February 28, 2006
Latest FSR Issue on post-Booker world
I am pleased to announce that another issue of the Federal Sentencing Reporter has gone to press. This latest issue continues the Booker beat — recently covered in issues examining "The Booker Aftershock" and "Is a Booker Fix Needed?" — with a focus on "Defense Perspectives on the Post- Booker World." (Recall that, as detailed here, another recent FSR issue zeroes in on the state Blakely scene.)
Below I have listed this latest issue's contents and also made my Editor's Observations, entitled "Perspectives on the Booker's Potential," available for download. General information about ordering FSR can be found here and the journal can accessed electronically here.
- Douglas A. Berman, Perspectives on Booker's Potential (Download 182_ed_obs.pdf)
ARTICLES AND RELATED MATERIALS
- Alan DuBois & Anne E. Blanchard, Sentencing Due Process: How Courts Can Use Their Discretion to Make Sentencings More Accurate and Trustworthy
- Timothy Cone, Booker Waivers in Plea Agreements: Are They Permissible?
- Jon M. Sands & Robert J. McWhirter, Federal Sentencing Adventures in Jurisdictional Wonderland: Blakely, Booker, and Special Federal Jurisdiction Issues
- Letter from Federal Defenders to U.S. Sentencing Commission about Federal Sentencing Since United States v. Booker
- Panel Discussion from The Constitution Project's Sentencing Initiative
- Ryan S. King & Marc Mauer, The Sentencing Project, Sentencing with Discretion: Crack Cocaine Sentencing After Booker
- New Jersey Commission to Review Criminal Sentencing, Report on New Jersey's Drug Free Zone Crimes & Proposal for Reform
Who wins from a Booker remedy? It depends.
As detailed in media reports, Ohio prosecutors are celebrating and Ohio 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 Ohio's mandatory sentencing requirements for enhanced sentences. Those familiar with only the federal sentencing system might be surprised by these reactions, since in the federal system it is prosecutors leading the charge for some sort of Booker fix. But the Ohio realities show yet again that Blakely, Booker and structured sentencing developments are always full of nuance concerning sentencing doctrines and practices.
In the federal system, prosecutors favor having the guidelines mandatory because the federal guidelines typically drive sentences up through the application of an array of sentencing enhancements. In contrast, Ohio's structured sentencing rules had operated to keep sentences down because judges had to give low sentences unless they made certain types of particularized findings. Eliminating guideline mandates in the federal system gives judges more leeway to be lenient, but eliminating structured sentencing rules in Ohio gives judges more leeway to be harsh.
Of course, as Booker has shown for the federal system, a major Supreme Court ruling serves as just another chapter in an always evolving sentencing story. The ultimate impact of Blakely and Foster in Ohio will be determined by how other Ohio institutions and sentencing players — the Ohio Criminal Sentencing Commission, the Ohio legislature, lower court judges and prosecutors and defense attorneys — respond to the Foster ruling.
Coverage of Ohio Blakely ruling
Yesterday's AP story on the Ohio Supreme Court's big Blakely decision in Foster (basics here, commentary here) just barely covered the essentials. But this morning, all of the local Ohio papers provide much fuller and more effective coverage. This article in the Cincinnati Enquirer is especially effective, with background on Ohio law and the Foster ruling, lots of quote from key players, and this effective summary:
The decision technically is a victory for defendants who had argued that the guidelines were unfair because they allowed judges to impose sentences based on evidence not considered by a jury. But by throwing out the old rules, the Supreme Court gave judges much more power to sentence criminals as they choose. Prosecutors and defense attorneys say that's bad news for defendants.
The latest Death Row USA show reduced death sentences
The NAACP Legal Defense Fund's has released its latest quarterly update of Death Row USA, which can be accessed here. As noted by the DPIC here, this latest report "indicates that the number of people sentenced to death last year was 65% fewer than in 1998. The ... report showed that 106 people received a death sentence in 2005, down from 125 in 2004 and dramatically lower than the 300 per year recorded in the late 1990s." The DPIC also notes here that the report "shows an 8% decline in the country's death row population during the past 5 years, down from 3,652 in 2000 to 3,373 at the end of 2005."
Recent related posts:
- Perspective for another death penalty year
- Death sentences continue to decline
- Interesting capital reviews in California and Texas
Scrubbing clean criminal history
The Baltimore Sun has this fascinating article about defendants in Maryland using a state law procedure to wipe prior state convictions off their records so that these convictions will not impact future federal sentencings. Here's a taste:
Years after a defendant walks out of prison, state law allows a judge to reopen the case and throw out a conviction on a technicality. For [some] convicted criminals in Maryland identified by The Sun, the defense strategy could drastically reduce their prison sentences in federal court.
Tossing out state convictions has deeply troubled federal prosecutors. In federal court, sentencing guidelines are based in large part on the length and severity of a defendant's criminal record. When state convictions disappear, so does eligibility for some of the harshest federal penalties, including mandatory life sentences.
Maryland U.S. Attorney Rod J. Rosenstein plans to ask state prosecutors at a meeting next month to fight these motions, known as writs of error coram nobis. "There has to be some finality," Rosenstein said.... Rosenstein confirmed that in some plea agreements, prosecutors are now requiring defendants to pledge that they won't go back and try to change their criminal history before sentencing....
"All too often, with the resource problems in the courts, there are unconstitutional convictions on our clients' records," Maryland federal public defender James Wyda said. "To complain about challenging a prior unconstitutional conviction that now serves to double a federal sentence to me is to complain about too much justice."
February 27, 2006
More on California sentencing
- The Christian Science Monitor has this article on the proposed initiatives in California to reform the state's tough three-strikes law. (Prior recent coverage here.)
- The Sacramento Bee, continuing its series on California's drug sentencing laws, has this article today headlined, "Drug law's failures spur get-tough call: Battle looms over effort to crack down."
What is exactly the Blakely remedy in Ohio?
Upon a quick read, I was impressed with many parts of the Ohio Supreme Court's decision today in Foster, the state's big Blakely case (basics here), and not only because this blog got a nice plug in footnote 3 (details here). Portions of the opinion were thoughtful, especially when the Court surveys the basics of Ohio law and the national post-Blakely landscape in the states.
However, when the Blakely rubber hits the Ohio sentencing road, Foster becomes far less appealing. Some reasons for concern about Foster are already effectively detailed by commentors here, and for me the big head-scratcher is the exact remedy adopted by the Ohio Supreme Court. Though it is clear that Foster did not adopt or endorse a remedy incorporating jury findings into Ohio's sentencing scheme, it is not at all clear exactly what remedy Foster did adopt or endorse.
The key remedy discussion of the Foster opinion, starting at page 36, carries the heading "Applying the Booker remedy." However, the discussion that follows does not state or even suggest that the previously mandatory findings required by Ohio law are now advisory. Likewise, the Foster opinion does not embrace or even suggest that appellate review for reasonableness (or for anything else) is now a component of Ohio's sentencing system.
A little more guidance emerges from the companion decision Mathis, and especially through this final paragraph:
Although after Foster, the trial court is no longer compelled to make findings and give reasons at the sentencing hearing since R.C. 2929.19(B)(2) has been excised, nevertheless, in exercising its discretion the court must carefully consider the statutes that apply to every felony case. Those include R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance in considering factors relating to the seriousness of the offense and recidivism of the offender. In addition, the sentencing court must be guided by statutes that are specific to the case itself.
I read this opaque paragraph as suggesting the mandates of Ohio's statutory sentencing system remains important now as an advisory system, although other parts of Mathis raise doubts about whether the Ohio sentencing system preserves any serious role for appellate review.
Eight Circuit reverses three below-guideline sentences
The Eighth Circuit today issued three opinions which continue the ugly look of post-Booker reasonableness review: US v. Gatewood, No. 05-1865 (8th Cir. Feb. 27, 2006) (available here); US v. Shafer, No. 05-2049 (8th Cir. Feb. 27, 2006) (available here); US v. Claiborne, No. 05-2198 (8th Cir. Feb. 27, 2006) (available here). As I have noted before here and here, it seems 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.
In the troika from the Eighth Circuit today, the same panel led by Chief Judge Loken reverses three post-Booker below-guideline sentences. All three opinions are similar in tone and content, and it seems that the Eighth Circuits is especially (and, in my view, appropriately) focused on the extent of the departures or variances in these cases. (For example, the facts in Claiborne seem to support leniency, but the panel assails the "extraordinary reduction" given by the district court.) Now, if only the Eighth Circuit and other circuit courts would apply the same sort of scrutiny to within- and above-guidelines sentences as they are applying to below-guideline sentences.
Blogs as scholarship and a nice plug
Thanks to Howard, I see that this week's issue of The National Law Journal has this interesting article entitled "Blogging law profs assault ivory tower; Is it scholarship, or a cyber chit-chat?". Needless to say, I think blogs (at least some of them) are a form of scholarship, but Texas Professor Kate Litvak apparently does not agree. She is quoted as saying: "They have nothing to do with scholarship."
Joyfully, this morning I can respond to Kate's assertion by noting that the Ohio Supreme Court is apparently in the camp that thinks blogs have at least something to do with scholarship. In its big Blakely decision today (basics here), the Ohio Supreme Court gives this blog this nice little plug in footnote 3:
See, also, Douglas A. Berman's legal blog, Sentencing Law and Policy, at http://sentencing.typepad.com for updates on Blakely and current source material on sentencing.
I cannot help but also note that traditional law review articles do not appear to be cited anywhere in the opinion.
UPDATE: Dan Solove has terrific additional coverage and commentary on the NLJ article here at Concurring Opinions.
Ohio applies Blakely and the Booker remedy!
The Ohio Supreme Court finally released its (long-in-gestation) decisions concerning Blakely's applicability to Ohio's sentencing system. I have previously highlighted that Ohio's sentencing laws and practices make the state a Blakely bellwether because Blakely's impact on Ohio's sentencing scheme could be extreme or extremely minor (background here and here). It seems the Ohio Supreme Court went the extreme route.
The main decision, State v. Foster, 2006-Ohio-856 (Ohio Feb. 27, 2006) (available here), and a companion ruling, State v. Mathis, 2006-Ohio-855 (Ohio Feb. 27, 2006) (available here), have many facets, including what seems to be a ground-breaking ruling on consecutive sentencing. This will justify much commentary in the days ahead (and I hope Ohio readers will get a running start in the comments). Here is the Ohio Supreme Court's official syllabus in Foster (with cites omitted):
1. Because R.C. 2929.14(B) and (C) and 2929.19(B)(2) require judicial factfinding before imposition of a sentence greater than the maximum term authorized by a jury verdict or admission of the defendant, they are unconstitutional.
2. R.C. 2929.14(B) and (C) and 2929.19(B)(2) are capable of being severed. After the severance, judicial factfinding is not required before a prison term can be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant.
3. Because R.C. 2929.14(E)(4) and 2929.41(A) require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant before the imposition of consecutive sentences, they are unconstitutional.
4. R.C. 2929.14(E)(4) and 2929.41(A) are capable of being severed. After the severance, judicial factfinding is not required before imposition of consecutive prison terms.
5. Because the specifications contained in R.C. 2929.14(D)(2)(b) and (D)(3)(b) require judicial factfinding before repeat violent offender and major drug offender penalty enhancements are imposed, they are unconstitutional.
6. R.C. 2929.14(D)(2)(b) and (D)(3)(b) are capable of being severed. After the severance, judicial factfinding is not required before imposition of additional penalties for repeat violent offender and major drug offender specifications.
7. Trial courts have full discretion to impose a prison sentence 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 sentences.
A bit more Cunningham coverage
The San Francisco Chronicle has this article which highlights the importance of the Supreme Court's cert grant in Cunningham, the California Blakely case, and details that SCOTUS involvement has already had an impact on California sentencing practices:
Uncertainty surrounds thousands of prison sentences in California after the U.S. Supreme Court announced it would decide whether the state's 29-year-old sentencing system violates a defendant's right to a jury trial....
Some California prosecutors are changing their practices to cushion the impact of a possible ruling declaring the current procedures unconstitutional, said David LaBahn, executive director of the California District Attorneys Association. He said such a ruling would probably shorten some sentences but would not require wholesale changes.
Recent related posts:
February 26, 2006
Interesting report on California's Prop 36
It seems all the sentencing stories these days are coming from California, whether its lethal injection litigation or Blakely cases in the Supreme Court or three-strikes reform. And, thanks to this fascinating article from the Sacramento Bee, drug sentencing can be to the mix. The article, "Breaking a cycle, or broken system?", appears to be the first in a series. Here's a taste:
Nearly five years after voters made sweeping changes in California's drug sentencing laws to emphasize treatment over jail, The Bee found that the system can fail to protect those it's intended to help. A Bee review of some 5,000 pages of state reports and court records since voters approved Proposition 36 found more than 40 instances in which patients died, suffered injuries, overdosed on drugs or were otherwise at risk in poorly regulated programs or with unlicensed, unethical or careless drug counselors....
Since Proposition 36, drug treatment in California has gone from a mostly voluntary system serving addicts who could leave at any time to mandated treatment for those sentenced under the initiative. The 50,000 offenders sentenced to drug programs each year under Proposition 36 are straining a system that already had long waiting lists.
More than 200,000 Californians enter treatment annually, including those who voluntarily seek help.... The influx of drug offenders into treatment since Proposition 36 has increased the workload for state investigators examining these programs. Since 2001, the annual number of complaints they investigate has risen from 240 to 363 in fiscal 2005.
LA's DA as three-strikes reformer
In 2004, Los Angeles County District Attorney Steve Cooley opposed Proposition 66, the state initiative that would have amended California's harsh three-strikes law. But now, as detailed in this opinion piece, DA Cooley is the champion of new proposal to reform the three-strikes law. Cooley's commentary provides effective background on California's three-strikes history, and explains his interest in a reform initiative known as The Three Strikes Reform Act of 2006:
Experience has revealed some inequities in the original law. The best way to ensure that the three-strikes law retains public support and confidence is to make modifications that will dispense justice while preserving the valuable public safety features of the law.
The Three Strikes Reform Act of 2006 is the joint product of prosecutors, private attorneys and other interested parties working together to ensure a realistic approach to prevent unjust sentencing without compromising the ability to remove serious and dangerous recidivist criminals from our communities....
The criminal justice system needs to retain the very beneficial provisions of the three-strikes law. However, the state should not allow the misallocation of limited penal resources by having life prison sentences for those who do not pose a serious criminal threat to society. The punishment should fit the crime. California can assure public safety and achieve the interests of justice in all counties and courts with The Three Strikes Reform Act of 2006.
Lots more capital headlines
As I lamented here, though the biggest sentencing news last week was the Supreme Court's cert grant in the California Blakely case, all the media wants to talk about is the death penalty and lethal injection. Here are some more examples:
- From California, "Capital punishment on trial"
- From California, "Lethal injection facing scrutiny"
- From New Mexico, "Lethal-injection ruling could affect New Mexico"
- From North Carolina, "Execution objections on rise"
In addition, California's struggles to kill death row defendant Michael Morales (basics here and here), continues to produce interesting editorials. Check out: "It's a cruel and unusual battle on death penalty" and "The death of the death penalty?".
UPDATE: How Appealing has some additional lethal injection coverage here.