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
January 9, 2007
First execution in 2007 on tap in Oklahoma
Despite a lot of nationwide hub-bub about lethal injection protocols about other death penalty uncertainties (details here), the first lethal injection execution of 2007 is likely to go forward in Oklahoma in a few hours.
This AP story provides a lot of details on the horrific crime 15 years ago that landed Corey Duane Hamilton (and none of his co-defendants) on death row. The article also notes that the "U.S. Supreme Court denied Hamilton's final appeals on Monday. In a three-sentence order, the court said Justices David Souter and John Paul Stevens voted to grant a stay of execution."
UPDATE: As detailed in this local account, the lethal injection execution went forward apparently without any difficulties. The story recounts these intriguing final words from Hamilton: "I wish everyone could experience the love of God the way I have. I love everyone. To the victims' families, I pray that you have peace and all that you are in need of."
This Reuters article notes that the first of five Texas executions scheduled for January is slated to take place on Wednesday.
A little praise for Judge Posner
Regular readers know that I have complained a lot about some of Judge Richard Posner's sentencing rulings. But, to show I am as happy to share praise as I am to share criticisms, let me give a shout-out to Judge Posner for his work today in US v. Radomski, No. 05-3792 (7th Cir. Jan 9, 2007) (available here). Though not a sentencing opinion, Radomski closes with a paragraph that only a federal prosecutor couldn't love:
There is no great mystery about why the jury nevertheless voted to convict Radomski. He did conspire with Zawistowski to commit a criminal act, as well as trying to kick one of the policemen who arrested him. (Radomski is a former trainer of the Polish boxer Andrew Golota—the world's most colorful boxer. See http://en.wikipedia.org/wiki/Andrew_Golota.) And his accomplice was in all likelihood a drug dealer. But not having been charged with the crime he actually committed, Radomski is entitled to an acquittal.
Is the big bad government afraid of lil' ole me?
As detailed this post, a few months ago I filed (with the help of great folks at Holland & Knight) an amicus brief arguing that the Eleventh Circuit should affirm the below-guideline sentence given to Sergeant Patrick Lett, a federal defendant with 17 years of honorable Army service including two tours of duty in Iraq. (Background is here and here, and where you can find my filed brief.) After filing my amicus brief and learning that the Eleventh Circuit had scheduled oral argument in the case, I filed a motion a few weeks ago requesting some oral argument time.
Today I have learned that the US Attorney for the Southern District of Alabama has formally opposed my motion for oral argument time. In this opposition, which can be downloaded below, the government asserts that "[a]ny argument offered by Professor Berman would merely be cumulative of points that will certainly be addressed" by Lett's appointed counsel.
Needless to say, I have no interest in traveling to Alabama (at my own expense) for oral argument just to present cumulative points to the Eleventh Circuit panel. I authored the brief and now want a little argument time because I think Lett's case provides a terrific example of how reasonableness review can and should be applied without excessive emphasis on guideline provisions. The case also is an excellent setting for exploring, as I have discussed here and here, whether and how federal sentencing laws can and should consider a defendant's personal history of distinguished military service.
After last night's disappointing football game, I would not expect anyone from SEC territory to be scared by a Buckeye. But perhaps the government just reasonable fears that it might not continue its winning ways on Booker reasonableness review if I am allowed to help even the (often uneven) appellate playing field.
Shouldn't SCOTUS have just DIG'd Burton?
Here is a question for SCOTUS gurus: shouldn't the Supreme Court in Burton have just dismissed the petition as improvidently granted (a DIG), rather than turn the case into a ruling on federal AEDPA law?
The Court's per curiam ruling in Burton v. Stewart can be found at this link, and the first two sentences of the opinion tell the heart of the story:
We granted certiorari in this case to determine whether our decision in Blakely v. Washington, 542 U.S. 296 (2004), announced a new rule and, if so, whether it applies retroactively on collateral review. We do not answer these questions, however, because petitioner — a state prisoner seeking postconviction relief from the federal courts — failed to comply with the gatekeeping requirements of 28 U.S.C. §2244(b).
Because Burton was supposed to be about Blakely retroactivity, the parties and amici focused on this complicated and very consequential issue. (The Burton briefs can be found here.) But the per curiam opinion, while avoiding Blakely retroactivity issues completely, turned into a fairly extensive exegesis of how to apply provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
The parties in Burton barely discussed AEDPA in their briefs, and the Solicitor General's amicus brief did not even mention this issue. Though I am not sure if Burton breaks any important AEDPA ground, wouldn't a truly reserved Court have just DIG'd this case rather than opine on a set of issues that were not fully briefed?
Because the AEDPA issue involved a jurisdictional matter, perhaps the Court considered a DIG inappropriate. But I still think a DIG followed by a grant in another Blakely retroactivity case would have been a much better way to deal with these matters after so many folks, upon the Court's decision to grant cert, spent so much time and energy on the important (and now still unresolved) Blakely retroactivity issue.
UPDATE: I'm convinced by commentors to this post and Howard that the jurisdiction issue and other related considerations justified the Court's decision not to simply DIG Burton. Left open, however, is whether, when and how SCOTUS will finally get to the issue of Apprendi and Blakely and Booker retroactivity.
Relatedly, I think the AP's headline reporting on the Burton ruling is telling: "High Court Rules Against Wash. State Rapist Who Wanted Sentence Reduced." I guess that headline is accurate, but it certainly gives the case a different flavor than one might expect.
ANOTHER UPDATE: In you really dig DIGs, be sure to check out a recent article just brought to my attention: Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 Wisconsin Law Review 1421.
Duck and cover from SCOTUS
As detailed here by Lyle Denniston, the Supreme Court today issued two opinions in criminal cases that managed to avoid the merits of seemingly important questions. Here is Lyle's early report:
[T]he Court declined to rule on the question of whether the sentencing decision in Blakely v. Washington in 2004 is to be applied retroactively in federal habeas cases. The Court found in Burton v. Stewart (05-9222) that the state prisoner in the case had failed to comply with the "gatekeeping" requirements of federal habeas law, so the District Court had no jurisdiction in the case. The Court issued the decision in an unsigned opinion; there were no dissents.
In a ... final ruling of the day, in U.S. v. Resendiz-Ponce (05-998), the Court declined to decide the issue it had agreed to hear -- that is, whether failure to include in a criminal charge an element of the offense can ever be excused as "harmless error." The Court found that the indictment in this case was not defective, so it need not reach the granted question. Justice John Paul Stevens wrote the opinion for an 8-1 Court. Justice Scalia dissented.
Updates with substantive comments will follow once I have a chance to consume these efforts. But first I cannot help but scratch my head about --- and critically assail --- how poorly the cert. pool seems to be operating in the Roberts era. Since Blakely was decided in 2004, many dozens (perhaps many hundreds) of state defendants have sought cert on the decision's retroactivity. With plenty of different possible vehicles, the Justices managed to pick a case (Burton) one with a procedural headache that has now further delayed the resolution of an important issue.
Striking a pose against federal mandatory minimums
Tuesday's New York Times has this interesting article entitled "Judges Look to New Congress for Changes in Mandatory Sentencing Laws." As spotlighted here, the article includes pictures of two of SL&P's favorite district judges, Judge Nancy Gertner (D. Mass.) and Judge Paul Cassell (D. Utah). Both judges look quite dapper in the pictures (which you can enlarge with a click), though I'm intrigued that Judge Cassell appears in his robe, while Judge Gertner gets the mood-lighting-books-in-the-background treatment.
The full Times piece is worth reading; here is a snippet noting that even judges appointed by Republicans are hoping the new Democratic Congress will consider scaling back some mandatory sentencing terms:
Among those eagerly awaiting signs of change are federal judges, including many conservatives appointed by Republican presidents. They say the automatic sentences, determined by Congress, strip judges of individual discretion and result in ineffective, excessive penalties, often for low-level offenders....
"With a changing of the guard, there should at least should be some discussion," said William W. Wilkins, chief judge of the United States Court of Appeals for the Fourth Circuit, who was nominated by President Ronald Reagan.
The House Judiciary Committee, under the new leadership of Representative John Conyers Jr., Democrat of Michigan, is planning hearings on the laws, starting later this month or in early February. One of the first issues planned for review is the sentencing disparity between offenses involving powder and crack cocaine....
Significant SCOTUS sentencing action this week?
I am now hoping for a big SCOTUS sentencing week to help me forget about the ugly butt kicking the Buckeyes took in the national championship game. (On the football front, what was more surprising: how badly Troy Smith played or how badly Jim Tressel was out-coached? Well, at least I got the over/under right.)
As previewed here at SCOTUSblog, Tuesday brings a capital sentencing case with SCOTUS argument on AEDPA and IAC issues in Schriro v. Landrigan. But I am really hoping we might get some rulings to spice up the new year. Though I am not expecting too much, Cunningham (on Blakely's applicability in California) and Burton (on Blakely's retroactivity) and James (on the impact of certain priors) could all be handed down relatively soon.
January 8, 2007
A prima facie case of cruel and unusual punishment?
Thankfully, my hometown Columbus Dispatch was able to take a brief break from non-stop Buckeye football coverage to break this story about an obviously violation of the Constitution's prohibition of cruel and unusual punishments:
A deep-fried, sugar-coated fugitive from the food police is being sentenced to leave Franklin County's jails. Jail officials say they're dropping doughnuts from inmates' menus because the county commissioners raised questions about their nutritional value and trans-fat content. "Why prisoners need doughnuts, I don't know," said Commissioner Mary Jo Kilroy, who put a $55,000 annual doughnut contract on hold last month.
I think Homer Simpson might say they should call Franklin County's Commissioner Mary Jo Kill-joy!!
(Can you tell I am getting a bit punchy waiting for the big game?)
What's the over/under on executions for 2007?
The over/under on tonight's big game right now is set at 46. Were I a betting man, I would take the over. But if 46 was set as an over/under for the number of executions in the United States in 2007, I probably would take the under.
As shown here, though the number of executions has declined in recent years, the US still has averaged more than 50+ executions each year for the last dozen years. Yet, heading into 2007, there are many new legal dynamics likely to drive down the number of executions; lethal injection debate and litigation, some new administrations, and continued Supreme Court engagement all could significantly reduce how many executions are carried out in 2007.
But, as spotlighted by ODPI in posts here and here, the death penalty landscape is probably more impacted by evolving political realities than legal issues. If elected officials (including state judges) discover they can disrupt marches to death chambers without serious political fall-out, there could be amazingly few executions (except perhaps in Texas) throughout 2007.
Are you ready for some football (posts)?
In honor of what should be a pretty good game tonight, I cannot resist a few football-related posts today. To begin, consider this article's discussion of a creative sentencing order:
A judge has ordered 34 unruly football fans ... to pick up litter and to perform other acts of community service Monday, the day Ohio State plays for the national championship. The fans — a mix of students, locals and out-of-towners — admitted to underage drinking, disorderly conduct or both Nov. 18, when the top-ranked Buckeyes defeated rival Michigan.
Municipal Judge Julia Dorrian, an Ohio State alumna, said she scheduled the community service Monday to send a message. "What we have to remember is we have to abide by the law. I picked this particular date for community service because it would help folks remember that," Dorrian said.
While other fans will be gearing up for Ohio State's showdown with No. 2 Florida in Glendale, Ariz., the 34 people who received the sentence are expected to spend the day sweeping cigarette butts out of parking lots, cleaning restrooms, picking up litter and pulling weeds at such places as the Columbus Zoo and Aquarium and the state fairgrounds.
Analyzing lawyering's impact on sentencing outcomes
Judge Morris Hoffman, an academically minded Colorado state court judge, has this op-ed today in The New York Times entitled "Free-Market Justice: Why do private lawyers do better than public defenders?". The piece discusses the results of an econometric study on the effectiveness of public defenders, which he first discussed in this article, entitled "An Empirical Study of Public Defender Effectiveness: Self-Selection by the 'Marginally Indigent,'" published last year in the Ohio State Journal of Criminal Law. Here are snippets from Judge Hoffman's op-ed:
We looked at all 5,224 felony criminal cases filed in Denver in 2002. Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we used the one thing criminal defendants care about most: the amount of jail or prison time they receive....
The results were surprising. The average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers.... [And] when we removed the control for the seriousness of the crime, public defenders performed relatively worse, not better (five years more incarceration versus three years more)....
What in the world could explain such a result? It turns out that the explanation, at least in part, is one that should put a smile on the face of all free-marketers and rational choice theorists: criminal defendants, just like any other consumers of services, appear to be making choices based on their rational assessments of costs and benefits....
Our data suggested that, contrary to the law's rather binary notion of indigency, a large chunk of felony criminal defendants are what we have called "marginally indigent." They could, if they had to, tap hidden resources, or the resources of family and friends, to retain private lawyers. But what drives that decision? Just what you'd expect from any rational consumer of criminal defense services: a combination of the seriousness of the offense and the likelihood of conviction....
[M]arginally indigent defendants who choose public defenders tend to be guilty. And of course if that's true, it's not at all surprising that public defenders would achieve less favorable outcomes. More work needs to be done to confirm these results. But if they hold, and hold nationally, they could have important policy implications.... If self-selection by guilty, marginally indigent defendants is driving a big part of this effectiveness difference, the remedy may simply be to tighten the mechanisms we use to determine indigency. This solution would not only reduce the outcome differences between public defenders and private defense lawyers, but it would also give taxpayers more bang for their public defender buck.
January 7, 2007
An intriguing deathly start to 2007
In my review of 2006 and preview of 2007 sentencing stories, the death penalty got plenty of attention. But, as detailed from posts listed below, the first week of 2007 was full of extraordinary death penalty developments (without even considering the fall-out from Saddam's execution):
- NJ commission urges abandoning the death penalty (with commentary here and here)
- Lethal injection news and notes and Lethal injection scrummages nationwide
- Supreme Court grants cert on capital mental illness issue
- Ohio's Gov-elect produces capital wondering
Though the New Jersey death penalty report garnered the most media attention, the intriguing comments from Ohio's incoming governor and the Supreme Court's cert grant in another capital case from Texas are the events most likely to significantly impact capital punishment administration and the number of executions this year.
To keep up with all the capital action, one should regularly surf over to Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project. Also, as I noted here at Law School Innovation, this coming semester I am teaching a course on the death penalty and will be experimenting with a class blog that I'll be discussing more in the weeks ahead.
Making prosecutors testify about capital charging
In recent posts on the New Jersey death penalty report here and here, I complained about the report's failure to explore how the death penalty impacts prosecutorial charging and bargaining practices. Interestingly, this interesting article details that Connecticut may be about to explore these issues through litigation:
Chief State's Attorney Kevin Kane and 12 state's attorneys — who were subpoenaed by defense lawyers for a convicted double murderer — must take the witness stand in Hartford Superior Court next month to face questions about how they decide when to seek the death penalty. That's because state Supreme Court Acting Chief Justice David M. Borden on Friday rejected an appeal by lawyers for the prosecutors, who are members of the executive branch, asking the high court to quash the subpoenas, which were issued by the judicial branch....
[Defense attorneys] Gold and Smith filed a motion asking [Judge] Mullarkey to impose a life sentence "because there are no standards to guide state's attorneys' discretion when deciding whether to seek a death sentence." In their motion, the public defenders argued that there "are no uniform standards" guiding state's attorneys. Such a "standardless system" means that the death penalty in Connecticut "is imposed arbitrarily and capriciously," they wrote. Further, Smith and Gold claimed, such "unbridled prosecutorial discretion" violates defendants' constitutional rights of due process and equal protection, and constitutes prohibited "cruel and unusual punishment because the lack of standards eliminates any rationality or consistency in sentencing."
To substantiate their claims, Gold and Smith asked Mullarkey in July to allow them to subpoena the state's attorneys and the chief state's attorney to question them about how they decide when to seek execution. Mullarkey agreed, but the state filed an appeal....