the Needle," and DPIC has kept this page updated with all the latest lethal injection developments. In practical terms, lethal injection problems have disrupted the application of the death penalty far more than innocence concerns or any other issue. The Supreme Court jump started this issue in January through its work in Hill v. Crosby, and December brought moratoria in the two states — California and Florida — with the largest death rows. In addition, nearly a dozen other jurisdictions have had executions blocked or delayed because of lethal injection issues.
Whew! Quite a year. Thoughtful readers, did I forget anything?
Ninth Circuit rings out 2006 with en banc bonanza
As Howard Bashman details here, Ninth Circuit has closed out 2006 by granting rehearing en banc in four separate cases. It appears that all four involve criminal issues, and in the bunch is Comer v. Schriro (panel ruling here) the case in which September a split panel rejected a competent Arizona inmate's decision to abandon legal challenges to his death sentence (background here; commentary here).
Third Circuit karate chops the parsimony provision [update: and so does the Fourth Circuit]
I wonder what Bruce Lee might think about how the Third Circuit entered the Dragon. A Third Circuit panel today in US v. Dragon, No. 05-4906 (3d Cir. Dec. 28, 2006) (available here) gives the parsimony provision of § 3553(a) the Kung Fu treatment in the course of affirming an within-guideline sentence near the top of the calculated guideline range. Here's the key nunchaku blow that the Dragon panel gives to the defendant's argument that the parsimony provision at least called for a sentence at the bottom of the applicable guideline range:
Following the reasoning set forth in Cooper, we have rejected an argument that the District Court is required to articulate "why a low-end Guidelines-range sentence . . . was insufficient to meet § 3553(a)(2)'s penological goals." Id. at 833. To this end, we hold that district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in § 3553(a)(2). We note that the First Circuit considered this issue and reached the same result in United States v. Navedo-Concepcion, stating, "we do not think that the 'not greater than necessary' language requires as a general matter that a judge, having explained why a sentence has been chosen, also explain why some lighter sentence is inadequate."
So, to review, after Booker district courts must still precisely and accurately calculate advisory guideline ranges, but they need not explain how their sentences comply with the one mandatory directive that Congress set forth in § 3553(a). Might one suggest this is another example of activist judges putting their policy preferences over the express text enacted by Congress?
UPDATE: In a similar ruling, the Fourth Circuit in US v. Smith, No. 06-4358 (4th Cir. Dec. 28, 2006) (available here) has also kept the parsimony provision from having a clear consequential impact on post-Booker sentencing outcomes. Here are the parsimony highlights in Smith:
Smith contends that this court's holding in United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) — that sentences within a properly calculated guidelines range are "presumptively reasonable" — requires that a district court always sentence a defendant to the lowest term within the relevant guidelines range. Accordingly, Smith maintains that the district court erred when it sentenced him to 180 months instead of 151 months, which was the lowest possible sentence in the applicable guidelines range of 151-188 months.
In Green, we also instructed district courts to consider the factors set forth in 18 U.S.C. § 3553(a) when imposing a sentence. Id. at 455. That provision requires that a court "impose a sentence sufficient, but not greater than necessary," to achieve the sentencing goals outlined in the statute. 18 U.S.C. § 3553(a). Smith reads Green's "presumptively reasonable" holding in tandem with this portion of § 3553(a) to require district courts to sentence defendants to the lowest end of the applicable guidelines range. Smith argues that under Green all of the available sentences within a properly calculated guidelines range are presumptively reasonable. Thus, according to Smith, the lowest sentence within the presumptively reasonable range is "sufficient" to comply with § 3553(a)'s sentencing goals, and all other sentences within the range are "greater than necessary" and therefore unreasonable.
Smith's argument, while clever, has no merit. The holding in Green that a sentence within the properly calculated guidelines range is presumptively reasonable does not mean that the sentencing judge must conclude that the lowest possible sentence within that range is actually sufficient to satisfy § 3553(a)'s goals. Rather, Green requires a district court to calculate the appropriate guidelines range, and then to consider the factors outlined in § 3553(a) to determine which sentence within that range, if any, is sufficient, but not greater than necessary, to comply with § 3553(a). Smith's argument thus rests on a logical fallacy: the fact that a sentence at the lowest end of the guidelines range could be reasonable if the sentencing judge concluded it was sufficient does not mean that the sentencing judge must conclude that it is sufficient. It is the sentencing judge who must initially determine what is sufficient. To hold that the lowest sentence in an applicable guidelines range is always sufficient would rob § 3553(a) of its force.
Sixth Circuit affirms above-guideline sentence in TSA case
The Sixth Circuit today in US v. Ahmed, No. 05-2319 (6th Cir. Dec. 29, 2006) (available here), affirms a sentence where the guidelines called for a sentence of 0 to 6 months, but the district judge imposed 18 months' imprisonment. Here is the notable context from the start of the court's opinion:
Sadeq Ahmed was indicted on two counts of making false statements in violation of 18 U.S.C. § 1001(a)(2), based on written answers he gave about his employment history as part of his background investigation for a baggage screener position with the Transportation Security Administration (TSA). After a jury trial resulted in guilty verdicts on both counts, the district court sentenced him to 18 months of imprisonment. Ahmed now appeals his conviction, alleging insufficiency of the indictment and evidentiary errors; and his sentence, alleging that the district court’s imposition of a sentence above the guidelines range was unreasonable. We affirm.
On appeal, Ahmed complained that "his unpopular speech was impermissibly considered as a factor" to increase his sentence. But the Sixth Circuit panel summarily dismissed any First Amendment concerns. I wonder what the gurus at The Volokh Conspiracy might think of that.
Death penalty around the blogosphere
There are too many death penalty stories these days for me to keep up. Fortunately, TalkLeft has this post on Saddam Hussein's execution timeline, and the death penalty bloggers at ODPI and Capital Defense Weekly have not slowed down during the holiday season.
Of particular note from ODPI is this item discussing an execution date set for a "volunteer" on Ohio's death row. As detailed in posts here and here and here, death penalty administration is already chaotic in Ohio; an execution date for a "volunteer" will likely only complicate matters even more.
First circuit says acquitted conduct enhancements still fine
In a cursory opinion, the First circuit in US v. Gobbi, No. 06-1643 (1st Cir. Dec. 28, 2006) (available here), rules that even after Booker acquitted conduct, if "proved to the sentencing court by a preponderance of the evidence, may form the basis of a sentencing enhancement." As AL&P notes here, the "analysis is disappointing, since it just refers to pre-Booker caselaw."
The Gobbi has me thinking again about my sincere questions about acquitted conduct. It also makes me proud again of the far more thoughtful work done by district courts on acquitted conduct after Booker in cases like Ibanga (discussed here) and Pimental (discussed here) and Coleman (discussed here).
December 28, 2006
Capital case complications for SCOTUS
Lyle Denniston has this post at SCOTUSblog, entitled "Uncertainty on Texas death penalty cases," which follows up on Howard Bashman's post here about the interplay of the Fifth Circuit and the Supreme Court in a set of capital cases. Here's how Lyle's post begins:
For more than a quarter of a century, the Supreme Court and the courts that review Texas death penalty cases have been carrying on a not-always-cordial exchange over the jury's role in weighing evidence that defense lawyers offer to try to head off capital punishment in that state. After four prior decisions on the subject, the Court agreed in October to step back into the controversy to try once more to resolve it. The Court has scheduled back-to-back hearings on the new cases for Jan. 17. Now, a series of developments in the Fifth Circuit Court is complicating this new review.
Two notable prior conviction rulings from the land of Blakely
A helpful reader has altered me to two significant rulings today from the Washington State Supreme Court about the scope of the "prior conviction" exception to the Apprendi-Blakely rule. Here is her report:
1. Washington v. Jones, No. 76900-1 (Wash. Dec. 28, 2006) (available here) (7-2 decision): The Washington State Court of Appeals "reversed the trial courts, holding that under Blakely v. Washington and Apprendi v. New Jersey, the jury, rather than the sentencing judge, must find that the defendant was on community placement before the sentencing judge may add a point to the offender score. We [the Washington State Supreme Court] granted review and conclude that because community custody is directly related to and follows from the fact of a prior conviction and that the attendant factual determinations involve nothing more than a review of the nature of the defendant's criminal history and the defendant's offender characteristics, such a determination is properly made by the sentencing judge. Therefore, we reverse the Court of Appeals and uphold the sentences imposed on Jones and Thomas."
2. Washington v. Weber, No. 77395-5, (Wash. Dec. 28, 2006) (available here) (5-4 decision): "We hold that prior juvenile adjudications fall under the 'prior conviction' exception in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and are not facts that a jury must find under Blakely v. Washington, 542 U.S. 296 (2004)."
As the dissents in both cases highlight, neither of these two rulings are obvious applications of the "prior conviction" exception. And, of course, Justice Thomas believes that the "prior conviction" exception ought to be eliminated altogether. For these reasons, these two cases might make for interesting cert vehicles if the Supreme Court is prepared to return in this part of Apprendi-land.
This category archive has a lot more on the "prior conviction" exception and its validity and scope.
December 28, 2006 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (1) | TrackBack
Another ugly day in the Eighth Circuit for defendants
The Eighth Circuit continues to play bad Santa; with new opinions today, the circuit has now ruled against criminal defendants in nearly a dozen cases this holiday week. Two sentencing rulings today are especially telling:
- in US v. Left Hand Bull, No. 06-2133 (8th Cir. Dec. 28, 2006) (available here), a panel readily approves an upward departure that nearly doubles the defendant's sentence by finding a guideline mistake by the district court to be "a harmless error."
- in US v. Plaza, No. 06-1762 (8th Cir. Dec. 28, 2006) (available here), a different panel vacates a below-guideline sentence because the "district court failed to follow the proper sentencing procedure." Why this failing should not be deemed "a harmless error" is not at all clear.
A notable example of three-strikes laws being subject to negotiation
The blogosphere is justifiably buzzing about People v. Zachary, No. C051431 (Cal. Ct. App. Dec. 27, 2006) (available here), a case in which a California trial court, at a change of plea proceeding, stated, "Oh that's right. You can't offend the kangaroos up there in kangaroo court." Many bloggers (here and here and here and here and here) have already made numerous interesting observations about how the
kangaroos appellate judges reacted in the Zachary opinion.
What I found the most interesting about Zachary was the legal context that led to the marsupial melee. The defendant in Zachary was apparently subject to California's three-strikes law and a 25-to-life imprisonment sentence, but he engineered a plea deal to get only a six-year sentence. The kangaroo comments emerged because the defendant and the trial court were apparently concerned that an appellate court might question whether such a plea deal was appropriate.
Judge Gertner clarifies her work...
In this post titled "Judge Gertner takes on the career offender guidelines," I noted Judge Nancy Gertner's latest sentencing opinion, which prompted some interesting comments. Judge Gertner has now followed up with this e-mail to me:
Your snippet is wrong... and your responders have gone off in the wrong direction.
I don't "take on the guideline" per se as in the crack cocaine guideline situation. I am saying that there are limitations in the career offender guidelines (that the Commission recognized, in the 15 year report, that courts have recognized in the departure rate) and as such they are woefully over inclusive... There may be cases in which they are applicable and perfectly reflect the purposes of sentencing and cases in which they are not.
In a sense, I am setting up a Booker analysis --- in this individual case they ARE wrong. The results in the individual cases were tied to codefendant disparity, to proportionality i.e. the three career offenders included a supplier, and a gofer, all at the same range, to the age of the defendant (one was 79! ). In other words, the results were keyed to the individual case. I just wanted to understand why -- what about the guideline -- led to these inappropriate results.
December 27, 2006
Seeking balanced scholarly wisdom on lethal injection mess
As part of a year-end review of the death penalty in 2006, Karl Keys here provides a fairly comprehensive account of "The Year of the Needle." Also, DPIC has kept this page updated with all the latest lethal injection developments. Both resources have me wondering when we will start seeing extended scholarly analyses of all the lethal injection brouhaha.
As we enter 2007, lethal injection issues have resulted in moratoria on executions in the two states — California and Florida — with the largest death rows. In addition, nine other jurisdictions — Arkansas, Delaware, Kentucky, Maryland, Missouri, New Jersey, Ohio, South Dakota and the federal system — have had executions blocked or delayed because of lethal injection issues. Not surprisingly, most death penalty abolitionists have celebrated these developments, while death penalty proponents have been troubled that the chance a condemned murder might suffer pain while being executed has brought capital punishment to a near stand-still nationwide.
Responding in part to the Supreme Court's contribution to this mess with its ruling in Hill v. Crosby, I wrote an article on lethal injection development for the Cato Supreme Court Review. Entitled "Finding Bickel Gold in a Hill of Beans," I urged Congress and state legislators to do more to clean up the lethal injection mess. (I've also blogged on these themes in posts here and here and here.)
Perhaps because legislatures have not listened to my scholarly suggestions, I am now wondering when other scholarly voices will start expounding balanced wisdom on all the lethal injection developments. (Of course, Debby Denno has written a lot in this area in the past, as detailed here and here, but I do not think she's written yet on 2006 developments.) The extreme views of partisans are generally well-known in this arena, but I am eager to hear what others in the ivory tower make of all the lethal injection goings-on. Perhaps lawyers, judges and lawmakers scrambling on the ground in numerous states would also be eager for more scholarly insights.
PDs looking for a little blogosphere respect
This afternoon I received this heart-felt e-mail from a fellow blogger:
Recently there have been a slew of awards for legal blogs, the most recent being the Blawg Review Awards. The only thing the various awards had in common is that they completely ignored public defender blogs. It is something public defenders are used to, of course, being what one PD blogger described as "the dirt of the profession."
Last February I began the Public Defender Stuff blog to publish news involving public/indigent defense, and to bring together the incredibly diverse blogs of public/indigent defenders. That led to the creation of the PD Blog Guide and a daily listing of every PD blogger who has posted since the previous day's listing. Now, in response to what Blawg Review has already described as an unfortunate oversight, Public Defender Stuff is hosting the inaugural Public Defender Blog Awards.
If you could find it in your heart to throw some poor bloggers a bone, would it be possible to mention the awards on Sentencing Law and Policy? The link above will take you (and your readers) to the ballot, and voting is open until January 5. Thank you very much for your consideration.
Rough holiday week for defendants in the Eighth Circuit
Criminal defendants rarely get presents from the Eighth Circuit, but this holiday week has been especially tough for them. Over the last two day, the circuit has ruled against defendants in more than a half-dozen cases. Perhaps the most brutal of the bunch is US v. McMorrow, No. 06-2411 (8th Cir. Dec. 27, 2006) (available here); the panel decision affirms a sentence increased from 140 months to 360 months after a Booker remand for resentencing.
Sixth Circuit rejects discovery for selective prosecution claim
Though not quite a sentencing issue, the Sixth Circuit's ruling today in US v. Thorpe, No. 05-2220 (6th Cir. Dec. 27, 2006) (available here), should interest anyone concerned about the intersection of federal criminal law and race. Here is the introduction from the ruling:
A federal grand jury in the Eastern District of Michigan indicted James Thorpe for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Thorpe, an African-American, moved to dismiss the indictment on the ground that he was being selectively prosecuted because of his race. After conducting a preliminary investigation in support of his claim, Thorpe formally moved the district court for discovery of all of the government's files regarding the Project Safe Neighborhoods (PSN) program under which Thorpe was being prosecuted.
The court granted Thorpe's motion, reasoning that Thorpe could not support his selective-prosecution claim without the requested materials and that the harm to the government, which had already disclosed some of the requested materials to another judge in a different case, would be minimal. When the government refused to fully comply with the district court's discovery order, the court dismissed with prejudice the indictment against Thorpe. For the reasons set forth below, we REVERSE the judgment of the district court granting Thorpe's discovery motion, REINSTATE the government's indictment against Thorpe, and REMAND the case to the district court for further proceedings consistent with this opinion.
Two more notable Booker wins for the government
There is nothing especially notable about the government prevailing in a sentencing appeal after Booker; post-Booker statistics show that the government prevails on reasonableness review in the circuits roughly 99% of the time. Nevertheless, two rulings yesterday are notable because of their facts and discussion of the applicable law.
From the Tenth Circuit, US v. Mateo, No. 05-2266 (10th Cir. Dec. 26, 2006) (available here), affirms a huge upward variance, affirming a sentence of 120 months up from a guideline range of 15 to 21 months. Mateo reviews the circuit's post-Booker rulings at length; among many notable aspects is a concurrence by Judge Murphy complaining about the guideline-centric nature of the circuit's approach to reasonableness review. Both defendants and Orwell fans should like this passage from the concurrence:
Nothing in either Booker or the plain text of § 3553(a) indicates that the sentencing factors relating to the Sentencing Guidelines have primacy over the sentencing factors not relating directly to the Guidelines. Under this circuit's precedents, however, some of the statutory sentencing factors are apparently more equal than others.
From the Eleventh Circuit, US v. Bohannon, No. 05-16492 (11th Cir. Dec. 26, 2006) (available here), also reviews circuit rulings on reasonableness review in the course of affirming a long sentence over the defendant's objections. Technically, a below-guideline sentence was at issue in Bohannon, but the facts highlight how easily a guideline sentence can be doubled through the alchemy of relevant conduct allegations.
Judge Gertner takes on the career offender guidelines
The holiday season has not kept US District Judge Nancy Gertner from completing her latest Booker opus, US v. Ennis, No. 03-cr-10298 (D. Mass. Dec. 21, 2006) (available below). In Ennis, Judge Gertner assails the application of the career offender guideline, and here is one of many choice snippets:
This memorandum will address why in the sentencing of three defendants ... who qualify as "career offenders" under the United States Sentencing Guidelines after United States v. Booker, 543 U.S. 221 (2005). Many courts, while announcing that the Guidelines are advisory, are in fact following them nearly as rigorously as they had before Booker. Under the circumstances, it is especially important to spell out the legal limitations of the career offender guidelines, in general, and in their application to these cases, in particular. Let me be clear: If I choose not to follow the career offender guidelines in the case of these defendants, it is not because I simply disagree with them and chose to substitute my own idiosyncratic philosophy of sentencing. It is because the career offender guidelines as applied to the cases at bar are wholly inconsistent with the purposes of sentencing in 18 U.S.C. § 3553(a).
Reflections on capital clemency petitions
Last month, as detailed here, I participated in a workshop at Harvard Law School designed to culminate in a book to be published by NYU Press in late 2007. The book brings together a diverse group of authors addressing the topic that will be the title of the work, "When Law Fails: Making Sense of Miscarriages of Justice."
Though I won't have my draft chapter ready for prime time until next month, Austin Sarat has sent along his chapter and has allowed me to post it here. His chapter is entitled "Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State," and can be downloaded below.