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February 22, 2006

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