January 13, 2007
A hot week for DNA collection debate
As How Appealing documents here, two federal judges this past week declared unconstitutional the federal DNA Analysis Backlog Elimination Act of 2000, which requires the US Probation Office to collect a DNA sample from any probationer, parolee, or supervised releasee "who is, or has been, convicted of a qualifying offense." Ninth Circuit Judge Harry Pregerson, dissented from the Ninth Circuit's ruling that the law is not unconstitutional, contends that the DNA Act exceeds Congress's power under the Commerce Clause. And, earlier this week, Massachusetts District Judge William Young of the District of Massachusetts issued this remarkable decision holding that the DNA Act violated the Fourth Amendment rights of a man sentenced to probation for a theft offense.
A belated Booker birthday wish
I forgot to note yesterday that Booker is now two years old; the decision converting the federal guidelines from mandates to advice was handed down the morning of January 12, 2005. Happy (belated) birthday Booker!
As Booker begins the terrible twos, I am not sure what I find most surprising: (1) that the ruling has changed so little about the operation of the federal sentencing system; (2) that Congress passed fewer ugly federal sentencing laws in the two years after Booker than it did in the two years before Booker; or (3) that we still do not have answers to a lot of the issues and questions I discussed on this blog in the first 24 hours after the ruling.
January 12, 2007
Weekend sentencing reading
In the latest edition of "SmartCILP" hitting my in-box today, I noticed these two notable sentencing notes:
- Evan Bolla, Note, An unwarranted disparity: granting fast-track departures in non-fast-track districts, 28 Cardozo L. Rev. 893-930 (2006).
- Joanna D'Avella, Note, Death row for child rape? Cruel and unusual punishment under the Roper-Atkins "evolving standards of decency" framework, 92 Cornell L. Rev. 129-155 (2006).
Also, I see that Sex Crimes has this review of (and link to) Professor Wayne Logan important and interesting recent article on sex offender residency restrictions, entitled Constitutional Collectivism and Ex-Offender Residence Exclusion Laws, 92 Iowa L. Rev. 1 (2006) (from SSRN here).
Another SCOTUS capital case grant that has me wondering
As detailed here at SCOTUSblog, the Supreme Court today added four new cases to its docket in the current Term, "including a test of federal courts' authority to overturn a state trial judge's decision to remove a juror from a capital trial because of that juror's views about capital punishment." Here's Lyle Denniston's description of new capital case, Uttecht v. Brown (06-413):
During jury selection in this Washington State murder case, the trial judge dismissed a juror because of equivocal statements about the death penalty. After the Washington Supreme Court upheld that dismissal, the case went to federal habeas court, leading to a Ninth Circuit ruling that barring a juror is allowed only if it is clear that that juror would not follow the law.
Regular readers know that I am aggravated that the Supreme Court spends so much time on death penalty cases (especially now that only a few states in the entire nation have a truly functioning death penalty). Brown adds to my aggravation, in part because it is not clear what broader jurisprudential issues are at stake to justify its place on the Supreme Court's incredibly shrinking docket. So, the grant in Brown has me wondering....
1. Has SCOTUS essentially decided that, in all capital cases, it will be in the business of error correction (at least when a federal court appears to have wrongfully overturned a state death sentence)?
2. Especially if SCOTUS plans to be in the business of capital error correction, what's happened to the device of summary reversal? In Brown, notably, the petition requests a summary reversal. Though I've not checked the data, I think we've seen fewer summary reversals this Term along with fewer cert grants.
3. Even if the Court cannot resist the lure of capital cases, why not tackle cases with broad impact like the standards for lethal injection or the procedures for implementing Atkins?
4. Does the Court realize that, because only a few states in the entire nation have a truly functioning death penalty, its ultimate decision in Brown, whatever it is, likely won't impact more than a handful of cases in a handful of states?
5. Is the cert grant in Brown yet more evidence, along with all the other recent docket struggles, that it is time for Chief Justice Roberts to drain the cert pool and start seriously exploring other case selection protocols?
Some DC Circuit opining on Booker
The DC Circuit's Booker work today in US v. Henry (aka Money), No. 04-3076 (DC Cir. Jan. 12, 2006) (available here), and especially Judge Brett Kavanaugh's great concurring opinion, has me thinking about one of my favorite movies from the 1990s. To paraphrase one of my favorite Swingers quotes from the character Trent: "The DC Circuit and Judge Kavanaugh are so money, and they don't even know it!"
The Booker issue in the Henry case concerns whether the defendants (one of whom is known as Money) are entitled to a Booker resentencing. Concurring, Judge Kavanaugh writes seven pages to "note a few broader points about the path of post-Booker jurisprudence in the federal courts." All of Henry, and especially Judge Kavanaugh's concurrence, is today's morning must-read. I will spotlight two of the many great paragraphs from Judge Kavanaugh's opinion:
To be sure, district and appeals courts now take some additional and important procedural steps (as exemplified again by today's per curiam opinion). But the bottom line, at least as a descriptive matter, is that the Guidelines determine the final sentence in most cases. And notwithstanding the Booker constitutional opinion, many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. The oddity of all this is perhaps best highlighted by the fact that courts are still using acquitted conduct to increase sentences beyond what the defendant otherwise could have received — notwithstanding that five Justices in the Booker constitutional opinion stated that the Constitution requires that facts used to increase a sentence beyond what the defendant otherwise could have received be proved to a jury beyond a reasonable doubt.
In short, we appear to be back almost where we were pre-Booker. And if that is so — and if the lower courts' effort to harmonize the competing goals of the Booker opinions has become the jurisprudential equivalent of a dog chasing its tail — it makes sense to examine how current sentencing practices square not just with Booker but with underlying constitutional principles.
As Trent says: "Baby, that was money! Tell me that wasn't money."
Another intriguing student piece on Booker
I have lauded recently here student sentencing scholarship, and a new piece available through SSRN looks like an effective addition to the genre. This piece, available here, is entitled "Enabling Self-Scrutiny to Balance Post-Booker Discretion: Resolving the Circuit Split in Favor of Notice Prior to Sua Sponte Imposition of a Non-Guidelines Sentence." Here is the abstract:
This paper 1) notices that Booker uprooted the statutory basis for the departure concept, suggesting that courts are at liberty to deviate from precedent rooted in the pre-Booker concept; 2) explains why Rule 32(i)(1)(C) as read by Burns v United States requires notice prior to sua sponte non-Guidelines sentences in those jurisdictions that require a distinct legal determination if a non-Guidelines sentence is warranted; and 3) discusses why such notice would be beneficial in other jurisdictions.
Landes and Posner on the economics of pardons
Thanks to this post a Legal Theory Blog, I see that William Landes and Richard Posner have posted a paper titled "The Economics of Presidential Pardons and Commutations" at SSRN here. Here is the abstract:
This paper develops a simple economic model of the demand for and supply of presidential pardons (including commutations and other clemency grants). The model assumes that the number of pardon applications depends on the expected benefits and costs of applying and the number of pardons depends on the president's calculation of his net political benefits from approving an application. This yields an equilibrium number of applications and pardons that can be estimated from time series data over the 1900 to 2005 period. Overall, the regression results support the model. For example, we find that the likelihood of receiving a pardon has a positive effect on applications; and that increases in the number of persons paroled (a substitute for a pardon) and in the time from conviction to pardon (which lowers the benefits of a pardon) reduces the number of applications. We also observe a positive time trend in applications that corresponds to the increase in the number of federal prisoners (and persons released from prison) that make up the pool of potential pardon applicants. With respect to the number of pardons, we find that democratic presidents (who we expect to be less tough on crime) are more likely to grant pardons; that the crime rate has a negative impact on pardons; and that the number of pardons increased during Prohibition and during wartime and postwar periods.
Though I am intrigued and pleased to see Landis and Posner applying economic models to some sentencing decision-making, I would be more excited if their energies were devoted to more common decisions like, say, judicial sentencing decisions in white-collar cases or in sex offender cases.
January 11, 2007
Will the USSC have a new crack of Booker guidelines next week?
As detailed here, the US Sentencing Commission has a public meeting scheduled for Wednesday afternoon, January 17, 2007, and the agenda here includes an item listed as "Possible Votes to Publish Guideline Amendments and Issues for Comment."
In the wake of the USSC's November hearing on crack sentencing, and the fact that it has now been a full two years since the Booker decision, am I naive to hope that there a guideline amendments on the horizon that will try to deal with the ugliness of the current crack guidelines and the reality that the Booker decision appears here to stay?
Some recent related posts:
- What's the USSC doing these days?
- Examining crack sentencing in the new Congress
- Key questions for USSC: Now what...?
- Exciting times at the USSC
- USSC releases official priorities
Some older related posts:
Eleventh Circuit affirms huge upward variance
I have gotten pretty used to the reality that, in Booker reasonableness review, most downward variances are picked apart by circuits when the government appeals, while nearly all upward variances are affirmed over a defendant appeal (evidence here and here). But the Eleventh Circuit today got my attention by affirming as reasonable in US v. Turner, No. 05-14388 (11th Cir. Jan. 11, 2006) (available here), an upward variance that added 15 years to a sentence when the guidelines advised around 5 years.
Trelliny Turner was convicted (with her boyfriend) of "multiple offenses arising out of her role in the theft of approximately $266,000 from a U.S. Post Office in Valdosta, Georgia." She faced a guideline range of 51 to 63 months imprisonment. At sentencing, she sought "a sentence below the range, [stressing that she] had no prior criminal history, that she had been gainfully employed during her adult life, that she had honorably served in the U.S. military, and that she was the mother of four children." Obviously unmoved, the district court imposed a sentence of 240 months, stressing particularly a lack of remorse and a call in which the Turner and her boyfriend "discussed the willingness to murder federal agents during the execution of a search warrant at [her] residence."
The Eleventh Circuit affirms this huge upward departure, asserting that " we cannot say the district court's sentencing rationale was unreasonable under Booker." As is the norm, there is no express consideration of how this huge upward variance conforms to Congress's commands in section 3553(a) of the Sentencing Reform Act that a federal sentence be "sufficient, but not greater than necessary, to comply with the purposes of punishment." Even if it was reasonableness to view the guideline range as unreasonable, was it necessary to quadruple the sentence for Turner?
Recent DP deterrence debate in the legal academcy
Over at my new course blog, Death Penalty Course @ Moritz College of Law, I have followed-up a class discussion of the law professor debates over new deterrence evidence with this post linking to a number of the leading articles. My list is necessarily abridged, but likely still provides a good primer for anyone interested in recent law review writing about deterrence and the death penalty.
Ninth Circuit resolves intriguing issue on Booker's reach
Though the decision likely won't impact many defendants, the Ninth Circuit today in US v. Hicks, No. 06-30193 (9th Cir. Jan 11, 2007) (available here), resolved an interesting little issue concerning Booker's reach:
In this appeal, we consider whether United States v. Booker's requirement that the district courts treat the United States Sentencing Guidelines as advisory applies to the resentencing of defendants pursuant to 18 U.S.C. § 3582(c). We hold that it does. Because the district court considered the Guidelines mandatory when resentencing appellant Aaron Hicks, we vacate his sentence and remand to the district court for further proceedings.
Speculating about Cunningham's composer
The latest "Supreme Court Today" newsletter by Aaron Streett of Baker Botts (available here) includes these thoughtful speculations about who's hard at work on the Cunningham case still pending before SCOTUS:
ASSIGNMENT WATCH: Two opinions remain of the 9 from the October sitting, and 2 Justices have not yet written opinions — RBG and SGB. The 2 remaining cases are Cunningham v. California (constitutional challenge to California sentencing guidelines) and Global Crossing v. Metrophones (administrative law/private cause of action under 1996 Telecom Act).
It is exceedingly difficult to guess our mystery authors. After all, both RBG and SGB played key roles in Booker, the case on which Cunningham turns — Breyer as the author of the remedial opinion, and Ginsburg as the swing vote who joined different 5-4 majorities to first strike down the federal Guidelines, and then to salvage them by making them advisory. As a result, either one could be writing Cunningham to uphold California's guidelines. On the other hand, either one could be writing Global Crossing: Breyer was an administrative law professor, and Ginsburg a former D.C. Circuit judge who also has expertise in that area.
My purely speculative guess: Breyer writes upholding California's system as salvaged by the California Supreme Court, thus reprising his role in Booker. And RBG pens Global Crossing over multiple dissents or concurrences (which would explain why the speedy RBG has been so slow in issuing her first opinion of the Term). However, if the Chief's dog adoption from the October sitting means that he was in the minority in both Cunningham and Global Crossing, then the roles could be reversed, with RBG striking down the California guidelines (over JGR's dissent) and SGB writing Global Crossing.
A final word of caution: virtually all of this speculation rests on the assumption that Roberts and Alito will mirror their predecessors' pro-Guidelines/anti-Apprendi views, thereby maintaining four votes to uphold judicial sentencing schemes. If either JGR or SAA turns out to be pro-Apprendi, however, then it would seem almost certain that RBG is writing Cunningham to invalidate California's guidelines.
How to consider victims opposing killer's execution?
As stressed in posts here, I find the role of victims at sentencing quite intriguing and far more nuanced than most realize. (The two latest issues of the Federal Sentencing Reporter focused on victims effectively spotlight many of these nuances.) An intriguing example of these issues in a death penalty context emerges from this Ohio story about a murder victim's family's plan to seek clemency for their daughter's killer:
The Murrays love for their lost daughter is prompting them to make an extraordinary request by asking Gov. Ted Strickland to spare the life of Gregory McKnight, the man who kidnapped and killed her. He left her body rolled up in carpet in a vacant trailer on his Vinton County property. The family will appeal either directly to the governor or through a petition drive. To act on the request, the governor would need an Ohio Parole Board recommendation, which he could request.
Although many parents wouldn't consider such a move, the Murrays searched their grieving hearts and found "love and loyalty" for their daughter's wishes far outweighed any thoughts of revenge. "It's about Emily. It's about the people of Ohio. When we execute someone, in some subtle ways, we may harm ourselves," Mr. Murray said in a telephone interview from his home. If McKnight was serving a life sentence without the possibility of parole, "We would have less reason to think about him," Mrs. Murray said.
McKnight, 30, is on Death Row at the Ohio State Penitentiary in Youngstown. He was convicted and sentenced to death for abducting and killing Murray and Greg Julious, 20, in November 2000. Julious' burned body parts were found scattered around the property....
Vinton County Prosecutor Timothy Gleeson said the death penalty in McKnight's case is justified and fair. He vowed, however, to do "absolutely nothing to prevent the governor from considering anything and everything that the Murrays may present." "I would actually encourage the governor to consider what they have to say. I very much appreciate and respect the Murrays' opinion on this. They have a unique perspective."
The article does not even mention the family of McKnight's other murder victim, Greg Julious. If Julious' family also opposes McKnight's execution, does this become an easy case for clemency for Ohio's new Governor? If Julious' family is eager for McKnight's execution, are the Murrays' opinions of far less consequence?
January 10, 2007
Another terrific Posnerian flourish calling for data-driven sentencing
In this post about a Seventh Circuit ruling a few months ago, I highlighted again the Kafkaesque reality that, as discussed before here and here, so many seemingly non-violent state offenses can qualify as crimes of violence to trigger severe federal sentence enhancements. As the Seventh Circuit Blog has noted here, Judge Posner takes on these issues through a strong panel opinion in US v. Chambers, No. 06-2045 (7th Cir. Jan 9, 2007) (available here).
Chambers, which echoes some themes that arose when the Supreme Court heard argument on a similar issue in the James ACCA case recently, is a must read for all federal sentencing fans. Here are just some of the highlights:
[I]t is an embarrassment to the law when judges base decisions of consequence on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences or fail to return from furloughs or to halfway houses....
The Sentencing Commission, or if it is unwilling a criminal justice institute or scholar, would do a great service to federal penology by conducting a study comparing the frequency of violence in escapes from custody to the frequency of violence in failures to report or return. Should it turn out that the latter frequency is very low, this would provide a powerful reason to reexamine [recent Seventh Circuit rulings]. Alternatively, Congress, which has investigative tools, might examine the issue with a view toward a possible clarification of 18 U.S.C. § 924(e)(1)....
It is apparent that more research will be needed to establish whether failures to report or return have properly been categorized by this and most other courts as crimes of violence. Notice too that if courts insist on lumping all escapes together in determining whether escape is a crime of violence, the enormous preponderance of walkaways could well compel a conclusion that escape is never a crime of violence. Some disaggregation seems indicated, but to do it sensibly we judges need data.
Around the blogosphere
Lots of amazing sentencing stuff at lots of my favorite blogs lately, particularly at:
- Appellate Law & Practice
- Crime and Consequences
- Corrections Sentencing
- Ohio Death Penalty Information
- Sex Crimes
In addition, as I mentioned briefly here, this semester I am experimenting with a class blog for my Death Penalty course. Today was the first class, and thus ame the day for launching the new blog, cleverly titled Death Penalty Course @ Moritz College of Law. Though I am doing all the blogging there right now, soon I will expect students to do some posting. In the meantime, I hope SL&P readers (especially those particularly interested in the death penalty) might check out and perhaps comment on my course blogging experiment.
What can we make of Justice Scalia's take on structural/harmless errors?
New Jersey lawyer Steven Sanders, who has long been thoughtfully examining the issue of how to deal with Blakely errors, sent me this thoughtful comment about Justice Scalia's curious work yesterday in his dissent in United States v. Resendiz-Ponce:
The Apprendi line of cases has seen its share of side-switching or seemingly contradictory votes by Supreme Court justices, usually without explanation. For example, Justice Thomas has publicly stated that Almendarez-Torres v. United States should be overruled, admitting in the process that he voted for the wrong side. Similarly, Justice Scalia is the only justice to vote with the majority in both Apprendi and Harris v. United States. Finally, Justice Ginsburg voted to join both majority opinions in United States v. Booker.
Yesterday, Justice Scalia dissented in United States v. Resendiz-Ponce and stated that he would deem the indictment-omission error he thinks occurred in that case structural, citing to his dissent in Neder v. United States. In Neder, the majority said that withholding an essential element from a petit jury is not structural and is amenable to harmless-error review. Justice Scalia disagreed, and so his pronouncement that an indictment's failure to allege an essential element is also structural error ought not to surprise us. The only problem is that in June 2006, Justice Scalia voted with the majority in Washington v. Receunco, which, relying heavily on Neder's majority opinion, concluded that a jury's failure to determine a sentence-enhancing fact, in violation of Apprendi's holding, is amenable to harmless-error review. This would suggest that Justice Scalia distinguishes between essential crime elements and sentence-enhancing (or "Apprendi") elements for purposes of determining whether a Sixth Amendment error is amenable to harmless-error review.
One possible explanation for these seemingly inconsistent votes is that Justice Scalia's Neder dissent did note that, despite labeling the error "structural," an appellate court could vote to affirm if it were satisfied beyond a reasonable doubt that the jury had necessarily found the omitted fact in reaching its verdict. In Recuenco, there is almost no doubt that that's what occurred. But the Court, following its usual practice in cases emanating from state courts, vacated the judgment and remanded to the Washington Supreme Court so that the state court could perform the harmless error analysis in the first instance. Could it be that Justice Scalia agreed with the ultimate result in, but not the reasoning of, Recuenco and chose not to write a concurring opinion to make that clear?
Lots of sentencing in ABA Journal
I just received my copy of the January 2007 ABA Journal, and I was pleasantly surprised to see lots of sentencing articles. The now appear available here, and include:
- A Deal with Death: More states make child molestation a capital crime—and face likely challenges
- Death Be Not So Complicated: U.S. Supreme Court addresses fairness of four sentencing hearings
- Scarlet Letter Sentencing: Judges may feel more free to craft sentences that suit the crime (need to scroll from link to get to this).
Final(?) follow-up on Burton
Thanks to How Appealing, at this link you can read Brent Kendall's thoughtful report in the Daily Journal of California on the Supreme Court's somewhat disappointing Burton ruling yesterday. The piece is entitled "Justices Reject 'Blakely' Follow-Up," and here is a taste:
A potentially important U.S. Supreme Court case on criminal sentencing fizzled out Tuesday as the justices announced that legal technicalities prevented them from deciding whether a landmark 2004 decision strengthening a defendant's jury-trial rights should apply retroactively....
Given the Supreme Court's interest in answering the Blakely retroactivity question, the justices could grant review in another case soon - if a good case is available to them. Stanford University law professor Jeffrey L. Fisher, who argued and won Blakely and argued Burton's retroactivity bid, said he and others were "shaking the trees" in search of a case that raised the same issue. The court could line up another prospect soon. "It looks like the court may well have something on its docket to take a shot at this," Fisher said.
Recent related posts:
If you are not easily bored (or disgusted)...
by Eighth Circuit decisions affirming above-guideline sentences, be sure to check out the Circuit's work today in US v. Garnette, No. 06-1053 (8th Cir. Jan 10, 2007) (available here) and US v. D'Andrea, No. 06-1115 (8th Cir. Jan 10, 2007) (available here).
Notably, both Garnette and D'Andrea involve sentencing for child-porn related offenses sentencing. In Garnette, the panel finds reasonable an upward variance adding nearly four years of extra imprisonment; in D'Andrea, the panel finds reasonable an upward departure adding almost seven years imprisonment based on uncharged conduct.
UPDATE: The Fourth Circuit also today found an above-guideline sentence reasonable in US v. Hernandez-Villanueva, No. 06-4211 (4th Cir. Jan 10, 2007) (available here).
I wonder how many defendants losing these days on reasonableness review are (1) seeking cert. and (2) likely to get a GVR after SCOTUS addresses reasonableness review in Claiborne and Rita.
Potent commentary on the Genarlow Wilson case
Sherry Colb has this potent essay today at FindLaw discussing the sad case of Genarlow Wilson (which, as detailed below, I have been following closely). The commentary is entitled "The Harsh Wages of Sin: Why Genarlow Wilson is Languishing in Prison," and here are just a few of the many great insights from the piece:
Based on the evidence — which included a videotape of the crime while in progress — the conduct for which Wilson [was sentenced to spend 10 years] behind bars was consensual oral sex with a 15-year-old girl when he, Wilson, was himself only 17 years old....
If we did not know that Wilson's disturbing predicament had arisen in the United States, we might assume that we were hearing about a case in a theocracy. His case, however, sheds light on a disturbing fact regarding our criminal justice system, a reality about which we have grown complacent: people in the U.S. are routinely condemned to spend years in brutal prisons as punishment for behavior that harms no one....
Whatever role religion or other commitments of the Georgia electorate may have played in the criminalization of victimless sexual conduct and/or drug offenses, we cannot overlook the role of race. The fact that Genarlow Wilson, a promising young man who had no prior criminal record, is African-American, should be neither ignored nor considered irrelevant to the definition of "sin" as crime....
[A]s some have already observed, not everyone in Georgia suffers the treatment that Wilson did, even though white teenagers are presumably as sexually active as their African-American counterparts. [Prosecutor] David McDade much too blithely dismissed the racism accusation, saying that, "I'm standing up for African-American victims in this case." Since the "victim" in question did not want to press charges and did not even testify for the prosecution, McDade's assertion is not especially compelling....
The injustice to Wilson is thus complete: A person innocent of any wrongdoing is spending ten years of his life in prison, and there is reason to think that he would not be doing so if he were white. (The alternative hypothesis is that white teenagers always ask for identification when they receive oral sex, to make sure that their companions are not themselves teenagers a year or two younger than they). Such conduct should not be criminal at all, and it is shameful that a prosecutor has the audacity to act as though he had no choice but to pursue the case.
Recent related posts on Wilson case:
- Why isn't the severe Georgia sentence constitutionally problematic?
- Time for a common-person approach to the Eighth Amendment
- Provocative questions about Georgia sentencing injustice
- The nuance in my provocation
- Another editorial urging release of Genarlow Wilson
- NYT adds to chorus calling for Genarlow Wilson to be freed