February 25, 2006
The ABC's of Cunningham
The biggest news of an amazing sentencing week, media headlines notwithstanding, was the Supreme Court's cert grant in Cunningham, the California Blakely case. And the folks at the First District Appellate Project — which has this website that's the go-to locale for all California Blakely stories — have responded with this interesting document entitled "The ABC's of Preserving Apprendi-Blakely-Cunningham Claims Following the Cunningham Cert. Grant."
Recent related posts:
Two up-coming (and one past) great sentencing events
'Tis the season for academic conferences of various sorts, and two great-looking up-coming Booker events merit note:
- As detailed here, at Fordham School of Law on March 7 there will be a program entitled "Sentencing under Advisory Guidelines: The View From District Judges" in which nearly all my favorite federal district judges are scheduled to participate. With Judges Adelman and Gertner and Kopf and Lynch and Presnell all involved, the event may be one of the largest gathering of member of my (imaginary) Sentencing Judges Hall of Fame.
- As detailed here, at the the Pacific McGeorge School of Law on March 10 there will be this symposium to consider "the issues raised by the Booker opinions as well as post-Booker sentencing practice in the federal courts." The speak list is impressive, and the issues covered looks thoughtful and comprehensive.
Death penalty news and notes
- From Georgia, this story details that former First Lady Rosalynn Carter has "joined the call for a moratorium that would put the use of the death penalty in Georgia on hold."
- From Iowa, this story details that a proposal to adopt the death penalty for certain murders has moved forward in the state House Judiciary Committee, but appears to lack sufficient support in the state Senate to gain passage.
- From Oregon, pieces here and here follow-up on the Supreme Court's ruling this week in Guzek (details here) and suggest the defendant may have another decade worth of appeals before facing execution for a murder committed in 1987.
Karl Keys over at Capital Defense Weekly also has this review of an amazing week that was.
February 24, 2006
Pho shame and a test for DOJ (or DOP)?
As my commentary here highlights, I cannot quite believe the crack(ed) opinion by the Fourth Circuit today in Eura. One reason for my aggravation is because, on the facts, Eura seems to go beyond the seemingly similar, but much more nuanced, ruling by the First Circuit in Pho.
I have linked below my commentary on Pho. Though I still believe Pho was wrongly decided, I explained here that the decision was not too mischievous because it still recognized district judges' critical (and constitutionally necessary) post-Booker authority to refuse to follow the crack guidelines as long as that decision is "individualized." In Eura, the district court apparently stressed that he was making an "individual" judgment in "this instance." That likely would and should be enough even for the Pho court, but it was not enough for the Fourth Circuit panel in Eura.
Though perhaps I am over-reacting (and I encourage commentors to calm me down if I am), I view Eura as an interesting test of whether DOJ is really a Department of Justice or a Department of Prosecutors. As explained here, Eura as written seems to subvert Congress' explicit text in 3553(a) and also the constitutional holding in Booker. Though I am sure prosecutors are happy with the outcome, anyone truly concerned about justice might at least want the Fourth Circuit to tweak some of the problematic aspects of the ruling in Eura.
Recent related posts:
- Why Pho seems wrong: what "law" was violated?
- More Pho follow-up
- Framing Pho: keeping the decision from seeming too wrong
- What is the Sentencing Commission fiddling while the crack guidelines burn?
Fourth Circuit on crack (guidelines, that is)
Capping off a big (and discouraging) Booker week for the Fourth Circuit, a panel today in US v. Eura, No. 05-4437 (4th Cir. Feb 24, 2005) (available here) has reversed a district court's decision to vary from the 100:1 crack/powder ratio. Here is the panel's introductory account of its holding:
The principal question presented in this appeal is whether a district court in the post-Booker world can vary from the advisory sentencing range under the Guidelines by substituting its own crack cocaine/powder cocaine ratio for the 100:1 crack cocaine/powder cocaine ratio chosen by Congress. For the reasons stated below, we conclude a court cannot vary from the sentencing range in such a manner.
Commentary (likely to be quite critical) will follow once I have a chance to read the opinion closely.
UPDATE: I have only made it to page 10 of Eura and I am already outraged. There is a passage on page 10 which rewrites the plain terms of a clear statute. On page 10, the majority in Eura, in the course of describing post-Booker sentencing, states: "If a sentence within the sentencing range serves the factors set forth in § 3553(a), the court should impose a sentence within that range that best serves those factors." But this is clearly and absolutely not what Congress has told sentencing courts to do in section 3553(a) of the Sentencing Reform Act. The clear plain textual command of 3553(a) set forth by Congress states very simply: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." Tellingly, the Eura majority never discusses this provision of 3553(a).
As I read Eura, it strikes me as an example of judicial activism at its worst. I wonder if those who decry judicial activism in other contexts will step up to complain about this example. I wonder if any purported textualists on the Fourth Circuit or on the Supreme Court might be inclined to do something about the Eura panel's failure to follow Justice Scalia's simple aphorism that the "text is the law, and it is the text that must be observed."
MORE: The sad and depressing reality of Eura continues on page 12 when the majority suggests the district court's decision to sentence the defendant to 10 years (rather than the 11.5 years the guidelines advised) some how serves to "subvert Congress' expressed will." By my lights, the Eura decision subverts Congress' explicit text by rewriting the requirements of 3553(a).
In addition, by ordering the district court to resentence the defendant within the guidelines, the Eura court also subverts the constitutional holding in Booker. How are the guidelines "effectively advisory" if the district judge lacks discretion to deviate from them in this case? Notably, the guideline range in this case was established through judicial fact-finding of an obstruction of justice enhancement, and so the merits portion of the Booker opinion (and thus the Constitution itself) has been transgressed by the result in Eura.
February 24, 2006 in Death Penalty Reforms, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (8) | TrackBack
The challenging politics of reform
Apparently the possible unconstitutionality of the California sentencing system (background here and here) is the least of that state's criminal justice problems. The Los Angeles Times yesterday ran this interesting editorial which spotlights other problems with California justice and also the challenging politics that can impede sound reforms. Here is a snippet:
State prisons are already overflowing, with twice the number of inmates they were designed to hold... Part of the reason for the huge and growing jail population is a series of get-tough-on-crime laws passed since the 1980s. But another is the gross inadequacy of rehabilitation programs at state prisons, including wrongheaded approaches to parole violators, youth offenders and women.
California has the second-highest recidivism rate in the United States. Only 21% of the state's parolees successfully complete their term of supervision, according to the U.S. Department of Justice....
Gov. Arnold Schwarzenegger has proposed many sensible reforms to reduce recidivism and lower the prison population, only to be thwarted at every turn by the politically powerful state prison guards union — which opposes anything that could jeopardize jobs for its members. In 2004, pressure from the union was a factor in the state's decision to close 300 vocational education programs in the prisons — programs that gave inmates badly needed job skills. Last year, in a move also backed by the guards, the state ended a program that sent nonviolent parole violators to community-based rehabilitation centers or to home detention....
Schwarzenegger hasn't given up trying, partially because he's bound by court orders and settlement agreements to improve prison conditions. He recently released plans to better house and rehabilitate youth offenders, whose experience with the state correctional system too often helps mold them into career criminals, and to move nonviolent female inmates to private community centers.... Schwarzenegger needs to find the backbone to support these reforms with what political capital he has left.
Recent related posts:
Amicus brief on Booker sentencing and review
As detailed in this post, earlier this month there was an en banc argument in two First Circuit cases concerning the standards for post-Booker sentencing and appellate review, and I am hoping that the First Circuit recognizes the troubling aspects of a "presumption of reasonableness" for within-guideline sentences. As documented by the amazing amicus brief filed by the NACDL in the First Circuit (which is available for download below), others are likewise calling on the First Circuit to take a different path than other circuits have.
UPDATE: Thanks to a helpful reader, I can now provide copies of both the NACDL's amicus brief and an amicus brief filed by the federal public defenders in the First Circuit. (I will happily also post the government's brief if someone can send me an electronic copy.)
MORE: Thansk to another hepful reader, I can now provide a copy of the Government's brief in the First Circuit: Download government_1st_cir_en_banc_brief.rtf
Related reasonableness posts:
- Reasonableness review round-up . . . calling Justice Scalia
- Why a "presumption of reasonableness" is troubling
- The ugly look of reasonableness review
- Reasonable complaints about reasonableness review
MORE: At Appellate Law & Practice, S. COTUS adds this great line to all the serious debate over reasonableness review:
"Presumption of Reasonableness" is beginning to sound like the name of a "Law and Order" which, apparently, is a TV show watched by non-lawyers in which prosecutors are saints and fight crime or something.
The lethal injection debate rages on
The fall-out from California's struggles to kill Michael Morales (background here and here) continues to generate a wide range of media coverage. In addition to a number of NPR stories noted here at How Appealing, there is interesting coverage in Time, the Christian Science Monitor, the Houston Chronicle and by Reuters.
Some recent related posts:
- Editorials and commentary about Morales case
- Capital punishment headlines
- The realities of sentencing headlines
February 23, 2006
The latest must-read on Blakely/Booker
Professor Ron Wright, throughout his copious work on federal and state sentencing systems, always adds an insightful and distinctive perspective to our understanding of sentencing reform. (Bias acknowledgment: Ron is a co-author on my casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines.) Ron's latest paper (available here), entitled "The Power of Bureaucracy in the Response to Blakely and Booker," is no exception. Here is part of the abstract:
How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences? The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy. Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible. The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing systems to the upset from Blakely and Booker.
February 23, 2006 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Dead Booker walking?: disparity in theory and practice
AG Alberto Gonzales' speech last week may foreshadow a Booker fix proposal coming from DOJ before long (details here), which inspires me to return to my "Dead Booker walking?" series. As detailed in this post, this series explores arguments which might be made in support of new sentencing legislation in response to Booker. In this installment, I will focus on sentencing disparity in theory and in practice.
Since Booker was decided, the Justice Department has warned that an advisory guideline system might increase sentencing disparities. And, in a speech last summer calling for a Booker fix (basics here, commentary here and here and here), Gonzales asserted that "evidence the Department has seen since the Booker decision suggests an increasing disparity in sentences." But, for sensible policy debate, it is important to unpack the concept of sentencing disparity in theory and in practice.
Sentencing disparity in theory (the challenge of assessing "true" disparity): Some may point to different "guideline compliance" rates to suggest unwarranted sentencing disparity from region to region. However, Justice Alito has effectively explained — in this 1992 Federal Sentencing Reporter article entitled "Reviewing the Sentencing Commission's 1991 Annual Report," 5 Fed. Sent'g Rep. 166 — why simple "comparisons of departure rates of different circuits and districts [are] unsound":
[D]ifferent districts — generally for sound reasons — prosecute very different mixes of cases.... Consequently, no reliable inter-district comparisons can be made without controlling for differences in the mix of offenses prosecuted.... Do I mean to say that all inter-district disparities indicated by the Commission's statistics can be attributed to such differences in their case mix? Absolutely not. The "true" disparities, if I may use the term, may be smaller than those suggested by the Commission's numbers, or they may actually be even greater. The point is that we just can't tell from the Commission's statistics, and we will not be able to tell until a much more sophisticated analysis of each district's cases is performed.
Moreover, beyond Justice Alito's astute insights about case mix, one must realize that the federal guidelines themselves can produce or exacerbate certain disparities, which in turn make differences in "guideline compliance" rates a poor proxy for "true" sentencing disparity. Professor Albert Alshuler makes this important point effectively in his recent contributon to the Stanford Law Review's great sentencing reform issue: "When viewed from any coherent normative perspective, the Federal Sentencing Guidelines have failed to reduce disparity and probably have increased it. Even on paper, these Guidelines often fail to treat like offenders alike, and the Guidelines are worse in practice than on paper."
Sentencing disparity in practice (the realities of prosecutorial discretion): Beyond theoretical problems with using "guideline compliance" rates to assess "true" disparity, the Sentencing Commission's post-Booker data highlight that prosecutorial discretion has a much bigger impact on "guideline compliance" rates than does judicial discretion. As the latest USSC data document, nationwide sentences below the guidelines are twice as likely to be the result of a prosecutor's recommendation to impose a lower sentence than the result of an independent determination by the sentencing judge.
This reality provides important perspective on data concerning post-Booker "variances." The USSC data show that judges nationwide are using their new post-Booker authority to reduce sentences below the range in less than 1 out of every 10 cases. But prosecutors nationwide are using their long-standing authority to request sentences below the range in nearly 1 out of every 4 cases. If Congress really believes that the overall "guideline compliance" rate is of fundamental importance, it should call in DOJ officials to account for their practices before worrying too much about how sentencing judges are using their new discretion after Booker.
Moreover, the post-Booker sentencing process reinforce why any federal policy-maker genuinely concerned about sentencing disparities ought to focus on the exercise of prosecutorial discretion before worrying too much about judicial discretion. Even after Booker, district judges have to provide a reasoned explanation for the exercise of their discretion, and each sentencing decision is subject to appellate review. Prosecutors never have to explain their exercise of discretion, nor are their decisions subject to serious review.
Prior posts in this series:
Editorials and commentary about Morales case
In addition to all the capital headlines I assembled here, this morning's papers have a lot of interesting editorials and commentary prompted by California's struggles to kill Michael Morales (background here and here).
From the San Jose Mercury News: "The nature of the death penalty obligates the state to put every aspect of the process under a microscope "
From the Los Angeles Times: "Like the crimes for which it is a punishment, the death penalty is an affront to civilized society. It should not be reformed — it should be abolished."
And I especially liked two commentaries from the San Francisco Chronicle that highlight the paradox of heightened concerned about protocols: one notes that "any debate over what's inhumane about the death penalty ought to be about the death part. Isn't the death itself a bit more critical, ethically speaking, than the manner in which the death is brought about?"; and another says it "is a sure sign of a society's decline when the governing elite care more about how things are done than what they do."
Reasonable complaints about reasonableness review
I have been bemoaning the ugly look of reasonableness review as circuit courts affirm all within-guideline sentences and nearly all above-guidelines sentences, while many below-guideline sentences get reversed. Today I see that I am not alone complaining about reasonableness review: (1) the comments here to my post about the Fourth Circuit's Moreland opinion rightfully question that decision's creation of a new (and unexplained) de facto mandatory minimum through reasonableness review, and (2) Steve Sady in this long post at the Ninth Circuit Blog assails the presumption of reasonableness for within-guideline sentences.
Steve Sady's post has many highlights and insights, and I hope at least some circuits will come to appreciate the many problems with a guideline-focused approach to reasonableness review. Especially cool in Steve's post is this diagram, which purposes to chart "the spread of what [Steve] thinks we should call the Presumption of Reasonableness Virus (PRV)."
Related reasonableness posts:
- Reasonableness review round-up . . . calling Justice Scalia
- Why a "presumption of reasonableness" is troubling
- The ugly look of reasonableness review
New batch of (old) post-Booker data
Providing a belated Valentine's Day present, the US Sentencing Commission has at this link a new batch of post-Booker sentencing data on its Booker webpage. Interestingly, this latest post-Booker data run, dated Feb. 14, shows a slight up-tick in the number of nationwide within-guideline sentences since the last data report (up to 61.9% from 61.2%). Though I doubt this is a statistically significant change, I must speculate that the ugly pattern of reasonableness review (discussed here and here) could be leading a few more district judges to adhere to the guidelines.
Disappointingly, this latest data run does not provide any new additional types or break-downs of data. As I have stressed in prior posts here and here and here, more detailed data are needed for a complete view of the post-Booker world. At the district court level, I am especially eager to see data on the most common grounds for departures and variances, as well as data on within- and outside-guidelines sentences for first and/or non-violent offenders. And, despite the virtues of Booker patience, I am really craving any sort of data on appeals and reasonableness review.
Food for sentencing thought
Two recent sentencing-related items from major papers provide lots of interesting food for thought:
- Adam Liptak at the New York Times has this fascinating article explaining why it "is increasingly expensive to be a criminal." The piece explaining that "[a]lmost every encounter with the criminal justice system these days can give rise to a fee." (Hat tip: TalkLeft.)
- Over at the Washington Post, Kansas Republican Senator Sam Brownback proves yet again that he may be the leading progressive on sentencing issues in the US Congress though this letter to the editor. Promoting his bill called the Second Chance Act, Brownback closes his letter with this sentiment: "We should not be resigned to allowing generation after generation to return to prison because they don't have the tools to break the cycle. The Second Chance Act could help stop this pernicious cycle."
February 22, 2006
Capital punishment headlines
Though I find Blakely and Booker issues far more interesting, the media continues (despite my protests) to focus on capital sentencing news. Here are some headline highlights:
- The Supreme Court's decision in Guzek (discussed here) is covered this article from Bloomberg, and this AP article discusses both Guzek and today's SCOTUS argument in Holmes v. South Carolina.
- This AP article follows up on the Morales mess (basics here and here), explaining that California's "postponement of an execution because no medical professional would take part amounts to a moratorium on capital punishment in California, home to the largest death row, and could have implications for other states that use lethal injection." The New York Times adds this coverage.
- This article from Georgia notes that a democratic state senator, following up on a recent ABA study, is submitting legislation "calling for a moratorium on the death penalty in Georgia and the appointment of a commission to study purported problems with how the state sends defendants to death row." But the republican state Senate Majority Leader says the bill "dead on arrival. We think the death penalty is fine like it is."
Great Cunningham coverage in the Daily Journal
Thanks to this link via Howard Bashman, we can all now see Brent Kendall's fine coverage of the cert grant in Cunningham in his article entitled "Supreme Court Puts Sentencing In California on Shaky Ground" appearing today in the Daily Journal of California. Everyone interested in Blakely issues should read the whole piece (and also my links below), but here are some highlights:
Criminal sentencing in California was thrown into a state of uncertainty Tuesday as the U.S. Supreme Court agreed to decide the constitutionality of the state's determinant sentencing law, a move that could ultimately force the state to overhaul its three-tiered sentencing system....
Veteran criminal defense lawyer Andrew M. Stein in Bellflower said a U.S. Supreme Court decision that invalidates the California system "would be chaotic." "You'd have to have a completely new and distinct system for how sentencing enhancements are pled, proven and ruled upon," Stein said. Santa Clara University law professor Gerald Uelmen is one of many legal observers who think the state Supreme Court erred in upholding the state's scheme. "We will have a big mess to sort out" if the Supreme Court overturns that ruling, Uelmen said....
State Deputy Attorney General Jeffrey Laurence said it was not surprising that the court decided to review the state's sentencing system "in the sense that the states were going in different directions under their own sentencing schemes." Laurence said he was looking forward to the finality a Supreme Court ruling would provide. He added that he was confident that the state Supreme Court's Black decision would stand.
The Attorney General's Office, Laurence said, was not advocating that prosecutors make any changes to the way they approach cases while they wait for a Supreme Court ruling.... Robert Kalunian, chief deputy public defender for Los Angeles County, noted the vast majority of felony cases reach an agreed upon plea bargain and that those cases are unlikely to be affected. As for cases that will be going to trial, Kalunian said, "If I was a judge, I would be very cautious in sentencing someone to an increased sentence without a finding of fact by the jury." "If the California Supreme Court got it right the first time, we wouldn't be in this situation," he said.
Dwight Moore, the supervising deputy district attorney in San Bernardino County, said that in order to avoid revisiting cases if Black gets overturned, district attorneys could go ahead and ask juries to find aggravating factors. "If it doesn't get overturned, we did some extra work, but if it does, we're covered," Moore said. "That will be decided on a case by case, courtroom by courtroom basis." Moore said that, unlike their defense counterparts, the vast majority of prosecutors think the state court's Black decision was correct. "Every DA must be including in their prayers at night, 'Dear Lord, please let the Supreme Court let Black alone,'" Moore said.
Recent related posts:
Fourth Circuit (thoughtfully) declares below-guideline sentence unreasonable
The Fourth Circuit today in US v. Moreland, No. 05-4476 (4th Cir. Feb. 22, 2006) (available here), continued the ugly pattern of reasonableness review in the circuit courts (discussed here and here) — where we are seeing all within-guideline sentences and nearly all above-guidelines sentences being affirmed as reasonable, whereas many below-guideline sentences are being reversed as unreasonable. But, along the way, the Moreland sets forth a lot of important statements about departure authority and reasonableness review. Here are some snippets:
We believe, however, that so-called "traditional departures" — i.e., those made pursuant to specific guideline provisions or case law — remain an important part of sentencing even after Booker....
"[R]easonableness" is not a code-word for "rubber stamp." Our task is a "complex and nuanced" one, Green, 2006 WL 267217, at *5, requiring us to consider the extent to which the sentence imposed by the district court comports with the various, and sometimes competing, goals of § 3553(a)....
Reasonableness review involves both procedural and substantive components. A sentence may be procedurally unreasonable, for example, if the district court provides an inadequate statement of reasons or fails to make a necessary factual finding. A sentence may be substantively unreasonable if the court relies on an improper factor or rejects policies articulated by Congress or the Sentencing Commission.
Generally, if the reasons justifying the variance are tied to § 3553(a) and are plausible, the sentence will be deemed reasonable. However, when the variance is a substantial one — such as the two-thirds reduction from the bottom of the advisory guideline range that is at issue here — we must more carefully scrutinize the reasoning offered by the district court in support of the sentence. The farther the court diverges from the advisory guideline range, the more compelling the reasons for the divergence must be.
Turning to the particulars of the sentence imposed by the district court, the Fourth Circuit in Moreland ultimately affirms the decision to grant a Booker variance, but rejects its extent (which was from a guideline minimum of 360 months down to the statutory minimum of 10 years).
The Moreland Court says "a variance was warranted here" and notes that "[a]pplication of the career offender guideline is fraught with potential imprecision." However, it also concludes that the circumstances of this case were not "so compelling as to warrant the maximum possible downward variance, i.e., the imposition of the statutory mandatory minimum sentence." And, interestingly, the Court concludes by remanding "for the imposition of a sentence of no less than 20 years imprisonment."
Notable sentencing action in the Ninth Circuit
I am starting to think out-of-work Hollywood screenwriters are in charge of assigning case names in the Ninth Circuit. Last week, as noted here, we had US v. Knows His Gun, and today now brings another installment of US v. Bad Marriage, No. 03-00029 (9th Cir. Feb. 22, 2006) (available here). Funny surnames aside, Bad Marriage appears from a quick read to have some notable sentencing action (along with a fiery dissent). In addition, a few other Ninth Circuit criminal dispositions today (available here) have some sentencing coverage. More commentary later as time permits.
Innocence claims take a hit in Guzek
As Lyle Denniston explains in this post at SCOTUSblog, the Supreme Court today rendered a decision in Oregon v. Guzek (04-928) to this effect:
After an individual has been convicted of murder, that person has no constitutional right to try to head off a death sentence by trying to offer new evidence suggesting that the conviction itself was invalid, the Supreme Court ruled unanimously on Wednesday. States thus are free to put limits on the new innocence-related evidence -- such as alibi evidence -- that may be offered at sentencing.
UPDATE: Especially in light of other litigation mania over the death penalty, the most telling part of Guzek is its procedural history recounted at the outset of the Court's opinion:
[At his initial trial in 1988, the] jury disbelieved [Guzek's] alibi, it convicted Guzek, and it sentenced him to death. Guzek appealed; the Oregon Supreme Court affirmed the conviction; but the court ordered a new sentencing proceeding. Guzek was again sentenced to death; he again appealed; and the Oregon Supreme Court again ordered resentencing. Guzek was sentenced to death for the third time; he again appealed; and yet again the Oregon Supreme Court found the sentencing procedures faulty. Seeking to avoid further errors at the next (the fourth) sentencing proceeding, the Oregon Supreme Court also addressed the admissibility of certain evidence Guzek seeks to introduce at that proceeding, including live testimony from his mother about his alibi.
Notably, the majority in Guzek stresses that "the federal question before us is a narrow one." Indeed, Justice Scalia's concurrence laments the fact that the majority does not conclusively reject "all Eighth Amendment residual-doubt claims." Though throwing much dirt on the claim that the Eighth Amendment provides "a capital defendant the right to introduce at sentencing evidence designed to cast 'residual doubt' on his guilt of the basic crime of conviction," the Court's opinion in Guzek ultimately states that it "need not resolve whether such a right exists."
It will be interesting to see how Guzek is viewed by folks especially concerned about innocence issues. The anti-death penalty crowd might, I suppose, be encouraged that Justice Scalia's opinion garnered the vote of only one of the other seven Justices (Alito did not participate). Because the late Chief Justice Rehnquist likely would have joined Justice Scalia's concurrence, the absence of the new Chief's name on the opinion seems notable.
Yet another amicus crack at crack sentencing
As detailed in posts linked below, Professor Mark Osler (with some input from me) has been developing a series of amicus briefs for different circuit courts explaining why, after Booker, it is reasonable for a district judge not to follow the guidelines' 100-1 crack-powder ratio. A third installment of this brief was recently filed in the Second Circuit in US v. Castillo, and interested readers can download the brief below.
Some related posts:
- Amicus brief in crack sentencing appeal
- Another crack at an amicus brief on crack sentencing
- Insightful report and analysis of Booker on crack
- What is the Sentencing Commission fiddling while the crack guidelines burn?