Sentencing Law and Policy

Exploring possibilities in the SCOTUS state Blakely cases

In this post over at Criminal Appeal, Jonathan Soglin effectively explores possible action by the Supreme Court following its Friday conference on "the several pending California Blakely cases and a similar Tennessee case."   It seems Jonathan is predicting cert will be denied in these cases, although my money would be on a cert grant in at least one case with oral argument scheduled for next Term.  However, as I explained in this recent post, the more I think about the state Blakely cases from California and Tennessee (background here and here and here), the more unsure I am about what SCOTUS should or will do.

Some related prior posts:

• What should and will SCOTUS do with the state Blakely cases?
• Gearing up for the next Blakely cases
• Blakely at 18 months: a recap of state high court rulings
• State Blakely mess: the split over Blakely's application to presumptive sentencing
• Does Blakely draw a bright line? What is that line?
• Latest FSR issue on Blakely in the States

Back to the lethal injection scrum in Morales

Governor Arnold Schwarzenegger denial of clemency to California death row inmate Michael Morales(details here) closes one chapter in this high-profile case.  But that just mean the action now shifts back to the debates over lethal injection protocols. 

As this Los Angeles Times article highlights, medical groups are now in the mix after a federal judge ordered that a doctor monitor the execution (details here).  As the article explains: "An array of professional medical organizations lashed out against the court prescription, saying that it contradicts a physician's obligation to save lives."  Additional media coverage of this new twist can be found here and here.

Related prior posts:

• Schwarzenegger denies clemency in Morales case
• California death penalty headlines
• Judge places restrictions on California execution method
• Notable editorials on lethal injection scrummages

UPDATE:  How Appealing has a collection of Morales media coverage here.

Tenth Circuit embraces presumption of reasonableness

When it rains, it pours: adding to major expositions in recent days from the Third, Fourth, Fifth, and Sixth Circuits, the Tenth Circuit on Friday also opined at length about reasonableness review in US v. Kristl, No. 05-1067 (10th Cir. Feb. 17, 2006) (available here).  Here are some highlights from Kristl:

[W]e join our sister circuits and hold that a sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.  This is a deferential standard that either the defendant or the government may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in § 3553(a)....

In sum, today we adopt a two-step approach to the reasonableness standard of review announced in Booker.  First, we must determine whether the district court considered the applicable Guidelines range, reviewing its legal conclusions de novo and its factual findings for clear error.  A non-harmless error in this calculation entitles the defendant to a remand for resentencing.  If, however, the district court properly considers the relevant Guidelines range and sentences the defendant within that range, the sentence is presumptively reasonable.  The defendant may rebut this presumption by demonstrating that the sentence is unreasonable in light of the other sentencing factors laid out in § 3553(a).

A reasonableness double shot from the Fifth Circuit

I noted here that the Fifth Circuit was having a big sentencing week, and Friday it finished up with two important opinions addressing reasonableness review.  In US v. Smith, No. 05-30313 (5th Cir. Feb 17, 2006) (available here) and US v. Duhon, No. 05-30387 (5th Cir. Feb 17, 2006) (available here), the Fifth Circuit sets forth its general approach to reasonableness review in the course of examining two non-guideline sentences.

In Smith, the Fifth Circuit explains that, "[t]hough flexible, the reasonableness standard is not unbounded."  The Smith court clarifies that the Fifth Circuit applies a "deferential standard for reviewing sentences within a properly calculated Guideline range[:] ... such a sentence is afforded a rebuttable presumption of reasonableness."  Discussing non-guidelines sentences, the Smith court embraces "the framework articulated by the Eighth Circuit in assessing the reasonableness of a court's statutory support:"

A non-Guideline sentence unreasonably fails to reflect the statutory sentencing factors where it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.

In Duhon, the Fifth Circuit reiterates these points and stresses that "[u]nder section 3553(a), ... a sentence must be supported by the totality of the relevant statutory factors."  The Fifth Circuit in Duhon also works thoughtfully through some of the provisions of 3553(a), though yet again there is nary a mention of Congress' command in 3553(a) that a sentence should be "not greater than necessary" to serve the purposes of punishment.

Though both Smith and Duhon are thoughtful opinions (with thoughtful concurrences by Judge Garza), I still believe, as explained fully here, that a "presumption of reasonableness" for within-guidelines sentences on appeal after Booker is badly misguided.  Even more troubling, these decisions continue the ugly pattern of reasonableness review: in Smith, a sizable above guideline sentences is affirmed as reasonable, whereas in Duhon a below guideline sentence is reversed as unreasonable.   

Smith and Duhon thus further my observation in this post, that the circuit courts are virtually creating de facto through reasonableness review a kind of post-Booker mandatory "minimum guideline system."  All within-guideline sentences and nearly all above-guidelines sentences are being found reasonable on appeal, but many below-guideline sentences are being reversed as unreasonable. 

Schwarzenegger denies clemency in Morales case

Adding another chapter to a high-profile capital case that has made lots of headlines for lots of reasons, this afternoon California Governor Arnold Schwarzenegger has denied clemency to death row inmate Michael Morales.  You can access Gov. Schwarzenegger's six-page statement of decision at this link and an official press release here.  Here is the statement's penultimate paragraph:

Nothing in the record or the materials before me compels a grant of clemency. The pain Ms. Winchell's loved ones have been forced to endure at the hands of Morales is unfathomable as is the brutality of the acts he perpetrated.

Related prior posts:

• Giving clemency a black eye in California
• California death penalty headlines
• Ken Starr and the Morales case
• Judge places restrictions on California execution method

UPDATE: Mike at Crime & Federalism has this astute reaction to aspects of Schwarzenegger's statement of decision.

Mark your SCOTUS calenders

As detailed over at SCOTUSblog, the (new) Supreme Court is back in action with some orders about argued cases.  But we have to wait until Tuesday for news about what SCOTUS may do with the state Blakely cases conferenced today (speculations here). 

Also Wednesday of next week brings SCOTUS oral argument in two notable criminal cases:

• Holmes v. South Carolina (background here) presents this question: "Whether a state's rule governing admissibility of third-party guilt evidence violates a criminal defendant's constitutional right to present a complete defense grounded in due process, confrontation, and compulsory process clauses?"

• Samson v. California (background here) presents this question: "Does the 4th Amendment prohibit police from conducting a warrantless search of a person who is subject to a parole search condition, where there is no suspicion of criminal wrongdoing and the sole reason for the search is because the person is on parole?"

Anyone want to guess whether Justice Alito — the first former federal prosecutor to serve as a Justice and the first prosecutor on the High Court since Earl Warren — will be an active questioner in these cases? I will make the bold prediction that Justice Alito will ask at least as many questions as Justice Thomas.

Notable editorials on lethal injection scrummages

Besides making great fodder for a modern-day Kafka novel, the litigation scrummages over lethal injection also provide grist for the editorial mill:

• The San Francisco Chronicle today has this editorial entitled "Kinder, gentler executions." Here's its opening: "As California readies for its third Death Row execution in two months, the spectacle of killing an inmate just keeps becoming more absurd."

• The Bradenton Herald today has this editorial entitled "Sad, not cruel." Here are key passages: "No question the nation could use a serious, in-depth debate on the death penalty.... But the issue here is lethal injection. The cruel-and-unusual punishment argument is really grasping at straws by death penalty opponents."

Some related prior posts:

• And the lethal injection litigation played on...
• Back to the lethal injection litigation
• More lethal injection scrummages
• Still more on the lethal injection scrummages
• Another lethal litigation update
• Judge places restrictions on California execution method
• Another front in the lethal injection wars

UPDATE: How Appealing here has a collection of links to the latest news and developments in the California lethal injection litigation.

Notable white-collar sentencing rulings from the circuits

I noted in this post my inability to keep up with all the sentencing action in the federal circuits this week.  But fellow bloggers have helped me see that two white-collar sentencing appeals decided yesterday may merit a spotlight:

• White Collar Crim Prof Blog has this extended post about the Eleventh Circuit's decision yesterday in US v. Devegter, which is described as "a 'pay-to-play' corruption case involving a payment of over $41,000 for an investment bank to conduct a bond refinancing for Fulton County, Georgia."  The Devegter ruling, which discusses departure authority at length, is available here.

• How Appealing has this coverage of the Tenth Circuit's decision yesterday in US v. Weidner, which concerns "Former Westar Energy Inc. chief executive David Wittig and an ex-bank president ... in a loan conspiracy case."  The Weidner ruling, which discusses loss calculations at length, is available here.

Starr, the Morales case, and Mobius Strips

In this post, I have the highlights and recent media coverage of Ken Starr's dramatic place in the Morales capital case in California, including the text of an interesting e-mail that Starr sent around to fellow law deans yesterday about the case.   And now, thanks to eagle-eyed Howard Bashman, I see that this Sacramento Bee article seems to reference that post:

A law professor's Thursday blog included an e-mail message attributed to Starr, now the dean of Pepperdine's law school, to fellow law school deans.  The e-mail said Morales' case for clemency remained "compelling." Attached was [co-counsel] Senior's letter to Schwarzenegger.

Of course, in order to reinforce the Mobius Strip quality of the blogosphere, I had to do this new post to mention this oblique MSM mention of my prior post.  Now if only someone in the MSM will do a story about this post commenting on the MSM's reference to the prior post....

An ever growing list of mitigating factors

Attorney Michael Levine has long assembled mitigating claims developed in the federal guideline system in a mega-resource that, pre-Booker, had been entitled "88 Easy Departures."  As detailed in posts here and here, the initial post-Booker updated version of this resource was re-titled "108 Easy Mitigating Factors" (and that document through November 2005 can be accessed at this link).

I have now heard from Michael that, unsurprisingly, the number of mitigating factors continues to grow after Booker:

I'm up to 128 and counting.  Here's the latest table of contents [available below].  The whole work is up to 90 pages now.  Anyone who wants the magnum opus can contact me directly at this e-mail.  I'm now charging $50 for the latest update for private lawyers.  Its free for federal public and community defenders.

Download 128_easy_mitigating_factors_feb_2006_toc.doc

A busy sentencing week in the Fifth Circuit

I have not been able to keep up with all the sentencing action in the federal circuit courts this week.  Thursday alone brought notable sentencing opinions from Eighth, Tenth and Eleventh Circuits, and other circuits have been active throughout the week.  The Fifth Circuit merits special mention as busy sentencing bee with a half-dozen published sentencing decisions this week:

• US vs. Woods, No. 04-11058 (5th Cir. Feb 13, 2006) (available here)
• US vs. Adair, No. 04-30859 (5th Cir. Feb 13, 2006) (available here)
• US vs. Mendoza-Blanco, No. 04-41499 (5th Cir. Feb 14, 2006) (available here)
• US vs. Cain, No. 05-30003 (5th Cir. Feb 15, 2006) (available here)
• US vs. Hamilton, No. 04-20616 (5th Cir. Feb 16, 2006) (available here)
• US vs. Stapleton, No. 05-30088 (5th Cir. Feb 16, 2006) (available here)

I continue to encourage readers to point out any especially important passages from the copious sentencing caselaw being delivered by the circuits these days (which I can now barely find time to skim).

Reviewing a busy Booker week in the Third Circuit

With thanks to How Appealing for the link, I see that law.com has available this article from The Legal Intelligencer entitled "3rd Circuit Deeply Split Over Post-Booker Sentencing Issues."  The article provides highlights from this week's decisions from the Third Circuit about reasonableness review in Cooper (detailed here) and Booker's (non)application to forfeiture and restitution in Leahy (detailed here).

Ken Starr and the Morales case

As noted in recent posts here and here, the clemency ugliness in the Morales capital case in California has drawn extra attention because of Ken Starr's involvement.  As some may know, Starr is now the Dean of Pepperdine's School of Law, and today I received a copy of (and then permission to reprint) this interesting e-mail that Dean Starr sent around to fellow law deans about the Morales case:

For the last three weeks, I have been serving as co-counsel in clemency proceedings in California. The execution of my client, Michael Morales, is scheduled for February 21 at 12:01 a.m.  The execution should not go forward, and we have urged the Governor of California to grant clemency.  Michael's case for clemency, in my judgment, is compelling.  It is supported by the trial judge who sentenced him to die — based upon what we now know to have been perjured testimony of a self-interested jailhouse informant.

Tragically, allegations of serious wrongdoing on the part of one of the clemency team's investigators have led to a swirl of publicity highly injurious to Michael's cause.  Because the stories have not escaped the attention of the national media, I am taking — with apologies for the burden — the liberty of sharing with you a letter to the Governor of California from my (court-appointed) co-counsel, David Senior.  I hope you will read Dave's cry from the heart, and if you are so moved, share with me any thoughts and advice.  Your guidance — and frankly your eagerly-sought support of Michael's cause — would be most warmly welcome.

You can download below the five-page letter from David Senior to Governor Schwarzenegger referenced in Dean Starr's e-mail.  It is a very interesting read:

Download morales_clemency_letter_from_senior.pdf

UPDATE:  This AP story discusses Morales' plea for clemency.  It notes that "the Stockton high school dropout hopes to convince the governor that Terri Winchell's 1981 murder was a drug-fueled aberration for which he has spent his life atoning.  Remorse and the corrective power of time lie at the heart of his last-ditch plea for mercy."

MORE: This morning brings another interesting story in the San Francisco Chronicle focused on Ken Starr's role in the Morales case, as well as this notable article in the Los Angeles Times.

The Second Circuit on reasonableness review

While other circuits have said a lot lately about reasonableness review — e.g., this month we've seen big rulings from the Third Circuit and Fourth Circuit and others on the topic — the Second Circuit has been notably quiet in this arena.  Through its potent and powerful Crosby decision last February, the Second Circuit did path-breaking work only weeks after the Booker ruling.  But since Crosby, the Circuit has not had a leading role in shaping the look of reasonableness review.

And yet, thanks to a reader pointing me to the unpublished opinion in  US v. Claudillo-Marquez, No. 05-4102-CR, 2006 WL 224182 (2d Cir. Jan. 30, 2006) (available here), I now see the Second Circuit recently had this interesting and important riff about reasonableness review:

Reasonableness review has two components: (1) procedural reasonableness, whereby we consider such factors as whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and (c) considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a); and (2) substantive reasonableness, whereby we consider whether the length of the sentence is reasonable in light of the factors outlined in 18 U.S.C. § 3553(a). United States v. Crosby, 397 F.3d at 114-15....

"Because 'reasonableness' is inherently a concept of flexible meaning," United States v. Crosby, 397 F.3d at 115, the reasonableness standard of review is necessarily "deferential," United States v. Canova, 412 F.3d 331, 350 (2d Cir. 2005).  Although this court has recognized the possibility that a sentence within prescribed statutory limits may, nevertheless, "exceed the bounds of 'reasonableness,'" we have emphasized that "we anticipate encountering such circumstances infrequently." United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005).

Stirring (and encouraging?) speech from AG Gonzales

Senator Arlen Specter suggested AG Alberto Gonzales was smoking Dutch cleanser following Gonzales' testimony before the Senate Judiciary Committee last week (details here).  But, after reading the text of Gonzales' One-Year Anniversary Speech (which can be accessed here), I am somewhat less concerned about what might be in the AG's pipe.

I found Gonzales' lengthy speech, which was delivered yesterday to a group of US Attorneys in DC, to be stirring.  Though cynical readers can surely find sentiments that seem out of step with the Bush Administration's actions, my (naive?) enduring optimism made the speech a feel-good read.  I found especially notable and intriguing how Gonzales set forth DOJ's priorities for the year ahead.  Here is the money paragraph:

In addition to the fight against terrorism, the Justice Department will focus on five priority areas in the coming year: violent crime, drug trafficking, cyber crime, civil rights, and public and corporate corruption.  These priorities are not new; they are fundamentals indicators of the American dream.  Nor is this list comprehensive.  But we will work in these areas because our success is vital to the health of that dream in the 21st century.

I also found the speech encouraging because of the absence of any Booker bashing.  But sentencing did come up explicitly in a lone (ominous?) sentence at the tail end of the speech: "Advocating for a tough and fair sentencing system will give teeth to our enforcement objectives, improve our deterrence efforts, and ensure that every American is treated fairly before the bar of justice."

My optimism leads me to want to read this sentence as just an indication that DOJ plans to keep pushing for guideline sentences in district courts and to continue arguing their reasonableness on appeal.  However, one need not be too much of a cynic to read this line as foreshadowing a Booker fix proposal coming from DOJ in the months ahead.

What should and will SCOTUS do with the state Blakely cases?

As recently noted in my Valentine week sentencing wish list, the Supreme Court on Friday has on its conference schedule a set of major state Blakely cases from California and Tennessee (background here and here and here).  The more I think about these cases, the more unsure I am about what SCOTUS should or will do with these cases.

I can say confidently that SCOTUS should not simply deny cert in these cases.  Though Tennessee changed its sentencing law to avoid future Blakely issues, California continues to sentence thousands of defendants each month under its constitutionally questionable system.  And, as previously noted here, even if the Supreme Court ducks these matters now, the California cases will get back at the High Court through habeas.  Moreover, as detailed in posts listed below, there is a deep division among many states about the meaning and reach of Blakely. 

Of course, SCOTUS probably should not have denied cert on the issue of Booker plain error, but it did (background here and here and here).  So, just because SCOTUS should do something with these state Blakely cases does not mean it will.  Still, I would be quite surprised if the Court simply denies cert in these cases.

But saying SCOTUS should take up these state Blakely cases does not answer how it should do so.  I think the Tennessee case is perhaps ripe for summary reversal, although there are some procedural complications in the case.  The California cases avoid some of these procedural complications, but I wonder if the Court would feel comfortable summarily reversing on an issue that would be extraordinarily consequential to how California and other states operate their criminal justice systems.

In thinking through these issues, one must also throw into the analytical mix the current SCOTUS sentencing head-count on Apprendi-Blakely issues and the great uncertainty surrounding what Justice Alito and Chief Justice Roberts may think about Blakely issues ("Sc-Alito" background here and here; "Sca-Robers" background here).  And what of CJ Roberts' obvious efforts to bring greater consensus and lower the heat on various contentious constitutional issues (background here).   My head hurts, but I am excited to see what might happen.

Some related prior posts:

• Gearing up for the next Blakely cases
• Blakely at 18 months: a recap of state high court rulings
• State Blakely mess: the split over Blakely's application to presumptive sentencing
• Does Blakely draw a bright line? What is that line?
• Latest FSR issue on Blakely in the States
• Blakely in the States archive

California death penalty headlines

As detailed in this Los Angeles Times article, California is responding to the recent federal court ruling about its lethal injection protocol in the scheduled execution of Michael Morales (details here) by having "an anesthesiologist to monitor Morales' level of consciousness while the three-chemical potion is delivered into his veins."  More coverage ot this development can be found in the San Jose Mercury News.  In related news, detailed in this AP story, the California Supreme Court yesterday rejected one of Morales' claims seeking to halt his execution.

Meanwhile, the clemency ugliness in the Morales case (background here and here) also continues to make headlines: this morning brings this story in the San Francisco Chronicle focused on Ken Starr's role in "a bizarre sequence of events in which documents submitted to Schwarzenegger supporting clemency for Morales were apparently forged."

Around the blogosphere

A quick tour around the blogosphere reveals a number of items of interest:

• At PrawfsBlawg, Adil Haque has a pair of thought-provoking posts about retribution and restorative justice.

• The Third Circuit Blog reviews the recent Booker action in Third Circuit in posts here and here.

• At a Stitch in Haste, KipEsquire has this interesting review of sex offender sentencing developments.

• Steve Sady at the Ninth Circuit blog has this long explanation of why he believes "courts must avoid the application and extension of the Almendarez-Torres under the Doctrine of Constitutional Avoidance."

• Back at PrawfsBlawg, Dan Markel has a pair of posts here and here providing an update on the Gementera shaming case (background here and here).

Update on state sentencing action

Folks really in the know about sentencing realize that all the sturm und drang over federal sentencing is a sideshow to all the real sentencing action that takes place in the states.  Consequently, I am pleased to be able to post the latest edition of the newsletter of the National Association of Sentencing Commissions (NASC), which provides an effective summary of some of the latest activities a number of state sentencing commissions.   As the newsletter documents, there is so much interesting and important sentencing work is being done in the states (and not all of it is about Blakely, thank goodness).

In addition, this newsletter has information about the upcoming annual NASC conference, which looks fantastic.  The theme for this year's conference, which takes place in Philadelphia in August 2006, is "Keystone of Sentencing: Balancing Fairness and Costs."  Be there or be square.

Download nasc_feb_2006_newsletter.pdf

Another front in the lethal injection wars

Over here at SCOTUSblog, you can access a cert. petition filed today in Abdur'Rahman v. Bredesen by the folks at Goldstein & Howe challenging the constitutionality of Tennessee's lethal injection protocol.  Here is how Amy Howe explains this new battle line in the lethal injections scrummages (background here and here):

While the Court has been bombarded with a number of lethal injection cases of late, we believe that if the Court is inclined to consider the issue this one is an especially appropriate case for the Court's review, for a couple of reasons.  First, unlike most of the other cases that have sought Supreme Court review, this case is not an eve-of-execution challenge and presents a very well-developed record. Second, the case is not complicated by procedural questions such as whether the challenge to the protocol is a second or successive habeas petition; rather, Abdur'Rahman's state-law right to bring this federal constitutional claim is uncontested.

Meanwhile, as this AP article details, a Texas death row inmate has an appeal before the Supreme Court on the lethal injection issue in an effort to halt his execution scheduled for this evening.

UPDATE: As detailed here, the Supreme Court refused to intervene and Wednesday evening Texas carried out its fourth execution of the year.  Another one is scheduled for next week in Texas.