February 11, 2006
California has gendered alternative to prison as mass incarceration bills come due
The Los Angeles Times today has this terrific article about plans in California to "move 40% of the state's female inmates out of their cells and into neighborhood correctional centers." The article is packed with fascinating information about women offenders and the state of corrections in the nation's biggest state. Here are snippets from a must-read article:
The plan, most of which requires legislative approval, reflects a growing consensus among experts nationally that female inmates are ill served by a one-size-fits-all correctional system designed for violent men. If adopted, the initiative would make California a leader among states remaking prison systems to reflect differences between the sexes.
The proposal also offers the state a way to ease the severe overcrowding plaguing the $8.1-billion correctional system. With the total inmate population at an all-time high of 168,000 — enough to fill Dodger Stadium nearly three times — tensions on cellblocks are rising and wardens are wedging convicts into gyms, TV lounges, even hallways. Almost every prison is packed to twice its intended capacity....
The large majority of female prisoners — about 66% — are serving time for nonviolent crimes, with an average stay in state custody of 13 months.... Like other states, California has seen a steady increase in its female inmate population and now houses 11,400 women — almost twice the number in 1990....
Officials said the typical inmate qualifying for neighborhood placement would be serving a sentence of less than a year for a crime such as forgery, burglary, auto theft, drug possession or sale, or driving under the influence.... An overriding goal of the policy change is to keep inmates more closely connected to their families, a link known to decrease the odds that an offender will commit crimes again.... Although the expense of housing women in neighborhoods would be lower than prison costs, the expanded services they receive would initially consume any savings.
A registry for meth offenders?
Sex offender registries are in place in nearly every state and are now nationally coordinated (details here and here), Mike Coan, a Georgia state representative, brings a new spin to the registry idea through this commentary:
Sex offenders ... must register with the state Department of Corrections. Residents can check a Web site to find out whether sex offenders live in their ZIP code. With the growing problem of methamphetamine abuse and crimes related to it, we must now take the same steps to "out" offenders who bring this dangerous drug into our communities. That's why I have introduced legislation to create the Methamphetamine Offender Registry, which would be administered by the Georgia Bureau of Investigation....
The registry is necessary because the production, distribution and use of this powerful street drug is the source of so much crime, ranging from robbery, theft, forgery, child abuse and neglect to a host of violent offenses.... Just as sex offenders do irreparable harm to children, meth abusers also harm innocent children. The addiction to this street drug is so powerful that addicts neglect their families, spend all their wages buying meth and behave extremely erratically, sometimes abusing children and spouses....
Information is power, and when residents have the ability to find out who lives in their community — whether it is a sex offender or a meth offender — they can make better decisions about how they live their lives. Gov. Sonny Perdue has declared meth abuse to be perhaps the worst scourge on Georgians of all income levels today. I believe a meth registry is one more step we can take to help combat this problem.
UPDATE: Gideon here at a Public Defender notes this interesting report from Connecticut, which discusses registry laws and notes that Kansas, Montana, and Oklahoma require violent offenders to register. Gideon asks: "Why not require all offenders to register?"
Giving clemency a black eye in California
In this recent post, I noted the ugly sparring in the clemency papers submitted to Governor Arnold Schwarzenegger in the Michael Morales case. But, as detailed in stories from the AP, from the Los Angeles Times, and from the San Francisco Chronicle, the ugliness has reached new heights:
State and local prosecutors said Friday that former Whitewater independent counsel Kenneth Starr and another lawyer representing a death row inmate submitted to the governor forged letters from jurors who were falsely portrayed as wishing the condemned man would be spared.
The news articles provide basic background on this remarkable development and its possible impact on Morales' scheduled execution (which, as detailed here, might be delayed because by his lethal injection litigation). Available for download below is a length press release from he San Joaquin County District Attorney's Office which asserts that Morales' clemency materials contain many separate false and forged statements from jurors and a witness. Only in Hollywood!
UPDATE: Perhaps unsurprisingly, as evidenced here and here and here, Ken Starr's involvement in this clemency ugliness is drawing attention throughout the blogosphere. Also, Howard Bashman has more coverage at this link.
ANOTHER UPDATE: Mike at Crime & Federalism has a great take on this brouhaha.
Sentencing triple salchow from the Seventh Circuit
After watching the opening ceremonies, I have Olympic fever (which this great NBC Olympics site and this "official" blog will aggravate). Consequently, everyone should prepare for (silly? bad?) Olympic phrases in some posts.
A decision yesterday from the Seventh Circuit in US v. O'Neill, No. 04-2589 (7th Cir. Feb. 10, 2006)(available here), allows me to start with my favorite skating term, the triple salchow. In O'Neill, the Seventh Circuit panel splits three ways in reviewing a long guideline sentence in which the district court refused to give the defendant credit for his cooperation as urged by the prosecution. The three separate opinions from the judges jump to different issues and spin around in all directions, culminating in a ruling that, I think, requires resentencing before a new judge. I think, especially under the new scoring system, the Seventh Circuit should lose some points for poor technique in O'Neill.
February 10, 2006
Review of Booker's impact and white-collar sentencing
A helpful reader sent me to this article from the ABA Journal, which discusses the Jamie Olis resentencing and ways in which Booker and other factors are leading to a reconsideration of loss calculations in federal guideline sentencing. Here are a few snippets from a good read:
Harsh prison terms for Olis and other corporate criminals are getting a second look, as is the guidelines' usefulness in cases where the amount lost drives up sentences almost to the exclusion of other factors... [B]usiness interests are complaining that in some instances white-collar punishments don't fit the crimes. And courts are beginning to listen.
Critics say the guidelines simply aren't up to the job of arriving at reasonable sentences because the extent of the loss often dwarfs other sentencing considerations that may favor leniency. They also argue that the government provides unrealistic loss estimates that sometimes effectively lay all blame for major corporate wrongdoing at the feet of relatively minor defendants.
Related posts with more background on the Jamie Olis case:
- Will it be a happy new year for Jamie Olis?
- Government arguing for 15+ years for Jamie Olis
- Attorneys for Jamie Olis urging a 5-year cap for resentencing
- Are the federal guidelines too tough on white-collar offenders?
February 10, 2006 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Ninth Circuit (en banc) approves acquitted conduct enhancement
The Ninth Circuit today in US v. Lynch, No. 02-30216 (9th Cir. Feb. 10, 2005) (available here), at the end of a long en banc opinion focused on jurisdictional issues, provides a disconcertingly rote endorsement of the use of acquitted conduct to support a sentence enhancement. Here is the full text of the en banc court's per curiam sentencing discussion in Lynch:
The district court imposed a twenty-year sentence on Lynch for the Hobbs Act offense (Count I). In a special interrogatory the jury determined that the government had failed to prove beyond a reasonable doubt that Lynch had murdered Carreiro. However, the district court found by clear and convincing evidence that Lynch had participated in the murder and therefore cross-referenced United States Sentencing Guidelines Manual (U.S.S.G.) § 2A1.1, the first-degree murder guideline, as required by U.S.S.G. § 2B3.1(c)(v).
The Supreme Court has held that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge. United States v. Watts, 519 U.S. 148, 157 (1997). In this case, Lynch was not found innocent of a charge of murdering Carreiro. In response to the special interrogatory, the jury merely found that they did not unanimously agree that the government had established Lynch's murder of Carreiro by proof beyond a reasonable doubt. It was therefore not error for the court to make its own finding in sentencing Lynch.
In this circuit, when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction, the government must prove such a factor by clear and convincing evidence. United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999). Since the use of the enhancement in this case increased the sentencing range by 105 to 203 months, the clear and convincing standard applied. There was sufficient evidence for such a finding by the district court and the defendant does not challenge the sufficiency of that evidence for the clear and convincing finding. There was no error in the court's use of the first degree murder cross reference.
I describe this discussion as "disconcertingly rote" because I am left to wonder whether or how Blakely and Booker were considered by the Ninth Circuit. As detailed here and here and here, more than a few district judges have held that Blakely and Booker cast great doubt on Watts and the use of acquitted conduct at sentencing. Even if the Ninth Circuit does not find these arguments compelling, it ought to have discussed Blakely and Booker before endorsing judicial sentencing enhancements based on offense facts that have been affirmatively rejected by a jury (albeit with a higher standard of proof).
Sorting through Blakely error and Recuenco
I have be wailing for a long time about the many post-Blakely and post-Booker questions that I think merit the Supreme Court's attention (which in part accounts for my kvetching again and again about SCOTUS taking so many death penalty cases). Thus, you'd think I'd be happy that SCOTUS, as detailed in a series of posts from last October (here and here and here), granted cert in Washington v. Recuenco to explore whether Blakely errors can be subject to harmless-error analysis. However, because of the nature of the Recuenco issue and its procedural posture, it seems that SCOTUS has selected a case (from a cert pool filled with many pressing Blakely/Booker issues) that could engender more confusion than clarity.
Recuenco could make the post-Blakely world even messier because the defendant's brief (available here) argues that harmless-error review "is impossible here because of an unusual circumstance under state law." In other words, the defendant (who prevailed below) seems to be contending that the Supreme Court ought to just dismiss Recuenco as improvidently granted. And, because the defendant has uber-SCOTUS-litigant Jeff Fisher on his team, one can expect the Court will give careful consideration to the idea that it ought to just make the case go away.
"But not so fast," says Steven Sanders in a forthcoming article in the New Jersey Lawyer, which carries the terrific title "Is Washington v. Recuenco a Big Fat Dud?". Steve argues in this article that any argument suggesting that SCOTUS "should decline to resolve a question of immense importance to prosecutors and defense attorneys alike ... is fundamentally misguided." Available for download below, Steve's short article provides a useful primer on Recuenco and leads me to the conclusion that, no matter what SCOTUS does, the case could well engender even more post-Blakely confusion.
UPDATE: Steve has produced a slightly revised version of his article (as of Feb. 17, 2006), which is available below:
And the lethal injection litigation played on...
The latest news comes from California: this article reports that a "federal judge on Thursday suggested he may be willing to postpone California's next scheduled execution later this month so he can hold a full-blown evidentiary hearing to consider a constitutional challenge to the state's lethal injection procedure." Additional reporting on today's hearing in the Morales case, which is making headlines for other reasons as well, can be found in this AP story.
Meanwhile, this AP article provides a partial update on another one of the scrummages over the constitutionality of lethal injection. The article details that, a week after a Missouri death row defendant's execution was stayed, the Eighth Circuit has now clarified that his lethal injection challenge now "rests with a three-judge appeals panel."
For a very clear and effective review of all the lethal injection scrummages (which I cover here and here), check out this fine article from Charles Lane in Friday's Washington Post entitled, "Supreme Court Puzzles Some With Mixed Answers on Lethal Injection."
February 9, 2006
Might the NSA kerfuffle and the AG's Senate showing impact any brewing Booker fix?
Jack Balkin provides this comical account of AG Alberto Gonzales' testimony before the Senate Judiciary Committee concerning the Bush Administration's eavesdropping programs. But this editorial about the sparring between Gonzales and Republicans raises the serious question of whether the AG in the NSA kerfuffle may be greatly damaging his credibility — and thus impacting his ability to argue effectively for a legislative "Booker fix".
As the editorial notes, Gonzales' testimony created a "skeptical bloc of committee Republicans — the chairman, Arlen Specter, Pa.; Lindsey Graham, S.C.; Mike DeWine, Ohio; and Sam Brownback, Kan." These are folks whom, I believe, would be critical voices and votes in any future legislative debate over new sentencing legislation that the Justice Department might seek. Especially important would seem to be Committee Chair (and former prosecutor) Arlen Specter, who had this reaction to what Gonzales was saying:
Specter said the administration's reading of the law "just defies logic and plain English." He was even sterner later when he said of Gonzales to a Washington Post reporter, "He's smoking Dutch cleanser."
Not only could Specter's reaction to the AG's work impact the Justice Department's advocacy for sentencing legislation, it also makes a great line for defense lawyers arguing with prosecutors over interpretations of Booker and 3553(a). Any time a prosecutor states a guideline sentence is presumptively reasonable, perhaps the retort should be that too much Dutch cleanser is being smoked inside DOJ.
More great sentencing reading from SSRN
Over at SSRN, you can find a host of fascinating looking papers on a range of sentencing (and sentencing-related) topics:
- The Market for Illegal Goods: The Case of Drugs by Gary S. Becker, Kevin M. Murphy and Michael Grossman
- Roper v. Simmons and the Limits of the Adjudicatory Process by Daniel R. Williams
- Should we Aggregate Mental Hospitalization and Prison Population Rates in Empirical Research on the Relationship between Incarceration and Crime, Unemployment, Poverty, and Other Social Indicators? On the Continuity of Spatial Exclusion and Confinement in Twentieth Century United States by Bernard E. Harcourt
- Killer Seatbelts and Criminal Procedure by David Alan Sklansky
IACHR hearing on federal mandatory minimum sentencing
As detailed in this press release, the Inter-American Commission on Human Rights (IACHR) "will hold a hearing on the issue of mandatory minimum sentencing on March 3, 2006," which will "review findings that show mandatory minimums are applied in a discriminatory fashion and lead to increased arbitrariness in federal sentencing." (Background on the IACHR and its work are available at this link.)
The press release reports that the hearings were spurred by a petition from the Justice Roundtable (available here) and a supporting letter from the American Bar Association's Criminal Justice Section (available here). As the press release explains:
The petition cites the 100-to-1 quantity ratio between crack and powder cocaine sentencing as the most flagrant example of how mandatory minimums have a discriminatory impact, since harsh sentences for crack- cocaine convictions fall disproportionately on African Americans. The ABA's letter referenced the Kennedy Commission findings that state "the American policy makers' embrace of mandatory minimums and other practices have produced a steady, dramatic, and unprecedented increase in incarceration and drastically increased racial disparities in the criminal justice system." This increase in incarceration has occurred despite the fact that recently released Department of Justice data reveal a decline in crime.
A potent and important prosecutorial statement against sex offender residency restrictions
I just received an extraordinary document released recently by the Iowa County Attorneys Association concerning sex offender residency restrictions in Iowa. The ICAA, as detailed here, is an organization of county prosecutors seeking "to promote the uniform and efficient administration of the criminal justice system." As explained in its five-page statement (which can be downloaded below), the ICAA believes that the Iowa's broad sex offender residency restriction "does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restriction with more effective protective measure."
The ICAA's potent statement (which everyone should read in full) explains in great detail why Iowa's broad sex offender residency restriction is ineffectual and harmful to public safety. Of course, persons impacted by residency restrictions have long argued their unfairness and some researchers have highlighted concerns about their efficacy. But the ICAA statement provides a thoughtful explanation from prosecutors as to why these laws are a bad idea and make our society less safe.
A Google news search reveals that the ICAA statement received some press attention a few weeks ago (see here and here), but not nearly as much as I think the statement merits. As detailed in this story from Iowa and another from Ohio, the ICAA statement can (and certainly should) significantly impact policy debates over the adoption of sex offender residency restrictions, which are raging in legislatures and local communities nationwide. Moreover, I think the ICAA statement could (and perhaps should) significantly impact constitutional challenges to residency restrictions. The statement suggests to me that overly broad residency restrictions ought not even survive rational basis review when subject to serious constitutional scrutiny.
Related posts on the constitutionality of, and policy deabtes over, sex offender residency restrictions:
- Sex (offenders) in the city
- Iowa Supreme Court upholds broad sex offender residency restrictions
- Great blog debate over residency restrictions
- USA Today overview of sex offender realities
- More politicians participating in sex offender panic
UPDATE: Dan Filler over at Concurring Opinions has this thoughtful amplification of points raised above. I must especially concur with this statement from Dan: "It is heartening to see rational policy debate creep into what has otherwise been the land of moral panic."
Sentencing as family and constitutional law
I often tell my students that all areas of law somehow find their way into becoming issues of sentencing law and policy: e.g., contract law --> plea deals; election law --> felon disenfranchisement; corporate law --> white-collar sentencing; property law --> forfeitures. A decision from the First Circuit yesterday, US v. Smith, No. 04-2448 (1st Cir. Feb. 8, 2006) (available here), provides an interesting example of family and constitutional law becoming a matter of sentencing law and policy.
There is a lot of interest in a relatively short space in Smith, which concerns a challenge to a supervised release condition restricting a father from see his young daughter. Here is the start of Smith:
Defendant-appellant Gregory Smith challenges a condition of supervised release, imposed by the United States District Court for the District of Massachusetts, that directs him to stay away from his minor daughter, Alisa McDonald. The appellant claims that this supervised release condition (i) denies him his fundamental right to associate with family members and (ii) lacks any reasonable relationship to the permissible goals of supervised release. After careful consideration, we uphold the challenged condition.
Military executions in the works
As detailed in this news article, "President Bush has been asked to authorize the executions of two men who have been on the military's death row at Fort Leavenworth for a combined 35 years." Notably, the method of execution to be used by the military would be lethal injection, so any capital plans could be impacted by the scrummages over the constitutionality of lethal injection (background here and here).
February 8, 2006
Capital business as usual in Texas
As detailed in this article, all the litigation over lethal injection protocols did not keep Texas from executing another murderer, Robert Neville, on Wednesday. As the article notes:
About an hour before his scheduled execution time, the U.S. Supreme Court rejected his final appeals. His lawyers had hoped to block the execution with appeals in the federal courts that questioned whether the lethal drugs used in the punishment were humane and that Neville suffered a mental illness brought on by lupus that should disqualify him from the death penalty.
The article also details why Texas is on pace to again lead the country in executions in 2006: Neville was "the third prisoner executed this year and the first of three over the next 15 days in the nation's most active capital punishment state."
Interesting review of incarceration and redemption
Thanks to this post at ACSBlog, I see that the organization Opportunity Agenda has released a report entitled "The State of Opportunity in America," which purports to track the nation's progress toward making opportunity available to all. Of particular interests to sentencing fans is this interesting chapter covering Redemption, which begins this way:
Over the last two decades, the scope of the criminal justice system has been expanded as a means of social control. But this expansion has had a dampening effect on opportunity. Opportunity is threatened by high rates of incarceration and the disproportionate impact of the criminal justice system on low-income communities of color. Policies that limit access to educational resources, provide inadequate resources to address prisoners' health problems, and deny the vote and access to public benefits, also hurt opportunity — often well after offenders have paid their debts to society.
The chapter closes by suggesting strategies to allow criminal justice laws to help "restore and redeem individuals and communities whose lives are affected both directly and indirectly by criminal justice policies."
Ugly clemency sparring in California
As I have mentioned before, California's scheduled execution of Michael Morales in less than two weeks is interesting to watch because of a brewing scrum over the constitutionality of lethal injection (background here and here). But this news article highlights that the case is also heating up through dueling claims in the clemency papers submitted to Governor Arnold Schwarzenegger:
Convicted killer Michael Morales' attorneys, including Clinton prosecutor Kenneth Starr, used a forged document in their bid for clemency, prosecutors said Monday — a claim the defense vehemently denied.
UPDATE: The LA Times on Thursday has this lengthy article discussing the lethal injection litigation in the Morales case and the broader story of constitutional challenges to lethal injection protocols.
Escaping an appeal waiver in the Fifth Circuit
Because I can barely keep up with published opinions, I rely on kind readers to alert me to unpublished dispositions that seem noteworthy. And one kind reader sent me a note reporting excitement in the Fifth Circuit over Monday's unpublished decision in US v. Whavers, No. 04-61162 (5th Cir. Feb. 6, 2006) (available here). Whavers seems perhaps significant because the Fifth Circuit refuses to enforce an appeal waiver after finding that, because the district court at rearraignment provided "an inaccurate characterization of the appeal waiver[,] ... the appeal waiver was not knowing and voluntary."
Eleventh Circuit remands unexplained life sentence
The Eleventh Circuit today in US v. Williams, No. 04-14350 (11th Cir. Feb. 8, 2006) (available here) remanded a life sentence in a crack case because the district court failed to comply with its obligations under 18 U.S.C. § 3553(c)(1) to "state in open court the reasons for its imposition of the particular sentence, and, if the sentence . . . exceeds 24 months, the reason for imposing a sentence at a particular point within the range." Here are highlights from Williams:
We focus exclusively on the "sufficiency" of the court's conduct at sentencing, not that of the defendant: "Congress has specifically proclaimed that a sentencing court shall state 'the reason for imposing a sentence [exceeding 24 months] at a particular point within the range.' . . . When a sentencing court fails to comply with this requirement, the sentence is imposed in violation of law . . . ." U.S. v. Veteto, 920 F.2d 823, 826 (11th Cir. 1991) (citations omitted) (emphasis added).
In Veteto we remanded for compliance with § 3553(c)(1) because the trial court explained a sentence in excess of 24 months with the "truism" that the chosen punishment "seem[ed] right." Id. at 824, 826. Here the trial court offered no reason for the life sentence it elected to impose upon 26 year-old Williams. The duty of this Court in the instant case, then, is as clear as the explicit statutory duty imposed by § 3553(c)(1).
Reforming Texas justice
Thanks to this post at Grits for Breakfast, I see that the Texas Governor's Criminal Justice Advisory Council has released this interesting report about improving the state's criminal justice system. As detailed in this press release, the report's proposals include more DNA testing, more forensics labs, and greater monitoring of sex offenders. Of course, the state's administration of capital punishment is integral to some aspects of the report and its recommendations. Media coverage of the report is available from the Houston Chronicle and the AP.
Seventh Circuit addresses co-defendant "disparity"
The Seventh Circuit today, per Judge Easterbrook, continued to show its affinity for within-guideline sentences and pre-Booker realities through US v. Boscarino, No. 05-2657 (7th Cir. Feb. 8, 2006) (available here). In Boscarino, the court affirmed a sentence over a claim that it was unreasonably high compared to the sentence given to a cooperating co-defendant (and did so with rhetoric that will surely led to Judge Easterbrook receiving many Valentine's Day cards from Assistant US Attorneys). Here are some snippets from Boscarino:
Boscarino and Aulenta had similarly clean records before these convictions, and they engaged in similar conduct, but a sentencing difference is not a forbidden "disparity" if it is justified by legitimate considerations, such as rewards for cooperation....
There would be considerably less cooperation — and thus more crime — if those who assist prosecutors could not receive lower sentences compared to those who fight to the last. Neither Booker nor § 3553(a)(6) removes the incentive for cooperation — and because this incentive takes the form of a lower sentence for a cooperator than for an otherwise-identical defendant who does not cooperate, the reduction cannot be illegitimate. After all, §3553(a)(6) disallows "unwarranted sentence disparities" (emphasis added), not all sentence differences.
Another way to put this point is to observe that the kind of "disparity" with which §3553(a)(6) is concerned is an unjustified difference across judges (or districts) rather than among defendants to a single case. If the national norm for first offenders who gain $275,000 or so by fraud is a sentence in the range of 33 to 41 months, then system-wide sentencing disparity will increase if Boscarino's sentence is reduced so that it comes closer to Aulenta's. Instead of one low sentence, there will be two low sentences. But why should one culprit receive a lower sentence than some otherwise-similar offender, just because the first is "lucky" enough to have a confederate turn state's evidence? Yet that is Boscarino's position, which has neither law nor logic to commend it.
Sentencing disparities are at their ebb when the Guidelines are followed, for the ranges are themselves designed to treat similar offenders similarly. That was the main goal of the Sentencing Reform Act. The more out-of-range sentences that judges impose after Booker, the more disparity there will be. A sentence within a properly ascertained range therefore cannot be treated as unreasonable by reference to §3553(a)(6).
I think Judge Easterbrook is generally on solid ground until he gets to his last paragraph, where he fails to fully grapple with the realities of how the strict application of the guidelines can some time produce disparities (such as, according to the USSC itself, in the operation of the crack guidelines or career offender enhancements).
Indeed, Judge Easterbrook's last paragraph seems inconsistent with what comes before when Judge Easterbrook stresses that it is legitimate (as a matter of law and logic) for a judge to impose an out-of-range sentence to reward cooperation. And, since roughly 2 out of every 3 out-of-range sentences that judges impose after Booker are still the result of a prosecutor's motion, Judge Easterbrook's closing pro-guideline dicta seems a bit much.
Sixth Circuit reasonableness bullfrogs jumping around
As noted here, Sixth Circuit Judge Boyce Martin last month had a colorful description of the litigation mess in the wake of Booker: "Achieving agreement between the circuit courts and within each circuit on post-Booker issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow." Perhaps in an effort to prove his point, Judge Martin today authored an opinion for a panel of the Sixth Circuit in US v. Foreman, No. 04-2450 (6th Cir. Feb. 8, 2006) (available here), in which the court seems to put a different spin on reasonableness review than did a different Sixth Circuit panel in the Williams case last week (details here).
I am in rapture over the Foreman decision in part because it is the first circuit decision I can recall which emphasizes Congress's commands in § 3553(a) that a sentencing court "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment: Judge Martin quotes this parsimony provision thrice in the main text of Foreman (at slip op. p.2 and p. 5). And, be still my heart, Foreman also makes this key point in a footnote:
It is worth noting that a district court's job is not to impose a "reasonable" sentence. Rather, a district court's mandate is to impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.
And, taking on the presumption of reasonableness, Foreman concludes with these notable paragraphs:
Finally, in United States v. Williams, we held that a Guidelines sentence is afforded a presumption of reasonableness. No. 05-5416 (6th Cir. January 31, 2006). Although this statement seems to imply some sort of elevated stature to the Guidelines, it is in fact rather unimportant. Williams does not mean that a sentence outside of the Guidelines range — either higher or lower — is presumptively unreasonable. It is not. Williams does not mean that a Guidelines sentence will be found reasonable in the absence of evidence in the record that the district court considered all of the relevant section 3553(a) factors. A sentence within the Guidelines carries with it no implication that the district court considered the 3553(a) factors if it is not clear from the record, because, of course, under the Guidelines as mandatory, a district court was not required to consider the section 3553(a) factors. It would be unrealistic to now claim that a Guideline sentence implies consideration of those factors.
Moreover, Williams does not mean that a sentence within the Guidelines is reasonable if there is no evidence that the district court followed its statutory mandate to "impose a sentence sufficient, but not greater than necessary" to comply with the purposes of sentencing in section 3553(a)(2). Nor is it an excuse for an appellate court to abdicate any semblance of meaningful review. Appellate review is more important because the Guidelines are no longer mandatory. Under the mandatory Guideline system, appellate review was not integral to assuring uniformity. Now, with the advisory Guidelines and more sentencing variables, appellate review is all the more important in assuring uniformity and reducing sentencing disparities across the board. See S. REP. NO. 98-225, at 151 (1983); United States v. Mickelson, 2006 WL 27687 (8th Cir. January 6, 2006).
SCOTUS circuit assignments and the death penalty
Thanks to law.com, everyone can access this interesting article by Carl Jones at the Daily Business Review about the potential impact on death penalty litigation resulting from a shift in circuit assignments for Supreme Court Justices. Here are a few snippets:
The U.S. Supreme Court has assigned Justice Clarence Thomas, a strong supporter of capital punishment, to handle emergency stay requests coming out of the 11th U.S. Circuit Court of Appeals. The move could affect Florida death penalty appeals. Justice Anthony Kennedy, a relative moderate on death penalty issues, previously handled the 11th Circuit, which includes Florida, Georgia and Alabama. Kennedy will handle the 9th Circuit, which covers California....
Last month, Kennedy granted a temporary halt to the pending execution in Florida of convicted murderer Clarence Edward Hill, who was minutes from receiving a lethal injection. Hill received a reprieve while the high court debates a procedural issue involving how many times death row convicts can appeal their sentence....
"I think Thomas would not, on his own, have granted [Hill's] stay request," said Los Angeles-based attorney and author Edward Lazarus, who wrote of his experiences clerking for Justice Harry Blackmun in the book "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court." "I think he, like Justice Scalia, really does not want to go back down the road of strict judicial oversight of the death penalty."
Of course, Justice Kennedy's shift to the Ninth Circuit hardly takes him out of all the capital punishment action. California is scheduled to execute Michael Morales in less than two weeks, and Morales has a challenge to the constitutionality of lethal injection working through the courts.
Florida's struggle with sex offenders
The Miami Herald last week ran this four-part investigative series, entitled "Predators Among Us," about the badly flawed administration of Florida's Jimmy Ryce Act, which is aimed at confining and treating the state's most dangerous sexual predators. This Herald editorial from Sunday summarized some of the paper's findings and called upon the Florida legislature to "revisit the Jimmy Ryce Act during its upcoming session and appropriate enough funding to make the act the safety net it is supposed to be." And, showing the power of effective investigative reporting, now the newpaper reports that "some of Florida's most powerful lawmakers are set to investigate why the law is failing to achieve its mission."
February 7, 2006
An international perspective on sentencing disparity
I rarely cover international sentencing developments; I can hardly keep up with all the domestic stories. Nevertheless, this article from Arab News in Saudi Arabia caught my eye with its headline, "Lack of Clear Guidelines Irks Lawyers, Defendants." Here are some snippets from a fascinating piece:
Reprimanding sentences, which are usually in the form of jail time or flogging or both, are passed based on the judge's jurisprudence and discretion, and herein lies the problem. For many lawyers, human rights advocates, religious scholars, the lack of codification and regulations upon which to refer when sentencing people for misdemeanors and disputes, makes the Saudi judicial system arbitrary and discriminatory.
Except for certain crimes such as murder, burglary and adultery, Islam does not specify the punishment to be handed to perpetrators for a whole range of crimes, from domestic violence to commercial fraud and drinking alcohol....
Unfortunately, while some judges are lenient others are very severe. The Shoura Council has previously discussed the issue and recommended establishing a codified system for reprimanding sentences as a reference for judges. At a press conference recently, Justice Minister Abdullah Al-Asheikh said that his ministry was directed by the king to put a framework for punitive and reprimanding sentences.
Highly publicized cases such as Nour Miyati's, the Indonesian maid who was sentenced to 79 lashes because she changed her testimony against her sponsor accusing him of torture, or that of teacher Muhammad Al-Harbi, sentenced to 750 lashes for disrespecting Islam, have raised questions on the judges' judgments. While Miyati's sentence is being appealed and Al-Harbi received a royal pardon, there are many others who are imprisoned and flogged for similarly unsupported or minor accusations.
Related posts on international concerns about sentencing disparity:
A day for reasonableness review
In addition to an en banc argument in the First Circuit on reasonableness review (discussed here and here), and a notable amended opinion in the Ninth Circuit (details here), today also brought at least two notable reasonableness opinions from two other circuits:
- Continuing its pattern (see here), the Eleventh Circuit in US v. Montgomery, No. 05-13935 (11th Cir. Feb. 7, 2006) (available here), affirms, over the government's appeal, a below guideline sentence in a fraud case. Notably, Montgomery is unpublished, but still merits attention for how it talks through an justifies a below-guideline sentencing in light of the provisions of 3553(a).
- Continuing its pattern (see here and here and here), the Eighth Circuit in US v. Lewis, No. 05-2248 (8th Cir. Feb. 7, 2006) (available here), affirms, over the defendant's appeal, a long within-guideline sentence in a crack case. Notably, Lewis does barely any analysis of how the provisions of 3553(a) are served by a 30-year sentence in this case and relies heavily on the presumption of reasonableness for a within-guideline sentence.
Judge Adelman provides more post-Booker wisdom
Sentencing Hall of Famer Judge Lynn Adelman has added to his impressive body of post-Booker work through two recent opinions: in one case [UPDATE: case name and link removed for privacy reasons], Judge Adelman justifies a non-guideline sentence in a child porn case; in US v. Peralta-Espinoza, No. 04-CR-282 (E.D. Wis. Feb. 3, 2006) (available for download below), Judge Adelman discusses the meaning of the term "aggravated felony" under USSG § 2L1.2 (and also explores in a footnote the Seventh Circuit's conclusion that departures are now obsolete). As always, Judge Adelman's post-Booker work merits a full and close read.
Prior posts on some of Judge Adelman's post-Booker work:
- Another (very different) view of Booker from a district court
- Judge Adelman strikes again
- More amazing post-Booker work by Judge Adelman
- Three more great Booker decisions from Judge Adelman
- Judge Adelman spotlights problems with mandatories
- Judge Adelman on extraordinary acceptance of responsibility
Ninth Circuit backs away from presumption of reasonableness
There is a lot of sentencing action in the circuits today, as I see notable opinions from the DC, Sixth, Seventh, Eighth and Eleventh Circuits (which I'll discuss as time permits in future posts). But the biggest news, I think, comes from a small amendment to the Ninth Circuit's decision US v. Guerrero-Velasquez, No. 05-30066 (9th Cir. Jan. 19, 2006), amended (Feb. 7, 2006) (available here), through which the Ninth Circuit appears to back away from embracing the idea that a within-guideline sentence is "presumptively reasonable."
As detailed in this post last month, Guerrero-Velasquez is not about reasonableness review, but Judge Jay Bybee included this (double-dicta) assertion for the panel in a footnote: "We also note that, on appellate review, a sentence suggested by the guidelines is presumptively reasonable." The new amended opinion now deletes this assertion completely.
I am tempted to try to take credit for this important development: it occurred right after I explained in this post why a "presumption of reasonableness" is troubling. But, I suspect this change was in the works for a while. And, of course, far more important than how this change came about is what it might mean for reasonableness review in the Ninth Circuit. I suppose it is still possible the circuit might eventually adopt, in an appropriate case, a "presumption of reasonableness." But I am inclined to read this amendment as an indication that at least some Ninth Circuit judges can see the wisdom of taking a different path.
The power and challenges of empirical sentencing research
I was pleased to see the Chicago Tribune today has this article, headlined "Study ties toughness of judges to politics: GOP, Democrat jurists vary on type of crime," discussing the empirical work of Northwestern profs Emerson Tiller and Max Schanzenbach. Though it's unclear why research available months ago at SSRN and slated to be published in the Journal of Law, Economics & Organization next year is making headlines now, the Tribune article highlights that effective and insightful empirical research on sentencing can capture media attention.
As detailed at his faculty profile and his electronic CV, Max Schanzenbach has produced a lot of empirical research on sentencing, and I have found all his work effective and insightful and important. And yet, I find that empirical assessments of sentencing outcomes always raise challenging (and unresolved) normative issues that are central to policy debates over sentencing reform. As summarized by the Tribune, the Tiller & Schanzenbachpaper paper concludes that "federal judges appointed by Republicans give tougher sentences on street crime,... while Democratic appointees take a stricter view of white-collar offenses." But, unless and until one has a metric for the "right" level of sentencing toughness for street crime and white-collar offenses, it is difficult to know how to covert these sorts of empirical findings into policy conclusions.
Why a "presumption of reasonableness" is troubling
Depending on how you count, perhaps more than half the circuits have now adopted a "presumption of reasonableness" for within-guidelines sentences on appeal after Booker. (The Fourth Circuit yesterday (details here) joined the Sixth, Seventh, and Eighth Circuits in clearly adopting this presumption; the Third, Fifth and Ninth Circuits have perhaps also embraced it.) I find the presumption troubling for a number of reasons:
1. Constitutional concerns: Booker indicates a guideline system with enhancements based on judicial fact-finding is only constitutional if judges are exercising discretion in ultimately deciding whether to follow the guidelines. Thus, I see a constitutional problem if and whenever a judge found fact to reach a higher guideline range and then blindly follows the guideline without considering the factors of § 3553(a). That's why I believe appellate courts perhaps ought to be applying a presumption of unconstitutionality to any enhanced within-guideline sentence not clearly the result of an exercise of discretion, and why circuits ought to demand that sentencing courts fully explain and justify any decision to follow the guidelines.
2. Statutory concerns: Congress's commands in § 3553(a) — which after Booker are to guide district court sentencing and appellate review for reasonableness — provide no textual basis for finding a guideline sentence presumptively reasonable. The text of § 3553(a) directs a sentencing court to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment, and the US Sentencing Commission has never claimed that its guidelines completely comply with that mandate. Moreover, the guidelines are just one factor that § 3553(a) calls for courts to consider at sentencing. Thus, I do not see a statutory basis for creating a presumption of reasonableness for guideline sentences (especially in settings like crack offenses or the application of the career offender enhancement, where the USSC itself has said its guidelines are dysfunctional in light of the goals of § 3553).
3. Practical concerns: I suppose the presumption would not be too troubling if it could be readily rebutted (especially in settings like crack offenses or the application of the career offender enhancement, where the USSC itself has said its guidelines are dysfunctional in light of the goals of § 3553). But we are now 13 months since Booker and are still awaiting a single circuit court ruling finding a guideline sentence unreasonable. I fear that the review standard is actually "presumptive in theory, fatal in fact." And that practical reality heightens the constitutional and statutory concerns outlined above.
As detailed here at the First Circuit Blog, later this afternoon there "will be an en banc oral argument in two First Circuit cases concerning the 'reasonableness' of a sentence." Here's hoping that the First Circuit recognizes some of the troubling aspects of a presumption of reasonableness and considers taking a different path.
February 6, 2006
Capital stories and developments
Today brings lots of stories and developments on an array of death penalty fronts:
- Charles Lane his this article in the Washington Post about the "junk science" that death row defendant Paul Gregory House may have presented to the Supreme Court in House v. Bell (details here)
- As detailed in this Baltimore Sun article, "Maryland's highest court postponed today the execution of convicted murderer Vernon Lee Evans Jr., who was scheduled to be put to death this week." Evans, the death row blogger, apparently will have a May hearing on an array of claims, including one concerning lethal injection.
- As detailed in this AP story, Delaware prosecutors "announced Monday they will not seek a new death penalty hearing for convicted killer Thomas Capano, a once wealthy and well-connected attorney." Capano's death sentence was overturned last month by the Delaware Supreme Court because of a Ring problem with the state's death penalty process (details here).
Big Fourth Circuit opinion on reasonableness review
The Fourth Circuit today in US v. Green, No. 05-4270 (4th Cir. Feb. 6, 2006) (available here), discusses reasonableness review at length. Here are highlights from the Fourth Circuit's overview of what Booker and 3553(a) mean for federal sentencing (with cites omitted):
[T]o sentence a defendant, district courts must (1) properly calculate the sentence range recommended by the Sentencing Guidelines; (2) determine whether a sentence within that range and within statutory limits serves the factors set forth in § 3553(a) and, if not, select a sentence that does serve those factors; (3) implement mandatory statutory limitations; and (4) articulate the reasons for selecting the particular sentence, especially explaining why a sentence outside of the Sentencing Guideline range better serves the relevant sentencing purposes set forth in § 3553(a).
The Fourth Circuit in Green also goes on to officially adopt the a presumption of reasonableness for within-guidelines sentences:
In this area, the district court is given some latitude to tailor a particular sentence to the circumstances without discarding the overarching guidelines and policies. But we agree with the Seventh Circuit, which has concluded that a sentence imposed "within the properly calculated Guidelines range . . . is presumptively reasonable." United States v. Newsom, 428 F.3d 685, 687 (7th Cir. 2005).
A sentence falling outside of the properly calculated Guidelines range is not ipso facto unreasonable. But if that sentence is based on an error in construing or applying the Guidelines, it will be found unreasonable and vacated. The same is true if the sentence is imposed outside the Guideline range and the district court provides an inadequate statement of reasons or relies on improper factors in departing from the Guidelines' recommendation....
I suppose I am not surprised to see another circuit jump on the "presumptively reasonable" bandwagon (while reversing a below guideline sentence), but I continue to be disappointed at the culture of guideline compliance we are seeing from the circuit courts. As I lamented in this post last week, 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.
Post-Booker patience is a virtue, perhaps
Though I remain troubled by the US Sentencing Commission's work to date on Booker issues (see here and here), I am pleased to report that I am hearing buzz that we might see the USSC's comprehensive Booker report relatively soon (perhaps well before May).
Thus, others like me eager for more information from the USSC about post-Booker realities may just need to be a bit more patient: the USSC is apparently working hard on all the post-Booker issues about which commentators are curious. Of course, I especially hope that DOJ and Congress and anyone else thinking about possible Booker fixes are also patient and are sure to await word from the USSC before moving forward on any serious legislative proposals.
A sentencing double-shot from the Seventh Circuit
Sentencing fans will want to check out a pair of rulings from Seventh Circuit today: US v. Browning, No. 05-1991 (7th Cir. Feb. 6, 2006) (available here) and US v. Gokey, No. 05-1110 (7th Cir. Feb. 6, 2006) (available here). Neither is ground-breaking, but Browning has some interesting coverage of Shepard and the prior conviction exception and Gokey deals with a potentially important Booker pipeline/harmless-error issue.
Judge Posner's opinion for the Seventh Circuit in Browning is classic Posner, and the closing paragraph merits quoting at length:
Almendarez-Torres is vulnerable to being overruled not because of Shepard but because of United States v. Booker, 125 S. Ct. 738 (2005). Booker holds that there is a right to a jury trial and to the reasonable-doubt standard in a sentencing proceeding (that is, the Sixth Amendment is applicable) if the judge's findings dictate an increase in the maximum penalty. Id. at 756. Findings made under the Armed Career Criminal Act do that. So if logic rules, those findings too are subject to the Sixth Amendment. But law is not always very logical, and a good thing it isn't. An immense practical difference between the fact of a prior conviction and other facts bearing on a sentence is that defendants normally are loath to have their prior crimes paraded before a jury. In states such as Wisconsin that entitle defendants to jury consideration of sentencing enhancements based on prior sentences, the entitlement is almost always waived. So overruling Almendarez-Torres would have little practical significance, though it would doubtless beget a torrent of postconviction proceedings, just as Booker has done. Maybe, then, Almendarez-Torres will survive. But that is neither here nor there; the continued authority of Almendarez-Torres is not for us to decide.
Eighth Circuit addresses fast-track issues (sort of)
The Eighth Circuit today in US v. Sebastian, No. 05-2002 (8th Cir. Feb. 6, 2006) (available here), affirms another within-guideline sentence and thus continues the consistent post-Booker appellate pattern of finding all guideline sentences reasonable (background here and here). Along the way, Sebastian discusses the disparities created by fast-track programs:
Sebastian argues that the more favorable treatment of aliens with similar records and similar offense conduct in judicial districts with fast-track programs makes it unreasonable to apply the advisory range to him....
These early disposition programs do create sentence disparities among defendants with similar criminal records who commit similar offense conduct. The disparity is based solely on geography, and this has prompted complaints that "it is difficult to imagine a sentencing disparity less warranted than one which depends on the accident of the judicial district in which the defendant happens to be arrested." United States v. Bonnet-Grullon, 53 F. Supp. 2d 430, 435 (S.D.N.Y. 1999), aff'd, 212 F.3d 692 (2d Cir. 2000); see also United States v. Santos, No. 05 Cr. 522, 2005 WL 3434791, at *6 (S.D.N.Y. Dec. 12, 2005). The command that courts should consider the need to avoid "unwarranted sentence disparities," however, emanates from a statute, and it is thus within the province of the policymaking branches of government to determine that certain disparities are warranted, and thus need not be avoided.
In this instance, Congress and the President, by directing that the Sentencing Commission provide for guideline departures in certain judicial districts, "concluded that the advantages stemming from fast-track programs outweigh their disadvantages, and that any disparity that results from fast-track programs is not 'unwarranted.'" United States v. Perez-Chavez, No. 2:05-CR-00003PGC, 2005 U.S. Dist. LEXIS 9252, at *21 (D. Utah May 16, 2005). There may be good reasons to question this policy decision, id. at *35-38, but to require the district court to vary from the advisory guidelines based solely on the existence of early disposition programs in other districts would conflict with the decision of Congress to limit the availability of such sentence reductions to select geographical areas, and with the Attorney General's exercise of prosecutorial discretion to refrain from authorizing early disposition agreements in Eastern Missouri. The district court in this case, after considering all of the factors in § 3553(a), concluded that a sentence of 46 months was appropriate, and we do not think the sentence disparities arising from fast-track programs makes this sentence unreasonable for Sebastian.
Significantly, the Sebastian decision does not state, or even imply, that it would be unreasonable for a district judge to decide to vary from the guidelines based on fast-track disparity concerns. Rather, Sebastian simply concludes it was not unreasonable for the district judge here to follow the guidelines. Indeed, reading between the lines a bit, I think Sebastian could be read as suggesting district judges are permitted after Booker to adjust sentences based on fast-track disparity concerns in the right case involving the right facts.
Back to the lethal injection litigation
After a weekend respite, federal courts can look forward to another (chaotic?) week of litigation about the constitutionality of lethal injection. This article from California effectively explains the latest wave of lethal injection challenges:
[D]eath row inmates in California and dozens of other states have mounted furious legal challenges to lethal injection, arguing that the seemingly antiseptic process masks the potential for a searingly painful death that amounts to cruel and unusual punishment.
Largely unsuccessful in the past, this legal argument has gained unprecedented momentum in the past week because of the U.S. Supreme Court's decision to stop a Florida execution as an inmate was being prepared to die by lethal injection. The Supreme Court's dramatic 11th-hour stay to consider how challenges to lethal injection should proceed has rippled across the country, casting doubt on dozens of execution dates, including the scheduled Feb. 21 execution of condemned killer Michael Morales at San Quentin.
Over at Capital Defense Weekly, Karl Keys provides additional effective coverage here. (Karl also has this interesting post expressing sympathy that Justice Alito in his new job will now have "to give the proverbial thumbs signal, up or down, for life or death" perhaps thousands of times.)
Related recent posts:
- Does the SCOTUS cert. grant create a de facto moratorium?
- A cruel and too usual jurisprudence?
- How will the Hill case impact execution plans?
- Now what in Florida and Texas?
- SCOTUS lethal injection litigation updates
- More lethal injection scrummages
February 5, 2006
Some deep meta-blogging thoughts
In addition to being obsessed with sentencing issues, I am also a bit obsessed with meta-blogging issues, particularly the power, potential and pitfalls of blogging as a medium for lawyers and law professors. (As discussed previously here, I am trying to find time to write a piece about blogs as legal scholarship, which builds on themes I developed at PrawfsBlawg here and here concerning how blogs might be improved as an academic medium.)
Anyone interested in these meta-blogging issue should be sure to check out this amazing post over at the new blog 3L Epiphany. Ian Best has assembled "a collection of blog posts and articles on the subject of 'Academic Blogging' [which] indicates the growing importance and sophistication of the legal academic blogosphere." Ian explains that his goal is "to demonstrate the value in organizing and structuring conversations from the blogosphere," and he also thoughtfully asks whether law student blogs will come to "achieve greater respectability, and contribute something of value to legal scholarship." (By my lights, many law student blogs such as Crescat and De Novo and even BTQ already do.)
I am already a fan of 3L Epiphany (and I know Ian has many insights to share) because last summer Ian helped me create this set of webpages on sentencing resources, which sought to organizing some of my posts on topics such as Blakely in the States and Booker in the Circuits and Drug Sentencing. In addition, Ian is already garnering much attention (and creating a blogstorm?) because he may be the first law student seeking to earn academic credit for blogging.
The challenges of child porn sentencing
This extended article from the Louisville Courier-Journal discusses the post-Booker challenges in achieving fair and consistent sentencing in federal child pornography cases. Here are some snippets:
The three cases [from Kentucky discussed in the article] highlight the struggle that judges are having with recent increases in federal punishments for child pornography offenses when there is no evidence the offender directly harmed a child -- as well as the latitude judges now have to sentence outside the guidelines, which once were mandatory....
The local cases are part of a national increase in federal child pornography cases. In Kentucky and Southern Indiana, the number of such cases doubled in two years to 55 last year. Officials attribute the growth to an explosion of child pornography on the Internet, and increased efforts by local, state and federal law enforcement to apprehend offenders.
Suspects arrested by state and local police agencies in Kentucky are being prosecuted in federal -- rather than state -- courts because federal laws carry much stiffer punishments, and because offenders must serve at least 85 percent of their sentences.