March 7, 2007
It truly is an honor just to be nominated
Arriving in my mail today was a copy of the latest issue of The Green Bag, and the cover letter informed me that "my recent work was nominated as an example of excellent legal scholarship" and received "an honorable mention" in the Green Bag's second annual Almanac & Reader. Since I have have a whole lot of recent work (not just on this blog, but also in more traditional scholarly fora), I turned to the "Recommend Reading" section giddy with anticipation about which work of mine had earned me this great honor.
I was pleased to discover that I was one of 17 persons with a "long article" mentioned in the "Recommend Reading" section of the new Green Bag. And I was even more pleased that the article selection is a piece that is one of my personal favorites, but among my least cited, explorations of the Blakely and Booker revolution: Beyond Blakely and Booker: Pondering Modern Sentencing Process, 95 Journal of Criminal Law and Criminology 654 (2005).
Great Greenhouse affect on consensus
Linda Greenhouse has this terrific Reporter's Notebook entry today entitled, "As to the Direction of the Roberts Court: The Jury Is Still Out." Headline notwithstanding, her piece does not discuss the jury trial issues raised in Claiborne and Rita. But, in it reinforces my sense of the new Chief's limited ability to forge consensus and my broader instinct that "for anyone tempted by the joys of punditry to proclaim that the Roberts court is clearly one thing or another, this is a time to sit back, wait and see."
Some related posts:
- CJ Roberts and sentencing law: the virtues (and vices?) of consensus
- CJ Roberts and sentencing law: his Cunningham work
- Revving up for Claiborne and Rita: sentencing law in four dimensions
- Revving up for Claiborne and Rita: will due process play any role?
- Claiborne and Rita reasonableness case category archive
Sentencing and pardon politics in the Libby case
At TalkLeft, Jeralyn now has this terrifically clear post discussing the legal basics of Libby's sentencing realities. Though my post here spotlights that there may be more play in the guideline joints than Jeralyn details, her analysis provides a good starting point for an examination of the legal issues the Libby lawyers will be exploring as the sentencing process unfolds.
But, as everyone realizes, the Libby case cannot be fully understood or analyzed without an examination of its political dimensions. And though Libby's jury, as detailed here, seemed to do a good job focusing on law rather than politics, the sentencing players will face various political realities as the Libby case moves forward.
One facets of these politics highlights the virtues of sentencing guidelines for judges and prosecutors in high-profile cases. Judge Walton can (and many are suggesting he will) partially insulate himself from political allegations by following the advice of the guidelines at sentencing. Similarly, Fitzgerald's team can (and likely will) recommend a guideline sentence even though they could legitimately argue that the sentencing instructions of 18 USC 3553(a) call for a sentence harsher than the guidelines will recommend. Meanwhile, the defense team has to be attentive to these political realities and seek ways to push Judge Walton below the guidelines.
Another political dimension here concerns how the Bush administration, and especially vice-president Dick Cheney, will seek to support Libby at sentencing. Both before and after Booker, the Bush Administration's Justice Department has been very pro-guidelines. Against this backdrop, it might be hard for Cheney to publically urge a below-guideline sentence for his former employee.
Of course, as an inevitable pardon debate heats up, the discussion becomes all politics and no law. There are no formal legal limits on President Bush's pardon power, so whether and how he helps Libby is all about political calculations. And these political calculations not only could impact President Bush's thinking, but also the already-heated 2008 presidential campaign. Assuming the Libby case continues to make headlines throughout 2007, it will be interesting to see how lawyer-candidates like Giuliani and Clinton and Obama respond to media questions about a possible pardon. (Josh Gerstein's Libby piece in today's New York Sun is already all over these great political issues.)
Some morning capital headlines
Here are a few of the newspaper stories covering death penalty developments that caught my eye this morning:
- From California here, "California death row inmates often wait indefinitely for execution"
- From Florida here, "Death-row inmates often die in prison"
- From North Carolina here, "State sues medical board as it tries to resume capital punishment"
- From Texas here, "Prison gang leader executed in double killing"
Schwarzenegger talking up his prison plans
This AP report spotlights that California Gov. Arnold Schwarzenegger is starting to focus seriously on how to terminate his state's prison overcrwoding problems. Here are some snippets:
Gov. Arnold Schwarzenegger toured a prison for low-level offenders and drug addicts Tuesday while campaigning for an $11 billion reform and building package that he says will alleviate severe overcrowding at the state's 33 prisons. The governor toured parts of the California Rehabilitation Center and met with Warden Guillermina Hall before speaking with reporters in the prison yard....
California's prisons were designed for 100,000 inmates but hold nearly twice that number. Overcrowding is the subject of three separate lawsuits filed in federal courts throughout Northern California. One judge set a mid-May deadline for the state to produce a plan to deal with the crowding. Two judges said they could seek to cap the inmate population, leading to the early release of inmates or keeping convicts longer in county jails, unless the state acts to solve the overcrowding.
Options for an immediate fix are few. Schwarzenegger has recommended an $11 billion prison and jail building program, as well as a review of sentencing guidelines, but both will take months if not years to have any effect.... Two weeks ago, Schwarzenegger and Democratic leaders met urgently in Sacramento to discuss solutions to the overcrowding crisis. Advisers to the governor and legislators have been meeting periodically since then, but have reported little progress in reaching a consensus. Lawmakers said they expect to meet again with the governor early next week.
March 6, 2007
Are there Libby victims (and will they seek to testify)?
Back in October 2004, Congress enacted a comprehensive Crime Victims' Rights Act (codified at 18 USC § 3771). Leading opinions on the CVRA from the Ninth Circuit and from District Judge Paul Cassell indicate that the CVRA guarantees, inter alia, that victims of all crimes have a right to allocute at sentencing.
In the wake of the Lewis Libby verdict, I am wondering whether his crimes have any victims and/or who might reasonably claim to be victims under the CVRA and demand a right to testify at his sentencing. Libby's crimes of obstruction of justice and perjury might technically be victimless under the CVRA terms. That said, one can readily imagine Joe Wilson or Valerie Plame claiming to be victims and trying to assert rights under the CVRA. (Notably, even if Wilson and Plame do not have rights under the CVRA, the sentencing judge likely would have discretion to hear from them if he wanted to.)
Moreover, given the political dynamics surround this case, I cannot help but wonder if some other folks might seek to assert CVRA rights as victims (if only to have a high-profile soapbox). Judge Cassell's CVRA opinion has explained that the CVRA sought to expand broadly victims rights at sentencing:
[T]he CVRA extends its rights more broadly [than prior law to extend] to all crime victims, that is, to any "person directly and proximately harmed as a result of the commission of a Federal offense." The CVRA definition is not limited to certain kinds of crimes. To the contrary, the sponsors of the CVRA described this as "an intentionally broad definition because all victims of crime deserve to have their rights protected."
Are there others persons beyond Wilson or Plame who might be able to plausibly claim they were "directly and proximately harmed" as a result of Libby's offenses?
Some recent related posts:
- Ninth Circuit discusses victim's right to allocute at sentencing
- Victims' rights and the Enron sentencings
More Libby sentencing speculation
The speculations about sentencing in the Libby case are already quite interesting: US News has this brief piece headlined "Libby Looking at 15 Months to Three Years, Experts Predict"; Wonkette has this more fun piece entitled "EXCLUSIVE LEGAL MUMBO JUMBO: What Will Happen to Scooter?" Here is the tail end of the Wonkette coverage:
[A]ssuming that Scooter doesn't have more than one previous conviction for something like DUI, he's got a guideline Offense Level of 17 or 20 points, with no other enhancements bringing it up or credits bringing it down. That's 24-30 months or 33-41 months. Keep in mind that the Judge can use his discretion to go outside the guidelines in any one of 3 ways: give Scooter 2 points off for accepting responsibility (which is unlikely, 'cause it'd require that either effectively confess guilt, ending any appeal hopes, or that the Judge find that the guy has accepted responsibility when he clearly hasn't -- but hey, Martha Stewart’s judge did exactly that); find that his age or health entitles him to some downward departure; or just scrap a bunch of time for shits and giggles.
My guess is 24 months -- the low end of the range for a 17 point offense level. There's also a possibility that the US Attorney could ask for a reduction under Rule 5K or Rule 35 for some sort of substantial assistance, but I wouldn’t hold my breath that Scooter's now going to help, and I wouldn't imagine that Fitzgerald is going to do anything unless Scooter can give up the secret information tying W to Saddaam in a gay sex-for-drugs scheme that took place in Rumsfeld's den.
On related fronts, here at CNN legal analyst Jeff Toobin is exploring "can Scooter Libby extend his time outside of prison long enough to get to that lame duck period when he might actually get a pardon?"
Related Libby sentencing posts:
Documenting and dissecting death's delay
I am very pleased to see that Barry Latzer is guest-blogging about his new death penalty study at Crime & Consequences. His co-authored study, which can be accessed here, is entitled Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study. This USA Today article provided some highlights from the study, and Professor Latzer does so more systematically in his post at C&C.
I am still trying to find time to read the full report, but my cursory review of the findings suggests that the study documents lots of important data and has lots of important insights about post-conviction death penalty realities. I hope to discuss these data and insights a lot in future posts, but let me first just spotlight Professor Latzer's "recommended two general reforms to expedite the direct appeals process:"
First, eliminate intermediate court review. Alabama and Tennessee are the only states that use a two-step capital appeals process: intermediate appellate review followed by high court review. While some judges on the courts of last resort said they appreciated the narrowing of the issues and the second opinion provided by the intermediate courts, the significant time increment far outweighs this benefit. Direct COLR review is much more efficient.
Second, the states should adopt rules or statutes that impose deadlines on actors in the capital appeals process. Such deadlines work. Those states with statutes or court rules that set reasonable but enforceable deadlines for crucial activities such as the preparation of the record, the perfecting of appellate briefs, and the resolution of the case by the appellate court, complete the direct appeals process more expeditiously.
Fourth Circuit reverses sentence on denial of allocution right
The Fourth Circuit today in US v. Muhammad, No. 06-4516 (4th Cir. Mar. 6, 2007) (available here), reversed the outcome of a Booker resentencing because the defendant was denied his allocution rights. Here's the start of an interesting opinion on an interesting procedural issue:
Abdul Hafeez Muhammad, convicted of wire fraud and money laundering offenses, appeals a 121-month prison sentence imposed by the district court following an earlier remand for resentencing. We conclude that the district court plainly erred by denying Muhammad the opportunity to allocute at his resentencing hearing, and we exercise our discretion to notice this error. We therefore vacate Muhammad's sentence and remand for resentencing.
Comparing Lewis Libby and Victor Rita
Among the fascinating aspects of Lewis Libby's now upcoming sentencing is that his high-profile case resembles in various ways the case of Victor Rita, the defendant whose 33-month (within-guideline) sentence is currently under review by the US Supreme Court. I detailed some Libby-Rita parallels in this post last month, and here are the major highlights.
1. The parallel nature of the crimes. Like Lewis Libby, Victor Rita got caught up in a criminal investigation and ultimately was indicted on five felony counts based on allegations that he lied under oath as part of the investigation. And, like Libby, Victor Rita asserted his innocence and exercised his right to a jury trial. (Victor was convicted of all five counts at trial; Libby's was acquitted on one of five counts, but that may not matter much for sentencing purposes.)
2. The parallel personal history. Like Lewis Libby, Victor Rita is an atypical federal defendant because of his career in government service. Rita served 24 years in the Marine Corps, had tours of duty in Vietnam and the first Gulf war, received over 35 military medals and awards. Libby's pre-conviction resume is (equally?) impressive. The federal guidelines do not provide any formal breaks for government service or prior good works. But, with Booker making the guidelines advisory, federal judges have more discretion to consider these matters at sentencing (though Rita's sentencing judge decided just to follow the guidelines).
Since Victor Rita's crimes seems, in context, to be less serious than Lewis Libby's crimes, I view Rita's 33-month sentence as a possible benchmark for Libby's sentence. Moreover, I have heard that Judge Walton has a reputation as a tough sentencing judge, and so Victor Rita's 33 month sentence might even be viewed as just a floor for considering Libby's fate.
JULY 2007 UPDATE: Welcome Huffington Post readers! For more on Victor Rita's case and fate, check out more recent posts here and here. For lots more Bush commutation discussion, check out the latest Libby posts.
First-cut Libby guideline calculations?
In this post early during the Libby deliberation I encouraged thoughtful musing about the advisory guideline range that Libby might be facing were he convicted on all counts. (As regular readers know, for sentencing purposes, conviction on four of five counts is good enough for government work.)
A number of commentors set forth a number of guideline calculation scenarios. It is easy to conclude that Libby falls into Criminal History Category I, but commentators suggested his offense level could be 14 or 17 or 19 or 24 or 27 or 30.
If Libby's calculated offense level is as low as 14, his advisory guideline sentencing range would be only 15-21 months; if it is as high as 30, his advisory guideline sentencing range would be only 97-121 months. Big difference (and this analysis does not even begin to cope with Booker and 3553(a)).
On to sentencing, Scooter!
I just got this news alert from the Wall Street Journal:
A federal jury found Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, guilty of obstruction, perjury and lying to the FBI in an investigation that originated from the leak of the identity of a CIA operative. The jury, which was reduced to 11 jurors after one juror was dismissed after being exposed to case-related information, found Mr. Libby guilty of four of the five counts he faced. He was found not guilty of one charge of false statements. Sentencing was set for June 5.
I will, of course, have a lot to say about the sentencing in the days ahead (and I have now created a new Libby sentencing category archive). Let me start this discussion by reviewing some prior posts on this topic:
- Should the Libby jury be told Scooter could be sentenced on acquitted counts?
- Sincere questions about acquitted conduct sentencing
What should we make of the federal prosecutorial purge?
As detailed in this AP article, "the investigation into the Bush administration's firings of U.S. attorneys intensified yesterday as lawmakers ordered two more ousted officials to tell their stories, and the Justice Department said that Republican Sen. Pete V. Domenici had complained repeatedly to the attorney general about one of the prosecutors." This related AP piece notes that "as many as six of eight former prosecutors dismissed in recent months were expected to tell House and Senate committees Tuesday that they were given little or no information about the reason for their firings."
Currently providing lots of (partisan) coverage is Josh Marshall at TPM. Among other interesting materials, TPM has this comment purportedly from a current federal prosecutor, writing anonymously, who views the prosecutorial purge "as part of a much larger story on the devastating impact of this administration's policies on the institution of the U.S. Attorney's Office." All the recent developments suggest that Tuesday's Senate hearing and House hearing on the firings ought to make for good theater. But is there any deeper story that will truly resonate?
Though much is often made about prosecutorial independence, a certain measure of politics clearly does, and arguably always should, shape prosecutorial policies and decision-making in state and federal criminal justice systems. There will be a Captain Renault quality to these hearings if members of Congress claim to be "shocked, shocked" to find that politics is influencing federal prosecutorial realities.
The challenges of sex offender treatment
The New York Times, with this piece headlined "For Sex Offenders, a Dispute Over Therapy's Benefits," completes its three-part series on sex offender confinement. Here is a snippet:
Treatment methods have become particularly topical as thousands of sex offenders are confined or restricted beyond their prison terms under civil commitment laws on the books in 19 states. The laws have been found constitutional in part because they aim to provide treatment if possible; New York legislators announced last week that the state would soon allow civil confinement.
On average, the civil commitment programs cost four times more than keeping sex offenders in prison. But too little research has been conducted into how to treat sex offenders, experts say, putting psychotherapists and others working in civil commitment centers at a distinct disadvantage.
Taking stock of death's recent decline
The National Law Journal has this article on recent death penalty developments entitled "More Lawmakers Take a Stand Against Death Penalty: Eleven states react to bad convictions, botched executions." Here is how it begins:
A perfect storm of problematic executions, wrongful convictions and recent court rulings against the practice of lethal injection has led a growing number of states to challenge the death penalty through lawsuits and legislative action.
Adding still more to the momentum are a public backlash against the cost of capital cases and the development of more effective defense techniques, such as mitigation specialists who humanize death row inmates.
Eleven states have halted some or all executions -- including Florida and Maryland in December -- and more lawmakers have been speaking out against the death penalty.
March 5, 2007
SCOTUS developments, sentencing-free?
As noted here at SCOTUSblog, the Supreme Court issued two (non-criminal) opinions today and orders. Here are a few sentencing-related thoughts about today's sentencing-free action:
The denial of cert in Bernie Ebbers' appeal is garnering press attention, though I would have been surprised if the Supreme Court had taken up his legal challenge to his conviction. What's unclear is whether Ebbers' cert petition included a challenge to the reasonableness of his 25 year (below guideline, post-Booker) sentence. If Ebbers' did raise a claim about the reasonableness of his sentence, I wonder if SCOTUS considered holding the petition until it decides the standards for reasonableness review in Claiborne and Rita. As noted here, some circuits are holding sentencing appeals pending a SCOTUS ruling, and I would have thought that SCOTUS would be doing the same in any case where the post-Booker sentencing issues are debatable.
Meanwhile, the continued absence of an opinion in James v. US, which concerns criminal history predicate offenses under the ACCA, is making it hard for me to resist speculating that something big might be afoot. When reading the November oral argument transcript in James (discussed here), I kept thinking that this case could provide an opportunity for the Court to overturn the Almendarez-Torres "prior conviction" exception to the Apprendi-Blakely rule. Of course, this issue was not briefed and perhaps the delay in James is the result of the opinon being assigned to a "slow Justice." Still, anytime we get within the ambit of Apprendi-Blakely rules, perhaps it is wise to expect the unexpected.
brings breaks equipoise on post-Booker Rule 32(h) debate
Federal sentencing fans know that, since Booker, the circuits have been deeply split over wither the notice provision of F.R. Cr. P. 32(h) for sua sponte upward departures does or does not apply to Booker variances. Late last week, the Fifth Circuit weighed in through its opinion in US v. Mejia-Huerta, No. 05-11391 (5th Cir. Feb. 28, 2007) (available here). This paragraph usefully summarizes the split and the Fifth Circuit's ruling:
Since Booker, an incongruent pattern of caselaw has developed among those federal circuits that have considered whether Burns or Rule 32(h) continue to apply to non-Guidelines sentences. The Third, Seventh, and Eighth Circuits have answered in the negative; the Second, Fourth, Ninth, and Tenth Circuits have answered in the affirmative. In an unpublished and thus non-binding opinion, we have previously determined that a sentencing court's failure to provide notice of its intention to impose a non-Guidelines sentence post-Booker does not constitute plain error, but we have expressly declined to rule on whether such failure constitutes error. We now enter the fray, agreeing with the bare minority among the circuits that have addressed the issue and thereby bringing the circuit split on this issue into equipoise.
Ahh... equipoise, what a blistful post-Booker state. Let's see how long this lasts.
UPDATE: A helpful reader confirmed my nagging suspicion that the Fifth Circuit's Rule 32(h) head-count was off:
Alas, the Fifth Circuit decision breaks equipose. The Fifth Circuit didn't notice that the Eleventh Circuit has already answered in the negative. See United States v. Irizarry, 458 F.3d 1208 (11th Cir. 2006).
Second Circuit reverses above-guideline sentence as unreasonable
Today in US v. Sindima, No. 06-2245 (2d Cir. Mar. 1, 2007) (available here), the Second Circuit reverses an above-guideline sentence as unreasonable. Here is the start of a long and thoughtful opinion:
Following a guilty plea on federal mail fraud charges, the United States District Court for the Western District of New York (Richard J. Arcara, Chief Judge) imposed upon the defendant, Felix Sindima, a sentence under the United States Sentencing Guidelines of, principally, three years' probation. The terms of probation included a prohibition against Sindima's commission of any further crime. Thereafter, while still on probation, Sindima was charged with two violations of that prohibition. The district court found Sindima guilty of both. On April 13, 2006, the court imposed a sentence of thirty-six months' imprisonment, twenty-six months above the high end of the advisory Guidelines range. Sindima appeals, asserting that the sentence is substantively unreasonable.
We conclude that under the circumstances presented, the district court's statement of reasons for the length of the sentence are inadequate to assure us that they are "sufficiently compelling [and] present to the degree necessary to support the sentence imposed." United States v. Rattoballi, 452 F.3d 127, 137 (2d Cir. 2006). Accordingly, we remand.
Second NYT piece on sex offender confinement
Following up this initial article, the New York Times today has this long story headlined "A Record of Failure at Center for Sex Offenders" as the second of its three-part series on sex offender confinement. Sex Crimes has coverage here (along with lots of other good new stuff), as does Corrections Sentencing here.
Commentary on federal failure-to-register offense
At the National Law Journal, Wayne Logan has this thoughtful piece addressing the new federal Adam Walsh Act, which includes a provision making it a federal crime for sex offenders to cross state lines and not register anew. Here's a snippet:
This past July, Wilfredo Madera did something that millions of people do every year: He changed state residences. His legal status, however, complicated matters. A registered sex offender in New York, Madera was required to register with authorities upon his arrival in Florida. As of October, he had failed to do so, risking five years in prison and a $5,000 fine under Florida law.
By failing to register, Madera joined the thousands of other individuals nationwide who daily violate registration requirements. His case, though, would prove different in a significant way. As a result of the newly enacted Adam Walsh Act, he would be arrested by U.S. marshals, prosecuted in federal court and subject to 10 years' imprisonment and a $250,000 fine, sanctions far in excess of Florida law.
While since 1994 Congress has pressured states to comply with federal registration expectations, threatening loss of funds if they do not, the failure-to-register provision marks a new, complementary modus operandi. Congress has now created a criminal offense, making it a federal felony to cross state lines and not register anew. In October, U.S. marshals undertook Falcon III, a highly publicized roundup of nonregistrants, including Madera, who is the first to be convicted under the new law.
A federal trial court recently rejected Madera's several legal challenges, including that Congress exceeded its authority under the Constitution's commerce clause in federalizing what has always been a state crime. The outcome is sure to be appealed and Madera's case, or one like his, will in time likely come before the U.S. Supreme Court.