March 4, 2006
More California capital headlines
The death penalty headlines keep pouring out of California:
- This AP article details that the state has "proposed altering its lethal injection protocol amid allegations its execution method causes prisoners too much pain and violates the constitutional ban on cruel and unusual punishment."
- This Reuters story details that, despite all the recent capital punishment hub-bub, still "Californians overwhelmingly back the death penalty, according to a poll released on Friday."
Record sentence for political corruption
This New York Times article provides the highlights of yesterday's sentencing of former Representative Randy Cunningham, who received "eight years and four months in prison for taking $2.4 million in bribes from military contractors in return for smoothing the way for government contracts." According to the article, the government "said the sentence was the longest ever handed down for a member or former member of Congress in a federal corruption case."
This Washington Post account notes that District Judge Larry A. Burns selected this sentence "after prosecutors argued for the maximum 10 years and defense attorneys suggested that six years was enough." Interestingly, this Los Angeles Times account explains that "Burns said he would have sentenced the 64-year-old Republican to 10 years in prison, as requested by prosecutors, but concluded that a measure of leniency was appropriate because of Cunningham's service in Vietnam."
March 3, 2006
Another call for FSR commentary
As detailed here, a few months ago the Federal Sentencing Reporter solicited commentaries addressing the question "How should Congress and the U.S. Sentencing Commission respond to Booker?". Some terrific pieces on that question will be published in FSR Issue 18.3 in the next few weeks. And now, FSR is on to the next great hot sentencing topic, and my co-editor Nora Demleitner has issued this new call for commentary:
The Supreme Court is about to tackle a host of major sentencing issues in the death and non-death area. Some have argued that the death penalty cases before the Court may herald the end of capital punishment in the United States; others view them merely as minor skirmishes. As two stalwart opponents of Blakely and Booker have departed from the Court, the question arises whether the Court's new majority will continue to undermine guideline regimes, or rather restore a precarious equilibrium.
A forthcoming issue of the Federal Sentencing Reporter (FSR) invites you to submit a short essay arguing to the newly composed Court what should be done about sentencing in state and federal systems. You may write on specific questions in the death or non-death area, or assist the Court in understanding the challenges the Court's jurisprudence has presented to the criminal justice system and especially the lower courts. Alternatively, you may focus on the importance of the Court's sentencing jurisprudence in its power struggle with Congress, or analyze the role of the Chief Justice in the administration of criminal justice. Since the members of the Judiciary Committee questioned neither of the two new Justices extensively about their position on sentencing, you should not attempt to determine how Justice Alito or Chief Justice Roberts may rule but instead you should view these essays as short amicus briefs in which you highlight issues on which neither they nor other members of the Court are likely to have focused.
Please contact Nora V. Demleitner at this link if you are interested in writing for this Issue. Submissions should be short — between 800 and 1,500 words. Keep footnotes to a minimum. The deadline for submissions is April 3, 2006.
Details about recent FSR issues:
Report on IACHR hearing on mandatory minimums
As recently detailed here, the Inter-American Commission on Human Rights (IACHR) today held a hearing to explore the "Discriminatory Impact of Mandatory Minimum Sentences in the Federal Criminal System of the United States of America." The Sentencing Project now has this terrific webpage discussing the hearing and providing links to the testimony from all the presenters.
In addition, the ACLU now has this press release discussing the hearing and providing this link to its submitted statement. (The ABA previously released this press release about its involvement in the IACHR hearing.)
Eighth Circuit affirms Tabor
As detailed here, last year Sentencing Hall of Famer Judge Richard Kopf in US v. Tabor, No. 4:01CR3215 (D. Neb. Apr. 18, 2005), explained why he believed "that the crack Guidelines, like all other Guidelines, should be given heavy weight after Booker." Today, the Eighth Circuit affirmed the sentence imposed in that case through US v. Tabor, No. 05-2169 (8th Cir. Mar. 3, 2006) (available here).
In Tabor, the Eighth Circuit says relatively little about post-Booker crack sentencing, although it does stress that within-guideline sentences are presumptively reasonable and it cites various decisions upholding and enforcing sentencing within the crack guidelines. The Eighth Circuit concludes that "Tabor has not overcome the presumption of reasonableness applicable to a Guidelines sentence."
More or reforming three-strikes in California
As noted here, Los Angeles County District Attorney Steve Cooley has become a leading advocate of reforming California's harsh three-strikes law. This Los Angeles Times story details that at a press conference on Thursday, Cooley "endorsed reform legislation sponsored by Sen. Gloria Romero (D-Los Angeles) and written by defense attorney Brian Dunn." Additional news coverage here notes that "Los Angeles Police Chief William Bratton and Sheriff Leroy Baca also support the bill."
March 2, 2006
A taxonomy of legal blogs
I am so very pleased to see that Ian over at 3L Epiphany — who has the honor of being the first law student to earn academic credit for blogging — has taken up the challenge of creating a "taxonomy of legal blogs." I think this is an extraordinarily valuable (and challenging) endeavor, which Ian previews in this thoughtful post. (Ian got off to a running start with this funny post labeling blogs based on the number of contributors. Apparently, I am a uniblogger.)
Notably, Dan Solove's terrific census of law professor bloggers catalogs bloggers by school and gender, but both Ann Althouse and Jim Lindgren have expressed concern about what these numbers really tell us (especially for the recent "blogs as scholarship" debate). Moreover, I have long been interested in a rough accounting of other facets of law-prof blogging — e.g., whether bloggers are tenured or untenured, whether blogs are issue-specific (this blog) or legal-generalist (Prawfsblawg) or mostly non-law (Instapundit).
From Ian's mission statement, it appears he is trying to create a taxonomy for all legal blogs, not just law-prof blogs. I look forward to seeing what he develops.
More on the IACHR hearing on federal mandatory minimums
As previously noted here, the Inter-American Commission on Human Rights (IACHR) is scheduled to hold a hearing on Friday to explore the "Discriminatory Impact of Mandatory Minimum Sentences in the Federal Criminal System of the United States of America." Yesterday I received a press release providing more these details about the scheduled hearing:
The Inter-American Commission on Human Rights will hear testimony about the impact of current sentencing policies on communities of color within the United States, on Friday, March 3, 10:15am at the Organization of American States.... Testifying before the Commission are:
- Judge Patricia Wald, Member of the American Bar Association's Committee on Effective Criminal Sanctions; former judge on the International Criminal Tribunal in the Hague; and Chief Judge for the US Court of Appeals for the DC Circuit (1986-1991);
- Professor Charles Ogletree, Executive Director of Harvard Law School's Charles Hamilton Houston Institute for Race and Justice;
- Gay McDougall, Executive Director of Global Rights and the first United Nations Independent Expert on Minority Issues;
- Kemba Smith, who was sentenced to a mandatory minimum 24 year term for her minor role in a crack cocaine drug conspiracy and was granted clemency by President Clinton in 2000.
I have also received a copy of the written testimony of Judge Wald, who is testifying on behalf of the ABA. Her testimony, which can be downloaded below, is a to-the-point indictment of harsh mandatory minimum sentences. Here is just one of the passages that caught my eye:
Unduly long and punitive sentences are counter-productive, and candidly many of our mandatory minimums approach the cruel and unusual level as compared to other countries as well as to our own past practices. On a personal note, let me say that on the Yugoslav War Crimes Tribunal I was saddened to see that the sentences imposed on war crimes perpetrators responsible for the deaths and suffering of hundreds of innocent civilians often did not come near those imposed in my own country for dealing in a few bags of illegal drugs. These are genuine human rights concerns that I believe merit your interest and attention.
UPDATE: This afternoon I also received a copy of testimony submitted to the IACHR by Families Against Mandatory Minimums entitled "Disparate Impact of Federal Mandatory Minimums On Minority Communities in the United States." You can download this testimony below:
Ninth Circuit on the minutiae of guideline calculations post-Booker
The Ninth Circuit today issues a lengthy opinion in US v. Jennings, No. 04-10343 (9th Cir. Mar. 2, 2006) (available here) to address this interesting bit of guideline minutiae: "Whether a defendant who, in the course of a bank robbery, states that he has a gun but makes no reference to his willingness to use it is subject to a two-level sentencing enhancement for a 'threat of death' pursuant to [USSG] § 2B3.1(b)(2)(F)."
Though much of the Jennings opinion may be of great concern only to bank robbers, the court drops a notable footnote about the importance of precise guidelines calculations after Booker. Here is part of that footnote:
There may be little point in requiring district courts to engage in the purely academic exercise of resolving complicated factual questions in order to delineate an exact Guidelines range if the court has already settled on a reasonable sentence in light of the factors set forth in 18 U.S.C. § 3553(a). Although the Second Circuit has determined that, in such cases, a precise calculation is not always necessary, see United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005), the Ninth Circuit has not yet reached this issue. See Cantrell, 2006 WL 73483, at *6 n.3 (noting but not deciding same issue). Given that the threat-of-death enhancement ordinarily does not present a difficult factual issue — and that here, the defendant has conceded that the statement at issue was in fact made — this case is not a proper vehicle to consider the question. Accordingly, as we did in Cantrell, we leave that question for another day.
Eighth Circuit vacates another below guideline sentence
Continuing an appellate pattern in which below-guideline sentences are getting far greater scrutiny than within- or above-guideline sentences (details here and here and here), the Eighth Circuit today vacated a sentence in US v. Myers, No. 05-1543 (8th Cir. Mar. 2, 2006) (available here).
In Myers, the majority ultimately concludes the record is not sufficiently developed to support a below-guideline sentence of a year down from a guideline range of 37-46 months: "We remand for imposition of sentence following more explicit and thorough consideration of all factors enumerated in section 3553(a), without expressing any opinion on the reasonableness of the sentence that should be imposed." Notably, Judge Bye dissents and makes repeated references to the record below in support this conclusion: "Based on the district court's careful consideration of the circumstances surrounding this case, and its thorough analysis of the § 3553(a) factors, I cannot say the sentence imposed was unreasonable."
South Carolina top judge calls for sentencing reform
As detailed in this interesting article, South Carolina's Chief Justice "called for a 'policy summit' on sentences in South Carolina, citing exploding prison populations nationwide." Here are selections from an interesting read:
"Sentencing in the United States is a national disgrace," Supreme Court Chief Justice Jean Toal said Wednesday in her annual speech to the S.C. General Assembly.... From 1970 through 2000, the nation's prison population increased six-fold, Toal said. "This is a huge drain on state and local resources."... "We don't know the answer now as to how the system is being run because it's been such a long time since we've taken a real hard look at it," Toal said afterward. "I want to know if there are better ways to sentence and incarcerate than what we are using now."...
State Sen. Jake Knotts, R-Lexington, a former police officer, said he thinks the state should resurrect the sentencing guidelines commission. He was a member of the group, which disbanded a few years ago. The commission proposed uniform sentence ranges based on the severity of the crime and the defendant's criminal history....
North Carolina adopted similar guidelines in the mid-1990s. They helped reduce prison populations and saved about $1 billion over a decade, said Tom Ross, former chairman of that state's sentencing commission. The goal of structured sentencing, he said, is to keep violent criminals behind bars longer while providing alternatives to prison, such as house arrest or substance abuse counseling, for non-violent offenders.
A sentencing judge's view on Foster
I noted here and here some prosecutor and defense reactions to the Ohio Supreme Court's recent big Blakely decision in Foster (basics here, commentary here and here and here). For more telling perspectives, check out this article from the Youngstown Vindicator entitled "Law change pleases judge." Here is a taste:
Judge R. Scott Krichbaum of Mahoning County Common Pleas Court says he's pleased that he no longer has to "jump through a flaming hoop" when giving criminals sentences that he deems appropriate... "I think it's about time," Judge Krichbaum said. "It is finally a return to allowing judges to be judges, to allow us to execute our duties as elected individuals as opposed to the computerized, plasticized Stepford wives they've tried to make us into."...
"The courts and the Legislature were putting form over substance," says Mahoning County Prosecutor Paul J. Gains. If judges didn't make findings and record them in their journal entries, Gains said their sentences were at risk to be reversed in appeals court. Now, "the courts will have more latitude when a defendant deserves more prison time," Gains said.
Assembling capital clemency claims
The AP has this interesting story about the on-going efforts by SUNY professors James Acker and Charles Lanier to archive capital clemency pleas. Here is a snippet:
[T]wo researchers at the State University of New York's Albany campus have created a national death penalty archive and begun compiling such pleas in the hope they will yield valuable lessons about the workings — and failings — of the criminal justice system....
Last month, the first boxes carrying 137 clemency pleas arrived at the National Death Penalty Archives from a private donor. The archive will be open to advocates, lawyers, journalists and others....
Bill Bowers of the Capital Jury Project, a national research effort into how juries make decisions, called the bulging files "a gold mine of things that wouldn't show up in legal papers."
Additional information about the National Death Penalty Archives can be accessed at this link.
A call for Blakely-ization in Ohio
In Foster, the Ohio Supreme Court's big Blakely decision earlier this week (basics here, commentary here and here and here), the court adopted a remedy that "Booker-ized" Ohio's sentencing laws by severing statutory requirements for enhanced sentences. Interestingly, in this follow-up editorial, the Cincinnati Enquirer has called for a legislative response that would bring jury trial rights to Ohio sentencing:
The [Foster] court made it clear that a legislative remedy is needed. In fact, justices came as close as they could to telling the General Assembly what to do without appearing to tell it what to do: "(T)he General Assembly may enact legislation to authorize juries to find beyond a reasonable doubt all facts essential to punishment in felony cases, but it has not yet done so," Lanzinger wrote. Also, "it may well be that in the future the Ohio Criminal Sentencing Commission may recommend Blakely-compliant statutory modifications ..."
Get the hint, lawmakers? The General Assembly should get busy and fix Ohio's felony sentencing laws now.
Notable corrections items
Because I cannot even keep up with all the sentencing developments, I do not often focus on issues in corrections. But a few recent items in major papers seem to merit mention:
- From the New York Times, Adam Liptak has this fascinating and sad article entitled, " Pregnant Inmates Often Shackled During Labor."
- From the Boston Globe, David Pozen has this interesting op-ed which advocates forcefully for "using private nonprofit organizations to manage prisons."
March 1, 2006
A prosecutor's view on Foster
I discussed in this post why prosecutors are celebrating (and defense attorneys are lamenting) the Ohio Supreme Court's big Blakely decision in Foster (basics here, commentary here), which decided to "Booker-ize" Ohio's sentencing laws by severing statutory requirements for enhanced sentences. To reinforce these realities, today I received (and got permission to post) a memorandum from a state county prosecutor's office discussing Foster. The memo, which can be downloaded below, provides helpful background on the Foster case and why it (and the companion Mathis case) has prosecutors so happy. Here are some telling snippets from the memo:
The [Ohio] Supreme Court concluded: (1) Judicial factfinding is not required before a prison term may be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant. Foster at 38. (2) Judicial factfinding is not required before imposition of consecutive prison terms. Id. (3) Judicial factfinding is not required before imposition of additional penalties for repeat violent offenders and major drug offenders. (4) Trial courts have full discretion to impose a prison term within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentence. Foster at 39....
[B]oth cases were unanimous decisions with Justice Resnick concurring in the paragraphs that are most pro-prosecution.... In my opinion, the background of those Supreme Court judges who formerly were common pleas court judges shines through the decision.
Good luck and unless the United States Supreme Court overrules Foster and Mathis our jobs and the jobs of our terrific secretaries will be easier. Justice prevailed!
Third Branch article on post-Booker sentencing
With great thanks to Sean Sirrine at Objective Justice for this pointer, I see that The Third Branch — which is the official newsletter of the federal courts — has this article in its February 2006 Issue notably titled "A Year After Booker: Most Sentences Still Within Guidelines." Followers of the blog will not be surprised by the reported numbers (which come from the US Sentencing Commission), but they will want to check out some of the charts and quotes. Here is a sample:
"The data show that sentencing practices have not changed substantially. There is some variation in some cases, but it's a matter of several percentage points," said U.S. District Judge Paul Cassell (D. Utah), chair of the Judicial Conference Committee on Criminal Law.
"The question is 'What explains all that?' I think what's going on is that trial judges around the country have grown used to operating in a guidelines system," Cassell said. "It's the coin of the realm, if you will. The guidelines, although advisory, provide a starting point. We've had almost 20 years of experience with the guidelines."
More on the harsh consequences of old criminal history
As detailed here and here, federal sentencing provisions often produce quite harsh sentencing consequences from long-ago and/or relatively-minor criminal history. (And that's principally why, as detailed here, federal defendants have a powerful incentive to re-litigate any past crimes before their sentencing.) These realities are highlighted today in decisions from the Sixth and Eighth Circuits in US v. Hill, No. 04-6206 (6th Cir. Mar. 1, 2006) (available here) and US v. Anderson, No. 05-1830 (8th Cir. Mar. 1, 2006) (available here).
Both Hill and Anderson uphold the application of mandatory minimum sentences of 15 years under ACCA for the offense of felon in possession of a firearm. In Hill, this lengthy sentence is triggered by two seemingly petty burglaries (of a bolt cutter and a boat motor) that the defendant committed 13 years ago. In Anderson, the Eighth Circuit conspicuously does not even discuss the facts surrounding the triggering felonies, though they appear to involve cases of (clothed? consensual?) sexual contact with a minor that are perhaps a decade old.
February 28, 2006
The exclusionary rule and Miranda at sentencing
In an interesting opinion that would provide a great set of facts and issues for a moot court competition, the Fourth Circuit today in US v. Nichols, No. 04-5020 (4th Cir. Feb. 28, 2006) (available here) addresses whether "the district court improperly refused to consider at sentencing a statement obtained from Nichols in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981)." Here are a few highlights from a thoughtful opinion in Nichols:
Only one federal appellate court, the Seventh Circuit, has specifically addressed whether statements obtained by police in violation of Miranda are admissible at sentencing....
We agree with the Seventh Circuit that statements obtained in violation of Miranda, if they are otherwise voluntary, may generally be considered at sentencing....
In sum, we conclude that in cases such as this one — where there is no evidence that an illegally obtained statement was actually coerced or otherwise involuntary — the substantial burden on the sentencing process resulting from exclusion of that statement outweighs any countervailing concerns about police deterrence or unreliable evidence. As with evidence obtained in violation of the Fourth Amendment, the disadvantages of applying the Miranda exclusionary rule at sentencing are large, and the benefits small or non-existent.
Second Circuit affirms above-guideline sentence
As I have noted before here and here, it seems that the circuit courts through reasonableness review 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 deemed unreasonable. Yesterday, as detailed here, the Eighth Circuit reversed three below-guideline sentences; today the Second Circuit affrims an above-guideline sentence in US v. Fairclough, No. 05-2799 (2d Cir. Feb. 28, 2006) (available here). Here is a court's summary of its work in Fairclough:
The defendant-appellant argues that the District Court violated the Sixth Amendment and ex post facto principles when it applied United States v. Booker, 543 U.S. 220 (2005), to conduct that occurred prior to that decision and sentenced him to a term above the United States Sentencing Guidelines range established by his admissions. He also argues that his sentence is unreasonable in light of the factors set forth in 18 U.S.C. § 3553(a). We hold that district courts do not violate ex post facto principles by applying the remedial holding of Booker to pre-Booker conduct, that the defendant-appellant's Sixth Amendment rights were not violated, and that the defendant-appellant's sentence was reasonable.