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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:

February 25, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

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:

In addition, I noticed that the Texas Law Review earlier this month had this terrific symposium on "Punishment Law & Policy."  And videos of this symposium's panels can be accessed at this link.

February 25, 2006 | Permalink | Comments (3) | TrackBack

Death penalty news and notes

In addition to the continuing buzz about lethal injection (reflected in this AP story and this Texas story), there are interesting death penalty developments percolating nationwide:

Karl Keys over at Capital Defense Weekly also has this review of an amazing week that was.

February 25, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

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:

February 24, 2006 in Who Sentences? | Permalink | Comments (2) | TrackBack

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:

February 24, 2006 in Scope of Imprisonment | Permalink | Comments (5) | TrackBack

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.)

Download nacdl_1st_cir_amicus.PDF

Download fpd_1st_cir_amicus.pdf

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:

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.

February 24, 2006 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits | Permalink | Comments (0) | TrackBack

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:

February 24, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

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:

February 23, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

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."

February 23, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

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:

February 23, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

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.

February 23, 2006 in Booker in district courts | Permalink | Comments (1) | TrackBack

Food for sentencing thought

Two recent sentencing-related items from major papers provide lots of interesting food for thought:

February 23, 2006 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

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:

UPDATE: The morning brings a lot more coverage of the Morales case fall-out from many California papers, including the San Jose Mercury News and the San Francisco Chronicle and the Los Angeles Times.

February 22, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

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:

February 22, 2006 in Cunningham coverage | Permalink | Comments (1) | TrackBack

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."

February 22, 2006 in Booker in the Circuits | Permalink | Comments (6) | TrackBack

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.

February 22, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

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.

Justice Breyer's opinion for the Court in Guzek can be accessed at this link, Justice Scalia's concurring opinion (joined by Justice Thomas) is available at this link.  Commentary will follow.

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.

February 22, 2006 in Death Penalty Reforms | Permalink | Comments (39) | TrackBack

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.

Download castillo_amicus_brief_053454cr.pdf

Some related posts:

February 22, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

The realities of sentencing headlines

I have recently ranted about how much time and energy is spent on the death penalty when so many other consequential criminal justice issues merit more attention from public policy groups and the media.  But California developments yesterday, and the subsequent media coverage, perhaps highlight why I may always be tilting at windmills when I complain about our "legal culture of death."

As I explained here, the SCOTUS cert grant in Cunningham, a California Blakely case, will impact of thousands of sentences in California and could impact hundreds of thousands of sentences nationwide.  Even federal sentencing fans must keep a close eye on Cunningham, because the case could mark an important turning point in the Court's Sixth Amendment jurisprudence and it presents a key opportunity for the two new Justices to take stock of this jurisprudence. 

And yet, there has been almost no media coverage of the Cunningham cert grant.  Tellingly, the AP ran this story about the denial of cert in a capital case yesterday, but had no story on Cunningham that I have seen.  Tony Mauro's review of SCOTUS action in this article relegates the Cunningham cert grant to a brief mention (and even gets the name of the case wrong).  The Los Angeles Times today has this very brief account of Cunningham, but it provides no sense of the case's importance.

In contrast, California's struggles to kill death row defendant Michael Morales (basics here and here) has made headlines in nearly every paper in the country.  The Los Angeles Times today has this massive article about the stalled Morales execution (and this companion piece), the AP has had two reporters and major coverage on the case, the New York Times has this story, and nearly every California paper has a piece on the Morales case.  I suppose I just have to resign myself to the reality that, at least when it comes to ink, death will always be different.

February 22, 2006 in Blakely in the States, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

February 21, 2006

Morales execution update ... now on hold

As detailed in this news article, a "federal judge has ruled that tonight's execution of Michael Morales can proceed provided that a licensed medical professional injects at least five grams of sodium thiopental directly into Morales's bloodstream."  This latest ruling by federal judge Jeremy Fogel, coming the day after after two anesthesiologists refused to participate in the lethal injection protocol the judge had previously ordered because of ethical concerns (background here), can be downloaded here:

Download latest_federal_order_in_morales.pdf

I have been told that Morales' attorneys vow to appeal Judge Fogel's order calling it a "violation of due process, absolutely unethical and improper."   We should know before long whether the Ninth Circuit or SCOTUS may jump in this time around.  For some fitting commentary on the Morales case, check out this post by Dan Filler at Concurring Opinions.

UPDATE: As detailed in this AP story, California "has indefinitely postponed Tuesday's planned execution of convicted killer Michael Morales because of a court battle and medical ethics questions surrounding the method of lethal injection."  In related news, I see from this story that the Morales mess in renewing calls foe a moratorium in California:

Saying the state appears "hell-bent" on carrying out "what is essentially a medical experiment to execute a human tonight," a Democratic assemblyman is calling on Gov. Schwarzenegger to declare an immediate moratorium on lethal injection executions in California.

MORE:  This New York Times article suggests that the next event in the Morales case will be a full hearing in May before Judge Fogel.  After all this time and wrangling, the victim's family's voice ought also be heard.  Here is a telling quote from the AP story:

The victim's mother, Barbara Christian, was outraged by the decision.  "I'm totally disillusioned with the justice system. We've been waiting 25 years with the expectancy that he is gonna pay for his crimes," she said. "It feels like we just got punched in the stomach."

February 21, 2006 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Cunningham cert grant: taking stock and reading up

Though the media is focused today on California's struggles to kill Michael Morales (background here [and update here]), the much bigger news for California and nationwide sentencing practices is the Supreme Court's cert grant in Cunningham (basics here).  The folks at Bloomberg News in this story appreciate one reason why Cunningham is so noteworthy: "The dispute may affect thousands of criminal cases around the country."   I would say Cunningham definitely will impact tens of thousands of criminal cases (perhaps hundreds of thousands depending on how SCOTUS approaches what TalkLeft here calls "the quicksand of sentencing law").

I have so much to say about Cunningham, but also lots of time to speak: argument in Cunningham won't be until October and we will probably have to wait until at least this December or next January for a ruling from the Court.  I suppose I am glad SCOTUS will take it time with Cunningham since the case could possibly present an important turning point in the Court's tortured Apprendi-Blakely-Booker jurisprudence and will certainly present a first opportunity for Chief Justice Roberts and Justice Alito to assess the reach and limits of the Sixth Amendment.

For now, I thought I should assemble background reading about Blakely in California and in other states.  The place to begin, in my view, is with the recent Federal Sentencing Reporter issue focused on the "State of Blakely in the States" (details here and available here).  Be sure to read the introductory article in the FSR issue by Steven Chanenson and Daniel Wilhelm, Evolution and Denial: State Sentencing after Blakely and Booker, if you want a short and effective primer on a long state Blakely story.

If you want to focus on just the story in California, you can check out the Cunningham cert papers that are available here from the FDAP, as well as the additional great California sentencing commentary that the FDAP has assembled here

And, for more coverage of California Blakely issues and beyond via blog posts, check out this sample:

February 21, 2006 in Cunningham coverage | Permalink | Comments (3) | TrackBack

Great WSJ article on law reviews, blogs and legal scholarship

As noted in various spots around the blogosphere (here and here) today's Wall Street Journal has this terrifically interesting article entitled "Law Reviews Adapt to New Era" which explores blogs and the future of legal scholarship in various ways.  Needless to say, and as documented by the posts below, these are topics of great interest to me:

February 21, 2006 in On blogging | Permalink | Comments (0) | TrackBack

Applying Roper in South Carolina

As detailed in this AP story, a "convicted murderer who was eligible to be resentenced when the U.S. Supreme Court outlawed capital punishment for youthful offenders can get less than life in prison, the state Supreme Court ruled Tuesday."  The interesting little ruling applying Roper in South Carolina came in State v. Morgan, No. 26116 (S.C. Feb. 21, 2006) (available here).

February 21, 2006 in Death Penalty Reforms, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Of additional SCOTUS interest

In addition to the exciting California Blakely cert grant (basics here), there was some other interesting sentencing-related action from SCOTUS today:

1.  Though not a sentencing case, the Court unanimously addressed (per Chief Justice Roberts) attempts to prosecute members of a religious sect for using hallucinogenic teas in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (04-1084) (available here).  Not only could this ruling perhaps have "war on drugs" implications, but it also includes an interesting riff rejecting Government arguments about the "need for uniformity."  I hope lower courts considering post-Booker sentencing issues take a cue from this unanimous Supreme Court opinion, which treats an overly-broad "need for uniformity" assertion by DOJ with great skepticism.

2.  As detailed on this order list, the Court granted the motion of the Solicitor General to participate in oral argument as amicus curiae in Recuenco, the Blakely harmless/structural error case to be argued in April.  (Lots of background on the complicated Recuenco case can be found in this category archive.)

3.  Also on the order list are A LOT of cert denieds, included some cases that surely raised Booker and other sentencing issues.  As detailed here, at least one capital cert denied is making headlines because of then-Judge Alito's role in the case below.

February 21, 2006 in Who Sentences? | Permalink | Comments (0) | TrackBack

The Morales mess and lethal injection scrummages continue

The Morales capital case in California has been high drama with an amazing cast of characters from Ken Starr to the Terminator and every state and federal judge in between (links below provides some highlights).  But today the drama has been taken to a new level after two anesthesiologists late last night refused to participate in the court-ordered lethal injection protocol because of ethical concerns. 

This AP article provides perhaps the latest update, indicating that prison officials have "rescheduled the execution for 7:30 p.m. Tuesday and said they would employ a different technique: administering a fatal overdose of barbiturate in lieu of the three-drug cocktail typically used in lethal injections." 

Why the rush you ask?  Well: "The prison has until one minute before midnight on Tuesday to execute Morales.  After that, the 'death warrant' expires and officials would have to go back to the trial judge who imposed the death sentence in 1983 for another warrant."

For additional media coverage of the litigation mess over lethal injection, here is a recent newspaper article from Florida entitled, "Death row appeals over injections create legal mess."  And for additional review of the medical ethics surrounding lethal injection, check out this interesting NPR piece with Dr. Priscilla Ray of the American Medical Association's ethics council..

Some related posts:

February 21, 2006 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

Fascinating Sixth Circuit ruling on meth guidelines

Although not quite as exciting as the Blakely case cert grant (basics here), the Sixth Circuit today provides a great read in US v. Martin, No. 04-6428 (6th Cir. Feb. 21, 2006) (available here).  In Martin, the Sxth Circuit in a long and thoughtful opinion rejects a set of statutory and constitutional challenges to the way the US Sentencing Commission "established ratios to estimate the amount of methamphetamine that can reasonably be manufactured from certain precursor chemicals."  Throughthe challenge to the USSC's drug conversion ratio in the guidelines fails in Martin, I think we ough to see more defendants make such broad-side attacks on the construction and application of particular provisions of the guideliens (especially given the poor way, as discussed here and here, the USSC is so far dealing with post-Booker realities).

Also of interest in Martin is a discussion of whether offenses are "related" in the guidelines, which prompts Judge Martin to add a colorful concurrence that further secures his place in the Sentencing Judges Hall of Fame.  Of course, though I love the Austin Powers footnote in the Martin concurrent, whay really made me say "Yeah, baby!" was this passage:

Section 3553(a) instructs district courts to impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" set forth in section 3553(a).  Now, although the calculation of Martin's criminal history score under the Guidelines was seven and led to a sentencing range of 168 to 210 months imprisonment, the district court is not bound to adhere to the Guideline range.  A district court's explicit textual responsibility is to impose "a sentence sufficient, but not greater than necessary to comply with the purposes" set forth in section 3553(a). See also United States v. Foreman, 2006 WL 287365, *5 (6th Cir. 2006). 

Appellate courts then review sentences for reasonableness — reasonableness in light of the factors set forth in section 3553(a), but also in light of whether the district court complied with its own textual responsibility to impose "a sentence sufficient, but not greater than necessary to comply" with these purposes.

February 21, 2006 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

SCOTUS grants cert in California Blakely case

As detailed in this post over at SCOTUSblog, the Supreme Court this morning granted cert in one of the California Blakely cases.  As Lyle Denniston details:

[T]he Court will return to the issue of judges' power to impose sentences based on facts not found by a jury.  The issue is whether California's determinate sentencing law is invalid because the judge may impose sentences based on fact findings by the bench. The case is Cunningham v. California (05-6551).

Though this cert. grant will surely be eclipsed by the Court's decision to consider the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003, this is still very big news for sentencing and Blakely fans.   My understanding is that Cunningham will not be heard until next October.

[UPDATE: It now seems certain that we will have all summer to ruminate over Cunningham and that Californians will probably have to wait until at least this December or next January — a full two-and-a-half years after Blakely was decided — to know if they have a constitutional sentencing system.]

Some related prior posts:

February 21, 2006 in Cunningham coverage | Permalink | Comments (2) | TrackBack

February 20, 2006

Long weekend in review

Counting Friday afternoon as part of the long weekend, there has been a remarkable amount of sentencing activity that might (or might not) make our former Presidents proud.  Here are some topical highlights:

SCOTUS DEVELOPMENTS AND COMMENTARY

BOOKER DEVELOPMENTS AND COMMENTARY

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

OTHER DEVELOPMENTS AND COMMENTARY

February 20, 2006 in Recap posts | Permalink | Comments (0) | TrackBack

SCOTUS lets California execution go forward

As detailed in this story from California, the Supreme Court this afternoon "refused to halt the execution of condemned murderer Michael Morales, shooting down the 46-year-old's last chance to escape a death planned for 12:01 a.m. Tuesday at San Quentin State Prison."  Additional coverage comes from this AP story.

Some recent related posts:

UPDATE:  As detailed in this AP story, Morales' execution "was delayed until Tuesday night after two anesthesiologists refused to participate because of ethical concerns."  Howard collectes more press coverage here.

February 20, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

More on teen crime, adult time in Colorado

As first noted here, the Denver Post this week is running a potent four-part series about juvenile justice in Colorado under the heading of "Teen Crime, Adult Time."  Today's main article, available here, examines felony murder convictions and it concludes with this overview of the entire series:

Day one: Colorado prosecutors have used an unusual combination of laws to put 45 teens in prison for life with no hope of early release.

Day two: Teens are far more likely than adults to be prosecuted and put away for felony murder, a crime that doesn't require them to willfully participate in a homicide.

Day three: Among those now serving life without parole are teens who killed a parent. In some cases, jurors never heard their stories of abuse.

Day four: Over time, Colorado legislators have consistently moved the state toward a system that punishes teen criminals and devotes fewer resources to rehabilitation.

February 20, 2006 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Plain error on plain error in the First Circuit?

I have not spent much time on Booker plain error issues since the Supreme Court denied cert on the issue (background here and here and here) and each circuit settled into one of the three divergent Booker plain error standards.  Nevertheless, a case applying the First Circuit's tough plain error standard merits note because of an interplay between the district and circuit judges in the case.

In US v. Hansen (noted here), a First Circuit panel affirmed a lengthy pre-Booker sentence (of almost 30 years) imposed by District Judge Nancy Gertner after concluding that the defendant was able to show a "reasonable probability" that the sentencing court, in the absence of mandatory guidelines, would have imposed a more favorable sentence.  Obviously troubled by this conclusion, Judge Gertner wrote a three-page letter to the panel in which she explained why she believed "based upon my recollection of the facts, and my review of the record, there was at least a 'reasonable probability' that a more lenient sentence would have been imposed under an advisory guideline regime."  (Judge Gertner's letter is available for download below.)

In response, last week the First Circuit panel that decided Hansen denied a petition for panel rehearing and reaffirmed its ruling affirming the near 30-year sentence that was imposed back in 2003.  Here are snippets of the panel's explanation for its action (with citations omitted):

The court has considered the argument on page 4 of the petition that this court should consider a letter from the district judge written after the panel opinion issued.  The letter does not concern information which was not produced because the guidelines were mandatory at the time. Further, it contains materials not transcribed and not in the record.  There are very strong interests in the law in both finality and in prohibiting review based on materials not in the record.  These interests alone could preclude consideration of letters from district courts containing non-record material and commentary.  Whether in the interests of justice or to prevent a miscarriage of justice we might ever consider and be persuaded by such a letter is a matter we need not decide today.  That is not this case.  The record simply presents a different picture than does the letter, and the record prevails.  The petition for panel rehearing is denied.

Among the interest aspects of this case is how the First Circuit panel places an interest in finality above an interest in sentencing uniformity.  In six other circuits applying a less rigorous plain error, defendant Hansen would have clearly been resentenced under Booker, and its quite possible that even some other circuit applying the tougher plain error standard would have granted Hansen resentencing on this record.  But now, interestingly, sentencing finality becomes more important than sentencing uniformity.

Download gertner_plain_error_letter_to_1st_circuit.rtf

February 20, 2006 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Reasonableness review round-up . . . calling Justice Scalia

In his dissent from the remedial opinion in Booker, Justice Scalia closed with some trenchant observations about reasonableness review.  Among other points, Justice Scalia asserted that this review "requires courts of appeals to evaluate each sentence individually for reasonableness, rather than apply the cookie-cutter standards of the mandatory Guidelines."  But Justice Scalia recognized that circuit courts "might seek refuge in the familiar and continue (as the remedial majority invites, though the merits majority forbids) the appellate sentencing practice during the last two decades."

With lots of reasonableness action this month (including major rulings recently from the Third, Fourth, Fifth, Sixth and Tenth Circuits), the look of reasonableness review is finally coming into focus.  And cookie-cutter is a pretty good (and appropriately pejorative) description of what we are seeing, with the majority of circuits embracing a "presumption of reasonableness" for within-guidelines sentences.

As explained here, I find a "presumption of reasonableness" troubling for constitutional, statutory and practical reasons.  Moreover, the reasonableness cookie-cutting look pretty ugly as the circuit courts are creating de facto a kind of post-Booker mandatory minimum guideline system: all within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, whereas many below-guideline sentences are being reversed as unreasonable.

Here is a circuit-by-circuit review concerning the adoption of a "presumption of reasonableness" for within-guidelines sentences: 

It will be interesting to see if SCOTUS will even take up this issue, especially if (when?) the First Circuit or perhaps another circuit expressly rejects a presumption of reasonableness for within-guideline sentences.  It bears recalling the current SCOTUS sentencing head-count, which highlights that all four of the Booker remedy dissenters and only three Justices supporting the Booker remedy remain on the Court.  Consequently the big question might be what Chief Justice Roberts ("Sca-Roberts"?) and Justice Alito ("Sc-Alito"?) think of review for reasonableness.

February 20, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

A movie about the federal sentencing guidelines?

I just saw this press release about a new movie, entitled "The System Within," which apparently has the federal sentencing guidelines as an important character:

The System Within, set in contemporary America, explores the realities of being imprisoned by Federal Conspiracy Laws and trapped by unjust sentencing guidelines.... The System Within will reveal how corporations profit from racial profiling, negative capitalism, institutional slavery, while stripping youth of economic alternatives and moral values.

Of course, long-time readers may recall this personal favorite post about "How the Blakely saga would get resolved in Hollywood."  Also, in a galaxy not so far away, I had this post suggesting a hollywood pitch for a law-themed disaster movie.

February 20, 2006 in Who Sentences? | Permalink | Comments (2) | TrackBack

New scholarly law blog on launchpad

I recently received this notice about a great-looking new group blog by law professors:

Monday, February 20, 2006, we will launch the Empirical Legal Studies Blog, a collaborative effort of Jason Czarnezki (Marquette), Michael Heise (Cornell), William Ford (Chicago), and Theodore Eisenberg (Cornell). The ELS Blog is devoted to advancing productive and interdisciplinary discourse among empirical legal scholars. The ELS Blog will serve as an online forum to discuss and provide links for emerging empirical legal scholarship, provide conference updates, discuss empirical claims that have emerged in public and political discourse, facilitate discussion for guest empirical scholars, and assess current empirical findings and methodologies.

Sentencing fans should plan to make regular stops at the ELS Blog.  Not only have two of the editors (Michael Heise and Theodore Eisenberg) done a lot of empirical work on sentencing-related topics, but the ELS Blog also has two law profs who explore guideline sentencing (Max Schanzenbach and John Pfaff) scheduled for guest blogging stints in coming weeks.  In addition, the ELS Blog has planned an intriguing "Blog Forum" on "Law Clerks as Research Subjects" for March.

UPDATE:  This notable post at the ELS Blog about "perceived ideology scores" of the current Justices already has me intrigued about an empirical work that scores the author of the decisions in Blakely and Crawford (Justice Scalia) as the most conservative member of the Supreme Court.

February 20, 2006 in Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

February 19, 2006

Ninth Circuit rejects efforts to block California execution

As detailed in this AP article, the Ninth Circuit this afternoon "dismissed petitions seeking to block Tuesday's lethal injection" of death row defendant Michael Morales in California.  This comes two days after, as discussed here, Gov. Schwarzenegger denied a clemency request from Morales.

In Morales v. Ornoski, No. 06-7884 (9th Cir. Feb. 19, 2006) (available here), a Ninth Circuit panel rejects the request to file a successor habeas petition, and in Morales v. Hickman, No. 06-99002 (9th Cir. Feb. 19, 2006) (available here), a Ninth Circuit panel rejects claims lodged against the revised lethal injection protocol ordered by the district court.  Hickman is the more interesting read, though both suggest that a few circuit judges had a busy weekend.

Lawyers for Morales will surely continue to press these claims all the way to the Supreme Court, but I suspect this is one case that SCOTUS is prepared to let proceed despite all the questions now surrounding lethal injection procedures. 

Some recent related posts:

UPDATE: This article suggests that lawyers for Morales will seek en banc review of the work of the Ninth Circuit panel before pressing claims to the Supreme Court.

February 19, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

What of the lack of re-argument in the SCOTUS capital cases?

As detailed over at SCOTUSblog, the (new) Supreme Court ordered re-argument in only one case argued this Term before Justice Alito's arrival.  That leads me to wonder about what's going on in three big capital cases argued earlier this term, Kansas v. Marsh  and Oregon v. Guzek (argued on the same day in December, background here and here) and House v. Bell (argued in early January, background here and here). 

There is every reason to expect Marsh and Guzek and House to produce close votes.  After all, as detailed here, the one capital case decided already this Term, Brown v. Sanders, produced the Term's only 5-4 vote so far and had Justice O'Connor providing a deciding vote.  Moreover, as I recall, the oral arguments in these three capital cases (which can be reviewed here and here and here) suggested a divided court on a number of issues.

So, SCOTUS watchers and death penalty gurus and tea-leaf readers, what should we make of the failure to order re-argument in Marsh and Guzek and House?

February 19, 2006 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Teen crime, adult time in Colorado

Examining tough sentencing for juvenile offenders, the Denver Post this morning has this long and thoughtful article entitled "Teen Crime, Adult Time: Laws converge to put teens away forever."  The article, which is the first part in a four-part series, draws on the paper's investigation revealing the following interesting data and insights about juvenile justice in Colorado:

As I have suggested before, 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 other tough sentences for juveniles.  Also, stories about the juvenile justice system reinforce my instinct 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.

Related posts:

February 19, 2006 in Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (24) | TrackBack