February 15, 2006
Life without parole for juvenile may be cruel, but it is not unusual
With thanks to Howard Bashman for the link, today's must-read for those interested in topics beyond the Sixth Amendment is this fascinating article from the Philadelphia Daily News entitled "No future: Pa. leads nation in juveniles serving life sentences." The article is full of data and insights about life sentences for juvenile offenses, and here are a few notable passages:
With an exploding number of kids becoming killers, more than 2,225 juveniles across the country now are serving life in prison without parole.... Because of tough state laws such as charging murder suspects as adults regardless of their age, Pennsylvania tops the nation in the number of young offenders condemned to life in prison without parole....
[Alison] Parker [from Human Rights Watch] authored a report released last fall that found that 42 states permit judges and juries to condemn juveniles to life in prison without parole, despite widespread global rejection of that penalty for young offenders. Pennsylvania leads the nation in the number of juvenile lifers, with more than 330 [and] ... 59 percent of the juveniles serving life-without-parole sentences nationally had no prior criminal convictions before being placed in prison for life, according to Parker's report....
[Advocates of reform] point to New Jersey as a model, where murder convicts face a minimum of 30 years in prison without parole. Judges then decide if the case warrants a more severe penalty based on the circumstances. While the Garden State allows juveniles to be sentenced to life in prison without parole, the Amnesty International study found no juvenile lifers there. States that don't allow life-without-parole sentences for juveniles are Alaska, Kansas, Kentucky, Maine, New Mexico, New York and West Virginia; the District of Columbia also forbids them.
The report referenced in this article is entitled "The Rest of Their Lives: Life Without Parole for Child Offenders in the United States" and is available at this link. As the title of my post hints, I think that, in the wake of the Roper decision precluding the application of the death penalty to juvenile offenders, the next notable Eighth Amendment battleground could be LWOP sentences for juveniles.
But the data suggests that, while perhaps cruel, LWOP sentences for juveniles are not unusual. Indeed, it is remarkable and telling that Pennsylvania has over 100 more defendants serving LWOP sentences for juvenile offenses than defendants on its death row. That fact alone leads me back to my recent rant that many other defendants besides those on death row merit the attention of public policy groups and others concerned about the operation of our criminal justice system.
Ninth Circuit affirms identical alternative sentence
The Ninth Circuit today affirmed the imposition of an "alternative" sentence identical to a guideline sentence imposed during the Blakely-Booker interregnum in US v. Knows His Gun, No. 04-30302 (9th Cir. Feb. 15, 2006) (available here). Though one cannot help but conjure up bad jokes about fate (or the Vice President) based on the name of the defendant in Knows His Gun, the case merits a serious read by anyone dealing with interregnum sentences in the Ninth Circuit. (Also, for the record, Knows His Gun was convicted of a sexual offense, not a firearm offense.)
Third Circuit rules, en banc, Blakely and Booker inapplicable to restitution and forfeiture
In a lengthy and thoughtful opinion (with notable concurrences and dissents), the Third Circuit en banc today in US v. Leahy, No. 03-4490 (3d Cir. Feb. 15, 2006) (available for download below), declared Blakely and Booker inapplicable to restitution and forfeiture judgments. Here is the majority's summary of its holding:
Because, in our view, restitution under the VWPA and the MVRA is not the type of criminal punishment that evokes Sixth Amendment protection under Booker, we conclude that the amount a defendant must restore to his or her victim need not be admitted by the defendant or proved to a jury beyond a reasonable doubt. As to forfeiture, based upon the Supreme Court's decision in Libretti v. United States, 516 U.S. 29 (1995), we conclude that the amount a defendant must forfeit also need not be admitted or proved to a jury beyond a reasonable doubt.
UPDATE: Leahy can now also be accessed at this link, and a (too) quick review reveals that this is a truly fascinating opinion with lots of facets that merit commentary (such as the fact that Justice Alito was at one point involved in the case but did not participate in the final decision). I hope to have time for more substantive commentary soon, and in the meantime I encourage readers to provide insights in the comments.
February 14, 2006
Notable (unpublished) 11th Circuit reasonableness statement
An eagle-eyed reader tonight pointed me to US v. Lisbon, No. 05-12637 (11th Cir. Feb. 10, 2006) (available here), an unpublished decision in which the panel states flatly: "A sentence within the guidelines range is not presumptively reasonable. United States v. Talley, 431 F.3d 784, 787 (11th Cir. 2005)." By my lights, this important assertion in Lisbon may read too much into Talley, which by my reading only expressly states that a guideline sentence cannot be per se reasonable. Nevertheless, if Eleventh Circuit judges understand this to be the rule of Talley, the circuit split over reasonableness review is starting to deepen. (In a forthcoming post, I hope to do a reasonableness circuit review.)
Judge places restrictions on California execution method
As well covered by Howard Bashman, who provides here links to press coverage, today a federal judge refused to stop California from executing a death row defendant next week as long as certain conditions are met as part of the state's lethal injection protocol. This AP article explains:
A federal judge ruled Tuesday that California must change its lethal injection method for the execution of Michael Morales next week because the current mix of drugs may constitute cruel and unusual punishment.
U.S. District Judge Jeremy Fogel in San Jose declined to immediately postpone Morales' Feb. 21 scheduled execution, but he ordered the state to either have an expert present to ensure he's unconscious from a sedative or replace a three-drug death potion with a lethal dose of barbiturate.
The next stop, I would expect, will be the Ninth Circuit and then SCOTUS may get a chance to play, too.
My love letter to Booker?
Perhaps as a fitting follow-up to my Valentine week sentencing wish list, today I am able to post what might be viewed as my own personal love letter to Booker. I now have a complete first draft of an article entitled "Conceptualizing Booker," which is due to appear in the Arizona State Law Journal following this great conference. The draft article, which can be downloaded below (and is still rough in many spots), tries to bring conceptual order of both parts of the Booker opinion. Here is a overview from the introduction:
As explained in Part I of this Article, Booker comes into sharper conceptual focus when located within broader stories about sentencing reform and constitutional jurisprudence. Indeed, reflecting on sentencing history and recent reforms reveals a simple idea that helps unlock the conceptual mystery presented by Booker. This idea is that sentencing is a distinct enterprise in the criminal justice system — and thus should permit a distinct constitutional structure — only if and when sentencing decision-makers are exercising reasoned judgment.
Building on this foundation, Part II of this Article will explain how the two parts of the Booker opinion can be conceptually harmonized around the idea that broad judicial power at sentencing can be justified if and only when judges are exercising reasoned judgment. In other words, Part II will explain that Booker's conceptual core — what we might call the tao of Booker — is best understood not in term of vindicating the role of juries and the meaning of the Sixth Amendment's jury trial right, but rather in terms of vindicating the role of judges and the meaning of sentencing as a distinct criminal justice enterprise defined and defensible in terms of the exercise of reasoned judgment.
Part III of this article will then briefly explore some implications of this conceptual vision of Booker. As explained in this Part, conceptualizing Booker as a decision vindicating the role of judges exercising reasoned judgment at sentencing has important implications for the Supreme Court's still developing Sixth Amendment jurisprudence and also for how lower courts should approach federal guideline sentencing in the wake of Booker.
Notable split capital habeas ruling from the Fourth Circuit
A split panel of the Fourth Circuit issued interesting opinions in Robinson v. Polk, No. 05-1 (4th Cir. Feb. 14, 2006) (available here), in the course of rejecting a North Carolina death-row inmate's habeas claims. Here is the opening paragraph from the majority's ruling in Robinson:
Marcus Reymond Robinson, a North Carolina death-row inmate, appeals the district court's denial of his habeas petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 2005). We granted a certificate of appealability to consider two claims raised by Robinson: (1) that the trial court's jury instructions during the guilt phase of his trial violated the Eighth Amendment; and (2) that a juror's recitation of a Biblical passage during sentencing deliberations violated the Sixth Amendment. Applying the deferential standard of review required by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we conclude that the North Carolina court's decision denying Robinson relief on these claims was not an unreasonable application of clearly established federal law. Accordingly, we deny Robinson's petition and his request for an evidentiary hearing on his Bible claim.
Notably, Judge King "most strenuously" dissents on the Sixth Amendment issue. Here is how he frames his concern:
[W]hen a jury's deliberations have been contaminated by an improper external influence — even if that influence relates to the Bible of England's first Stuart King — public confidence in our judicial system is undermined and the jury's verdict must not be enforced.
Seventh Circuit rejects Eighth Amendment challenge to child porn mandatory minimum
The Seventh Circuit today in US v. Gross, No. 05-1538 (7th Cir. Feb. 14, 2006) (available here) has rejected an Eighth Amendment challenge to a 15-year mandatory minimum sentence in a child pornography case. Here is the opening paragraph in Gross:
Kerby Gross has had a sad and troubled life marked by his experiences as a victim and perpetrator of child sexual abuse. He is before us after pleading guilty to distributing child pornography, and he asks us to consider whether the application of the mandatory minimum sentence in 18 U.S.C. § 2252A(b)(1) to him constitutes cruel and unusual punishment in violation of the Eighth Amendment. Because we conclude that Gross’s sentence of fifteen years (the mandatory minimum) is not grossly disproportionate and therefore does not violate the Eighth Amendment, we affirm.
Third Circuit weighs in on Booker
In a lengthy and thoughtful opinion, the Third Circuit today has weighed in on a number of Booker sentencing and appellate review issues through US v. Cooper, No. 05-1447 (3d Cir. Feb. 14, 2006) (available here). Cooper covers a lot of ground (and arguable produces some circuit splits along the way), and here is a segment of its nuanced approach to post-Booker appellate review:
At least one court has held a sentencing judge is presumed to have considered all of the § 3553(a) factors if a sentence is imposed within the applicable guidelines range. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). We decline to follow this approach. Although a within-guidelines sentence demonstrates the court considered one of the § 3553(a) factors — namely, the guidelines range itself, 18 U.S.C. § 3553(a)(4) — it does not show the court considered the other standards reflected in that section, assuming they were raised....
In addition to ensuring a trial court considered the § 3553(a) factors, we must also ascertain whether those factors were reasonably applied to the circumstances of the case. In doing so, we apply a deferential standard, the trial court being in the best position to determine the appropriate sentence in light of the particular circumstances of the case.
While we review for reasonableness whether a sentence lies within or outside the applicable guidelines range, ... it is less likely that a within-guidelines sentence, as opposed to an outside-guidelines sentence, will be unreasonable. The advisory guidelines range is itself one of the § 3553(a) factors, 18 U.S.C. § 3553(a)(4), and continues to play an integral part in sentencing decisions....
Although a within-guidelines range sentence is more likely to be reasonable than one that lies outside the advisory guidelines range, a within-guidelines sentence is not necessarily reasonable per se. Otherwise, as several Courts of Appeals have concluded, we would come close to restoring the mandatory nature of the guidelines excised in Booker.... Nor do we find it necessary, as did the Court of Appeals for the Seventh Circuit in United States v. Mykytiuk, to adopt a rebuttable presumption of reasonableness for within-guidelines sentences. Appellants already bear the burden of proving the unreasonableness of sentences on appeal.
To sum up, appellants have the burden of demonstrating unreasonableness. A sentence that falls within the guidelines range is more likely to be reasonable than one outside the guidelines range. There are no magic words that a district judge must invoke when sentencing, but the record should demonstrate that the court considered the § 3553(a) factors and any sentencing grounds properly raised by the parties which have recognized legal merit and factual support in the record.
Noably, Judge Aldisert writes a long separate opinion to explain his "agreement with the government" when it contends that his court does not have "jurisdiction under 18 U.S.C. § 3742(a)(1) to review Cooper's argument that the sentence imposed by the District Court was unreasonable."
February 13, 2006
Double developments in California capital case
The Morales case in California, in which an execution is scheduled next week, continues to make headlines in two different ways:
- As detailed in this AP article, "Kenneth Starr and a Los Angeles attorney said Monday they would withdraw unreliable affidavits from jurors submitted to Gov. Arnold Schwarzenegger as part of a bid to spare a murderer and rapist from execution." (More background is here and here on all the clemency ugliness.)
- Meanwhile, as detailed in this San Jose Mercury News article, a "federal judge in San Jose is weighing alternatives to California's current lethal injection procedures as he nears a decision Tuesday on whether to allow the state's next execution to proceed on Feb. 21." (More background is here and here on all the lethal injection litigation.)
Blakely and Booker action at the Ninth Circuit's judicial conference
With thanks to Howard for the link, I see from this news release that the theme of the Ninth Circuit's judicial conference this summer is "Seismic Shifts in the Law and in Our Lives." That document explains that "general sessions will focus on sentencing, juries, natural disasters, court security and disaster planning, and judicial wellness." By my lights, all of these topics could be viewed as various aspects of Blakely and Booker, save perhaps court security.
Professor Bowman's latest fix on the post-Booker world
Now available via this link at SSRN is Professor Frank Bowman's latest opus, "The Year of Jubilee...or Maybe Not: Some Preliminary Observations about the Operation of the Federal Sentencing System After Booker." As the SSRN abstract explains, Frank's article explores "available data on the operation of the federal sentencing system during the eleven months" following Booker. Providing a much fuller elaboration of some points rehearsed in this Debate Club debate, Frank's article is chock full of important observations and trenchant insights about post-Booker developments.
There is much to highlight in this work, and I especially recommend Frank's concluding thoughts in the final part of the article. Here is a sample from that section:
[C]onsider four facts about 2005. First, in 2005, the majority of all federal judges were appointed by Republican presidents and the United States Department of Justice was in the hands of a Republican Administration. Second, in 2005, prosecutors initiated sentences below the guideline range twice as often as did judges. Third, in 2005, prosecutors as well as judges sought sentences below the guideline range more often than they had in 2004. Fourth, during 2005, in an advisory sentencing guidelines system operated by a predominantly Republican judiciary and a markedly conservative Republican Justice Department, almost forty percent of all sentences were outside the guideline range and the ratio of sentences below the applicable guideline range to those above it was roughly 22-to-1.
These facts about the post-Booker experience reinforce conclusions many observers have reached about federal sentencing throughout the Guidelines era. First, the behavior of the careful, cautious, public-safety-conscious judges and prosecutors who run the federal criminal justice system strongly suggests that they believe the severity of sentences called for by the guidelines is often (though by no means always) greater than necessary to achieve the ends of justice. Second, the high severity levels that characterize the federal system can only be maintained by unremitting efforts at central control of the federal criminal process....
The simplest lesson is that we have a federal sentencing system with a severity level that, at least for some common offenses, is pegged higher than the day to day judgments of the legal professionals who operate it will support. Because the severity level of the system is consistently at odds with the professional judgments of federal judges and prosecutors, only tight centralized controls can keep it propped up. Those tight central controls in turn breed resentment, evasion, and institutional conflict. If one is willing to grant that the judgment of frontline sentencing actors is entitled to considerable deference when making sentencing rules, one component of any post-Booker reform proposal should surely be a serious, bipartisan, inter-branch, and interdisciplinary re-examination of at least those sentencing levels and guidelines rules most productive of evasion by the front-line actors who know the system best....
[S]omeone needs to remind federal policymakers of an obvious truth — if laws are widely and persistently evaded by the very officials assigned to enforce them, at some point one should start questioning the wisdom of the laws rather than the fidelity of the enforcers. In the end, one very good way to promote guidelines compliance is to write guidelines that produce outcomes those who run the system are happy to accept.
Ninth Circuit orders briefing on post-Booker jurisdiction
The Ninth Circuit today has issued this notable order in US v. Plouffe:
The parties are directed to file supplemental letter briefs addressing whether the court has jurisdiction to review the reasonableness of Appellant's sentence, which is within the Guidelines range, in light of United States v. Booker, 543 U.S. 220 (2005); our pre-Booker precedent such as United States v. Reed, 914 F.2d 1288 (9th Cir. 1990), and United States v. Pelayo-Bautista, 907 F.2d 99 (9th Cir. 1990); and the holding of Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) (en banc).
This order raises so many questions: e.g., why did it take 13 months for the Ninth Circuit to spot this issue and hasn't it come up before and been briefed thoroughly in other cases? Of course, the key question is whether this panel might believe it lacks jurisdiction to review a within-guideline sentence after Booker.
As noted in prior posts, the Seventh and Eighth and Eleventh Circuits (and maybe others?) have all expressly rejected the government's claim that an appellate court lacks jurisdiction to review a within-guideline sentence for reasonableness after Booker. In addition, many (all?) other circuits have implicitly addressed this issue be exercising jurisdiction to review such sentences.
Critically, though, as explained here, while the government has been losing the jurisdictional battle, it keeps winning the reasonableness war: in the 13 months since Booker, we still have not seen one single circuit court decision reversing a correctly-calculated, within-guideline sentence as unreasonable. Unless and until the circuit courts put teeth into reasonableness review, defendants are just claiming Pyrrhic victories when prevailing on the jurisdictional issue.
Seventh Circuit upholds long child porn sentence for former Catholic priest
The Seventh Circuit today in US v. McCaffrey, No. 03-2189 (7th Cir. Feb. 13, 2006) (available here), affirms a 20-year sentence for a former priest who pled guilty to receiving and possessing child pornography. This ruling seems sure to make some headlines headlines, in part because the sentence was enhanced based in part of "McCaffrey's history of sexually abusing minors" when he was a priest (which apparently were never the basis for a criminal charge). Here is one interesting passage from the Seventh Circuit's holding:
We find that under the unique circumstances at hand, the evidence of McCaffrey's crimes should be considered the equivalent of convictions. Specifically, in light of McCaffrey's explicit on-the-stand confessions during the sentencing phase, corroborated by extensive victim testimony and contemporaneous documentary evidence, the acts were proven beyond a reasonable doubt. Thus, we conclude that the district court properly used the defendant's admitted, uncontroverted, and corroborated acts of abuse to justify two distinct upward departures from the guidelines.
More on reasonableness (and ex post facto) from the circuits
The Sixth and Eighth Circuits have provided some reasonableness opinions to kick off the week. In US v. Richardson, No. 05-1260 (6th Cir. Feb. 13, 2006) (available here), the Sixth Circuit does a reasonable job synthesizing its recent work on within-guideline sentences receiving a presumption of reasonableness (here and here). Here are choice quotes from Richardson:
This rebuttable presumption does not relieve the sentencing court of its obligation to explain to the parties and the reviewing court its reasons for imposing a particular sentence. Even when selecting a presumptively reasonable sentence within the Guidelines range, a district court must articulate its reasoning sufficiently to permit reasonable appellate review, specifying its reasons for selecting the specific sentence within that range.... We emphasize the obligation of the district court in each case to communicate clearly its rationale for imposing the specific sentence. Where a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it. This assures not only that the defendant can understand the basis for the particular sentence but also that the reviewing court can intelligently determine whether the specific sentence is indeed reasonable.
Meanwhile, in US v. Kelly, No. 05-1527 (8th Cir. Feb. 13, 2006) (available here), the Eighth Circuit affirms an above-guideline sentence as reasonable. Along the way, the Kelly court suggests that a district court does not have to make additional findings of fact to support exercising its post-Booker discretion to vary from the guidelines. The Kelly court also quickly rejects the defendant's contention that the imposition of an above-guideline Booker variance for a pre-Booker crime violates ex post facto principles. This holding is the first published opinion I can recall expressly rejecting an ex post facto claim concerning a sentence involving an above-guideline Booker variance.
February 12, 2006
A Valentine week sentencing wish list
For a long-married fellow like me, Valentine's Day feels like being an Olympian heavily favored to win a gold: if I perform well, I will only meet expectations; if I perform poorly, many are disappointed and my reputation can be tarnished. Nevertheless, I am looking forward to this Valentine week with hope that some sentencing-related wishes might be fulfilled by others:
US Supreme Court: I would love a cert grant in the major state Blakely cases that are scheduled to be conferenced this Friday (background here and here and here), in part because I am so curious to find out what Justice Alito and Chief Justice Roberts think about Blakely (background here and here).
State Supreme Courts: I would love decisions in major Blakely cases that the Ohio Supreme Court has been considering for nearly seven months (background here) and that the Michigan Supreme Court has been considering for over three months (background here).
US Sentencing Commission: I would love new data about the post-Booker world, especially since it's been more than five weeks since the USSC's last data report (background here). I would also love some official news about when we might expect the USSC's comprehensive Booker report. Post-Booker patience may be a virtue, but mine is short.
US Department of Justice: I would love a thoughtful and public DOJ report on the pros and cons of the post-Booker world from the perspective of federal prosecutors. We've seen such a report from federal defenders in a (long and powerful) letter to the USSC. I'd now like to hear the other side, perhaps through a similar letter to the Commission.
Circuit and District Courts: I would love a lot more decisions, like those recently from the Sixth Circuit and Judge Adelman and Judge Bataillon, which take both parts of the Booker ruling seriously and give focused attention to the plain text of 3553(a).
A Booker Pro Bowl
Sentencing action has been fascinating lately — from an ugly clemency spat and lethal injection litigation in the capital arena to a prosecutorial statement against sex offender residency restriction and California's gendered de-incarceration and a human right hearing on mandatory minimums in the non-capital arena. But the Booker action never disappoints, and there has been a lot of all-star activity on the Booker playing field of late. Here are some topical highlights:
DISTRICT COURT DEVELOPMENTS AND COMMENTARY
DISTRICT COURT DEVELOPMENTS AND COMMENTARY
- Judge Adelman provides more post-Booker wisdom
- More strong work by Judge Bataillon on Booker and the sentencing process
- Groundbreaking work in habeas from district courts
CIRCUIT COURT DEVELOPMENTS AND COMMENTARY
- Why a "presumption of reasonableness" is troubling
- The ugly look of reasonableness review
- Big Fourth Circuit opinion on reasonableness review
- Sixth Circuit reasonableness bullfrogs jumping around
- Seventh Circuit addresses co-defendant "disparity"
- Ninth Circuit backs away from presumption of reasonableness
- Important Booker twosome from the Tenth Circuit
SENTENCING COMMISSION DEVELOPMENTS AND COMMENTARY
- Post-Booker patience is a virtue, perhaps
- Timelines for USSC Booker report and more detailed Booker data?
- Friday afternoon ranting about the post-Booker world
- What is the Sentencing Commission fiddling while the crack guidelines burn?
- A loud deafening silence from the Sentencing Commission
Groundbreaking work in habeas from district courts
Two recent habeas rulings by federal district courts merit mention because both seem to break important new ground:
- In Bretan v. US, 2006 WL 238994 (SDNY Jan. 31,2006), Judge Kaplan essentially holds that it was deficient performance for defense counsel not to raise and preserve an Apprendi issue in the application of the federal guidelines after cert was granted by the Supreme Court in Blakely in October 2003. In Bretan, Judge Kaplan does not grant relief because of the defendant's failure to establish prejudice from his counsel's deficient performance, but I would imagine other defendants bringing ineffective assistance claims might be able to make such a showing.
- In US v. Peth, 2006 WL 278560 (WD Wash. Feb. 02, 2006), Judge Martinez essentially holds that Crawford is applicable to a sentencing determination. Though in Peth there is no direct consideration of Crawford's applicability at sentencing, the upshot of the grant of habeas in the case seems to extend Crawford's reach.
Both of these rulings were brought to my attention by readers, which confirms my instinct that I cannot find the important jurisprudential needles in the large habeas haystack. Readers are, of course, always encouraged to send me info about cases that seem important or interesting.
More strong work by Judge Bataillon on Booker and the sentencing process
Keeping pace with Sentencing Hall of Famer Judge Lynn Adelman, who recently issued two notable Booker opinions (discussed here), fellow Hall of Famer Judge Joseph Bataillon has recently produced two more important opinions on post-Booker sentencing procedure and practice: US v. Fleck, No. 8:03-cr-00194 (D. Neb. Feb. 6, 2006), and US v. Beltran-Acre, No. 8:02-cr-00279(D. Neb. Feb. 2, 2006). Both Fleck and Beltran-Acre, which are available for download below, address a range of post-Booker sentencing issues and continue Judge Bataillon's strong and important work on due process and burdens of proof (previously discussed in posts linked below).
Here are just a few of the notable passages from the Fleck opinion:
[E]quating reasonableness with a Guidelines sentence in every case will make the Guidelines again mandatory, triggering the concerns raised in Booker....
Booker's advisory-Guidelines remedy is premised on its substantive acknowledgment that no Apprendi problem arises if a district court is bound only by the statutory maximum with no prospect of a reversal within that range. Thus, the operative factor in application of the remedy is the extent of a sentencing judge's discretion. Within the boundaries of its unfettered discretion, sentencing judges may rely on facts proved by a lower standard than proof beyond a reasonable doubt. Although sentencing courts have more discretion under the present advisory guidelines than under mandatory guidelines, they do not have the sort of "unfettered" discretion, i.e., generally not subject to review, that was given to them in the pre-Guidelines regime.... The constraint on the sentencing court's discretion is now "reasonableness," which remains an elusive concept under evolving law. Whether the constraint of "reasonableness review" cabins this court’s discretion to the point that "advisory" Guidelines effectively become "mandatory" Guidelines, triggering due process concerns, remains to be seen. Accordingly, a finding that sentencing courts may rely on facts proved by a preponderance of evidence to enhance a sentence after Booker does not lead to the conclusion that they must....
In light of the uncertainty of this area of evolving law and in view of the increased discretion afforded to this court under the advisory Guidelines, the court will exercise its discretion in determining the quantum of evidence necessary for enhancing facts. This court continues to believe that the safer course, in order to avoid potential constitutional issues, is to continue to require heightened proof with regard to any facts that increase a sentence to any significant degree. Moreover, in crafting sentences in consideration of the § 3553 factors, the court believes that whatever the constitutional limitations on the advisory sentencing scheme ... it is not "reasonable" to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt.
- A post-Booker burden of proof primer
- In praise of Okai and its burden of proof insights
- Judge Kopf takes on Judge Bataillon on the burden of proof
- Judge Bataillon provides another great take on Booker
- Burdens of proof and a new due process of sentencing
- More about beyond a reasonable doubt at sentencing
- Requiring proof beyond a reasonable doubt in any legislative fix
- Revised draft of Pondering Modern Sentencing Process
Another lethal litigation update
The Kansas City Star has two informative pieces about an on-going lethal injection scrummage: this piece details that an Eighth Circuit panel will hear oral argument in April in the Missouri litigation, and this piece discusses more broadly the law and facts surrounding challenges to the constitutionality of lethal injection.
Meanwhile, in this Baltimore Sun commentary, Professor Steven P. Grossman explores whether capital punishment is worth all the trouble it produces: "We have long debated whether capital punishment is just. It is time we ask whether it is worth the price that we pay for it."
Related recent 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
UPDATE: The always effective Death Penalty Information Center now has this helpful summary of all the lethal injection litigation developments, which details that SCOTUS involvement has led to stays in four case and allowed executions to go forward in four other cases.