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May 19, 2007

New cert petition on prior conviction exception to Apprendi

As detailed in posts here and here and here, I have long thought it would be only a matter of time before the Supreme Court would have to take up a case addressing head-on the continued validity and precise scope of the Apprendi-Blakely "prior conviction exception."  And, though the Court has long avoided a long-established split concerning this exception and juvenile adjudications, a new cert petition filed by SCOTUS gurus Jeff Fisher and Tom Goldstein would seem to present the Court with a great opportunity to return to these important issues.

The new cert petition comes in Sasouvong v. Washington and can be downloaded below. Here is the sole questions presented and the first paragraph of the statement:

QP: Whether a criminal defendant's right to a jury trial under the Sixth and Fourteenth Amendments is violated when a prior juvenile adjudication – not itself decided by a jury – is used by a judge to impose a longer sentence than otherwise would be permissible.

Statement: This case presents a pressing issue concerning the administration of criminal justice, over which the federal and state courts across the country are openly and deeply split.  The question is whether a court may use a prior nonjury juvenile adjudication to impose a longer sentence than otherwise would be permissible.  Acknowledging the deep divergence of authority on the issue, a divided Washington Supreme Court has held that a court may do so....

Download sasouvong_petition.pdf

May 19, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (5) | TrackBack

Two great SCOTUS reads as we wait...

Thanks to How Appealing, I see two great reads for SCOTUS watchers:

Of course, the big SCOTUS buzz in my brain concerns the possibility that we will get a ruling in Claiborne and Rita soon.  I doubt they will come as early as this Monday.  But these rulings are surely now only weeks away (if not days).

May 19, 2007 in Who Sentences? | Permalink | Comments (0) | TrackBack

Criminal law blog survey

Jamie Spencer at Austin Criminal Defense Blog is taking a survey here by asking readers to send him a list of their favorite criminal-law-related blogs.  Suggested categories include blogs written by defense lawyers, prosecutors, professors and judges, with both established and new law bloggers encouraged to participate.

May 19, 2007 in On blogging | Permalink | Comments (0) | TrackBack

Who should be the new leadership at DOJ?

Legal Times has this interesting article entitled "At DOJ, a Hard Job to Fill: Whoever follows in Paul McNulty's footsteps at Justice has some unwelcome challenges ahead."  Here is how it begins:

Few in Washington have envied Paul McNulty over the past three months.  But with the deputy attorney general's resignation last week amid the scandal over the firings of at least eight U.S. attorneys, there’s one person whose position might be even less desirable: McNulty's yet-to-be-named successor. "I'd rather trade places with Jose Padilla," jokes Viet Dinh, a former senior Justice official under then-Attorney General John Ashcroft.

Of course, the position of Attorney General might also need to be filled if more and more Senators in his own party keep calling for his resignation or if impeachment talks gets real.

So, dear readers, how about offering some suggestions for the top two spots at Justice?  I think Viet Dinh would be a good choice, and of course former Deputy AGs like Jim Comey and Larry Thompson come to mind.  Any other suggestions?

May 19, 2007 | Permalink | Comments (0) | TrackBack

May 18, 2007

Guideline sentences looking reasonable to the Eighth Circuit

In notable contrast to the recent trend of sentencing wins for defendants that are unpublished (examples come from from the Fourth and Fifth and Tenth and Eleventh Circuits), the Eighth Circuit today publishes two rulings in which panels affirm within-guideline sentence.  My friends cut-and-paste allow a quick summary from the Eighth Circuit's official opinion page:

062965P.pdf   05/18/2007  United States  v.  Scott K. Goldsmith
   U.S. Court of Appeals Case No:  06-2965
   U.S. District Court for the District of Minnesota - St. Paul   
   [PUBLISHED] [Shepherd, Author, with Riley and Melloy, Circuit Judges]
   Criminal case - Sentencing. District court was aware of its authority to grant departure based on defendant's mental health, and its refusal to do so is unreviewable on appeal; sentence was not unreasonable.

063161P.pdf   05/18/2007  USA  v.  S. Mosqueda-Estevaz
   U.S. Court of Appeals Case No:  06-3161
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Melloy, Author, with Bowman and Gruender, Circuit Judges]
   Criminal case - Sentencing Guidelines. Sentence is not unreasonable.

Of course this is really just a dog-bites-man story, since more than 99% of all within guideline sentences get affirmed on appeal.  But both rulings provide yet further examples of the general failure of most circuit courts to thoughtfully consider whether within-guideline sentences are truly reasonable in light of the substantive provisions of 3553(a).  Neither ruling even mentions to parsimony mandate of 3553(a).

Rulings like these make me very hopeful (though still not especially optimistic) that the Supreme Court will significantly alter the look of reasonableness review through its rulings in Claiborne and Rita.

May 18, 2007 in Booker in the Circuits | Permalink | Comments (6) | TrackBack

Around the blogosphere

Aided by a lunch break during this very interesting research conference, I have seen a number of new posts worth checking out at Crime and Consequences and Crime & Federalism and Corrections Sentencing and Ohio Death Penalty Information.

May 18, 2007 | Permalink | Comments (0) | TrackBack

Important (but unpublished!) Tenth Circuit reversal of within-guideline sentence

A favorite reader alerted me to an unpublished sentencing opinion from the Tenth Circuit in US v. Mahan, No. 05-1518 (10th Cir. May 16, 2007) (available here), which reverses a within guideline sentence because it was procedurally unreasonable.  Here is the heart of a significant (even though unpublished) ruling:

District courts must consider the 18 U.S.C. § 3553(a) factors in applying a sentence that is "sufficient, but not greater than necessary" to fulfill the aims of those factors. Among other factors, § 3553(a)(1) requires the court to consider "the nature and circumstances of the offense" when developing an appropriate sentence.  Following Mr. Mahan's description of how and why he came to possess the gun, the district court said "the reasons why you had the weapon ... aren't something the Court can consider," because possession of a firearm by a felon is a strict liability offense.  The district court further labeled as "extraneous factors" Mr. Mahan's reasons for possessing the gun and acknowledged such information would have no bearing on its determination of Mr. Mahan's sentence.

The district court was correct that mens rea is not relevant in determining if an individual is guilty of a strict liability crime.  However, in determining the appropriate sentence for one guilty of such a crime, the court must consider the factors set forth in § 3553(a), including the nature and circumstances of the offense.  We find nothing in § 3553(a) to suggest that the "circumstances of the offense" factor exclusively applies to crimes requiring a mens rea or that this factor is to be specially excluded when arriving at a sentence for a strict liability crime.  In fact, we have previously stated that the district court is required to consider all § 3553(a) factors when sentencing an individual for the same strict liability crime presented in this case.

May 18, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Should AG Gonzales be impeached?

My colleague and FSR co-editor Frank Bowman has been calling for Congress to conclude its investigation of the US Attorney firings by impeaching AG Alberto Gonzales.  Writing from Slate, Frank now has this essay entitled "The Icing Is Iglesias: His firing is reason alone for Congress to impeach Gonzales."  Here is how it begins:

Congress could and should impeach Alberto Gonzales.  One ground for doing so, as I have previously suggested, is the attorney general's amnesiac prevarication in his testimony before the Senate and the House. But if Congress wants more, it need look no further than the firing of David Iglesias, former U.S. attorney in New Mexico.  The evidence uncovered in Gonzales' Senate and House testimony demonstrates that he fired Iglesias not because of a policy disagreement or a management failure, but because Iglesias would not misuse the power of the Department of Justice in the service of the Republican Party.  To fire a U.S. attorney for refusing to abuse his power is the essence of an impeachable offense.

May 18, 2007 in Who Sentences? | Permalink | Comments (10) | TrackBack

May 17, 2007

Third Circuit (unthinkingly?) applies pre-Booker ex post facto rules

In my view, the implications of Booker for pre-Booker ex post facto doctrines has been woefully under-examined.  The Seventh Circuit has given this important issue fitting attention in its Demaree opinion (details here), but other district and circuit courts (improperly) have taken for granted that Booker does not change the pre-Booker rules.

A decision today from the Third Circuit, US v. Wood, 06-1372 (3d Cir. May 17, 2007) (available here), provides the latest troublesome example of this dynamic.  The Wood panel, citing only pre-Booker precedents, decides that it was plain error for the district court, sentencing under so-called "advisory guidelines" in January 2006, to consider an enhancement that had been amended in 2004 because the defendant's crime occurred before the amendment.  But, as the Demaree opinion effectively explains, this only makes sense if the guidelines have the force of law rather than just serving as advice.

I doubt the Claiborne or Rita opinions will address this intricate little issue, but for me it provides yet another example of how most courts and litigants have never fully come to terms with the real significance and import of Booker.

May 17, 2007 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

Take me out to the ball game....

A gorgeous day for baseball in Chicago brought a good result for the White Sox, and I had a grand time sitting in the afternoon sun.  The Yankees looked even more pathetic in person than in box scores; it may be time for Yankee fans (like Justice Scalia) to get on the fire Torre bandwagon.  (Notably, the other diamond battle between the first and second cities had an eventful finish.)

To maintain the "when in Rome" attitude, I'll be pulling hard for the Chicago Bulls to force a Game 7 with a win tonight in their series with the Detroit Pistons.  Nice sports day to be in the Windy City.

May 17, 2007 | Permalink | Comments (0) | TrackBack

To Chicago to go "Back to the Future of Legal Research"

Back_to_the_future I am about to head to Chicago to participate tomorrow in this conference at the Chicago-Kent College of Law entitled "Back to the Future of Legal Research."  The very interesting conference schedule can be found at this link, and I am on an afternoon panel titled "Web 2.0: New Tools for Doing & Teaching Legal Research."  I am heading to Chicago a bit early with tentative plans to indulge my inner Howard Bashman by attending the final game of this big-city series.  Blogging likely will be light over the next two days.

May 17, 2007 in On blogging | Permalink | Comments (0) | TrackBack

State constitutional restrictions on non-capital sentences

This article from my local Columbus Dispatch discusses the Ohio Supreme Court's decision to hear an appeal from a "man sentenced to 134 years in prison for three home-invasion robberies [arguing] that his sentence was cruel and unusual."  Because so few non-capital sentences have been found unconstitutional under the Supreme Court's Eighth Amendment jurisprudence, the defendant in this case should not get too excited about his chances.  However, the Ohio Supreme Court has a history of thoughtfully applying its own state constitutional standards differently than the federal constitutional standards.

I have long thought that state constitutional limits on punishment ought to be applied much differently (and perhaps much more expansively) than the Eighth Amendment.  I know that many state have, in death penalty cases, interpreted state constitutional provisions dynamically, but there are far fewer examples of this in non-capital cases.  Do readers have any favorite examples?

May 17, 2007 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Viewing a prison crisis as a human rights abuse

I am please to see that Jonathan Simon is guest-blogging at PrawfsBlawg, where he gets started with this great post entitled "Golden State Guantanamo."  Here is the heart of his start:

One of the least covered and most important areas of California's socio-legal landscape is its bloated and inhumane prison system that now holds approximately 80,000 prisoners more than the 100,000 its 30+ prisons were designed to house. While Guantanamo has rightly been a subject of constant attention in the main stream media and the legal blogosphere, California's prison crisis constitutes a human rights abuse of equal if not greater significance.

Simon has this new book entitled "Governing through Crime," and this blog that goes by the same name.  Simon is great reading in all forms.

May 17, 2007 in Scope of Imprisonment | Permalink | Comments (4) | TrackBack

May 16, 2007

SCOTUS stats from SCOTUSblog

As detailed here, SCOTUSblog has an exciting new feature: "each week from now until the end of the Term, we are going to make available a comprehensive 'Stat Pack' with information about cases yet to be decided this Term along with the Court's docket for OT07."  The first "Stat Pack" can be accessed here, and it lists Claiborne and Rita among the highest priority cases outstanding.

If SCOTUSblog would just add a few more fun stats (e.g., words per opinion, law review cites per opinion author), it might become even easier to start the SCOTUS fantasy league I have long dreamed about.

UPDATE:  Speaking of stats, this newspaper article dissect SCOTUS oral argument transcripts and reports total words spoken this Term at oral argument.  Not surprisingly, Justices Breyer and Scalia are in lead.

May 16, 2007 in Who Sentences? | Permalink | Comments (0) | TrackBack

Intriguing state-federal drug sentencing realities

The US Sentencing Commission's new crack report (basics here, reactions here) is fascinating (and also mind-numbing) is so many ways.  Especially intriguing is Chapter 5, which focuses on state sentencing realities and has a final section on the interaction of federal prosecutorial decisions and state penalties.  That section begins with these insights:

Federal law enforcement and judicial resources are too limited to process all drug trafficking offenses at the federal level. Only a small minority of all drug offenses are prosecuted federally.  During the last decade, there have been between one and one and one-half million arrests for drug violations annually, and state courts have imposed sentence for about one-third of a million drug convictions annually.  By contrast, 25,013 federal offenders were sentenced under the primary drug trafficking guideline in fiscal year 2006.   In fact, one of the stated goals of the 1986 Act was to "give greater direction to the DEA and the U.S. Attorneys on how to focus scarce law enforcement resources."

Because the states generally have not adopted the federal penalty structure for cocaine offenders, the decision whether to prosecute at the federal or state level can have an especially significant effect on the ultimate sentence imposed on an individual crack cocaine offender.  Differences in federal prosecutorial practices nationwide occur for a number of reasons.  For example, federal resources in a specific jurisdiction may be prioritized toward a specific drug type that is particularly problematic for that jurisdiction.  The Department of Justice reports that the comparative laws in a jurisdiction also play an important role in determining whether a particular case is brought in federal or state court.

The last sentence of this quote is especially notable given that the Justice Department regularly argues against district judges considering comparative state realities at federal sentencing.  Apparently DOJ thinks it is "important" for federal prosecutors to consider comparative state dynamics (behind closed doors and without any kind of judicial review), and yet argues that it is wholly improper for federal sentencing judges to even consider comparative state dynamics (on the record and subject to judicial review).

May 16, 2007 in New USSC crack guidelines and report | Permalink | Comments (5) | TrackBack

Another indication residency restrictions imperil public safety

Thanks to Corrections Sentencing, I saw this news article from Oklahoma in which state law enforcement types are advocating against sex offender residency restrictions because they drive sex offenders underground.  Here are the basics:

A law that was intended to restrict where sex offenders live is driving them underground, Tulsa police say their records show. About two years ago, the number of sex offenders registered in Tulsa peaked at 540.  Now, Tulsa has 372 offenders registered, said Sgt. Gary Stansill, supervisor of the Police Department's Sex Crimes Unit.

May 16, 2007 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

When will SCOTUS address Booker retroactivity?

Amidst lots of thoughtful sentencing work by Sixth Circuit judges recently (examples here and here), Judge Martin's dissent in Valentine v. US, No. 04-2116 (6th Cir. May 14, 2007) (available here) stands out as an extraordinary tour de force making the case for Booker retroactivity. 

As highlighted before, Judge Martin effectively documents that the Teague rule for retroactivity is driven in part by federalism and comity concerns not fully applicable to federal criminal cases.  And this closing flourish from Judge Martin's opinion reminds me why the the Apprendi-Blakely five (or Cunningham six) might possibly be moved by arguments for Booker retroactivity:

[T]he Apprendi line of cases means much more than how long the government can send a defendant to jail — it speaks volumes about how we, as a democratic society, are able to follow the strictures that represent the very backbone of our legal and Constitutional system.  Apprendi and its offspring — Blakely and Booker — recognize a critical, constitutionally mandated check on the sentencing process, through the grounding of sentencing determinations in facts that have been proved to the jury beyond a reasonable doubt.  Our modern federal judiciary has been reluctant to recognize this Sixth Amendment limitation, probably due to the primacy of the mandatory sentencing guidelines that has been ingrained in our approach to sentencing for seventeen years.  Although this is an innate and natural way for anyone to think, federal judges included, our personal experience over seventeen years clearly must take a backseat to the fundamental guarantees of the centuries-old Bill of Rights, with the benefit of the Supreme Court's reinvigoration of these values through Apprendi and its progeny (i.e. Booker).

For various reasons, the Valentine case appears to present a particularly good vehicle for the Supreme Court to consider Booker retroactivity issues.  I hope the defendants in Valentine will seek cert, and I hope the Justices and their clerks recognize that these issues merit a place on the court's ever-shrinking docket.

May 16, 2007 in Apprendi / Blakely Retroactivity | Permalink | Comments (1) | TrackBack

More reactions to the USSC crack report

Public policy groups that have long assailed harsh crack sentencing terms have issued press releases in response to the US Sentencing Commission new report on federal cocaine sentencing (basics here):

The current sentencing structure has had a disproportionate and unfair impact on African-American and low income communities," said Caroline Fredrickson, director of the ACLU Washington Legislative Office, "and we’re encouraged that the U.S. Sentencing Commission has once again acknowledged this fact....  We urge Congress to put aside politics and act now to fix this discriminatory federal drug sentencing policy."

These reactions are not surprising or especially noteworthy.  For the future of federal drug sentencing, it will be much more important how policymakers and courts, rather than long-time advocates, react to the report.  On that front, I was very encouraged by this effective NPR piece on the new USSC report, which includes this quote from Republican Senator Jeff Sessions:

"It's past time [to reduce the disparity between crack and powder cocaine sentences] actually," Sessions says.  "Because the penalties on crack cocaine are extraordinarily heavy — too heavy to be justified as public policy."  Sessions said his colleagues should be open to reducing penalties downward when the sentencing commission recommends it.

UPDATE:  I just saw a copy of an article on the USSC report in the Daily Journal, and it has these additional reactions from key players:

Sen. Patrick J. Leahy, D-Vt., chairman of the Senate Judiciary Committee, welcomed the report's findings Tuesday, describing them as "an important first step" in correcting the disparity. "For far too long, the federal crack/powder sentencing laws have created an injustice in our nation," he said. Leahy said he hopes that federal prosecutors will focus more on drug kingpins....

      The Justice Department historically has opposed making changes to the sentencing guidelines.  Justice Department spokesman Bryan Sierra said the agency is "willing to discuss the disparity in the ratio for sentencing between crack and powder cocaine," but he added that the department believes that "it should be done in the broader context of sentencing reform."

May 16, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Coverage of the new California execution protocol

How Appealing has collected here all the major media coverage of California's new lethal injection protocol (basics here).  These snippets from this Los Angeles Times article highlights the practical realities of these new developments:

On Tuesday, Gov. Arnold Schwarzenegger's legal affairs secretary, Andrea L. Hoch, and James Tilton, director of the California Department of Corrections and Rehabilitation, said the new protocol addressed all the issues U.S. District Judge Jeremy Fogel raised in finding that the state's previous procedures violated the constitutional ban on cruel and unusual punishment.  And Schwarzenegger issued a statement saying, "I am committed to doing whatever it takes to ensure that the lethal injection process is constitutional so the will of the people is upheld."

But lawyers for Michael Morales, the condemned killer whose challenge to lethal injection led to Fogel's ruling, made it clear they will challenge the new protocol in court....

Judge Fogel has scheduled a June 1 status conference in the Morales case.  It's unclear when the judge will rule on the state's plan, and until he does, there will be no executions in California.

I might add that, even if Judge Fogel approves the state's new protocol, this issue will surely come before the Ninth Circuit.  I would be shocked if there is an execution in California this year (or next for that matter) because of the lethal injection litigation.

May 16, 2007 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

An initial reaction to the USSC crack report

Fellow sentencing guru Mark Osler sent via e-mail this first-cut reaction to the Sentencing Commission new cocaine report (basics here):

A federal defender, one of the smartest people I know in sentencing, called me this afternoon to talk about the proposed crack guideline amendments.  He got my voice mail, and left this provocative message: "What's going on?! These things are all over the place!"

He's right, and the Sentencing Commission's report on "Cocaine and Federal Sentencing Policy" (released about the same time as that call) does not do much to clear things up.  The USSC's report is chock-full of great data and analysis.  However, when the rubber hits the road, the Commission makes just three recommendations to Congress, on page 8: First, increase the amount needed to trigger mandatory minimums for crack; second, repeal the mandatory minimum for simple possession; and third, don't solve the problem by lowering the thresholds for powder cocaine which trigger mandatory minimums.

I'm all for these recommendations.  However, they leave open a key question: If we leave behind the 100-to-1 ratio, what will take its place?  This crucial question is more complex than it may at first appear — what is at issue is not just what other ratio we should employ, but whether we should tie crack sentencing to powder cocaine at all. 

Which brings us back to the call I received from my friend the public defender.  He was very happy that the proposed guidelines lowered the crack ranges, but noticed that they were no longer tied to any ratio at all relative to powder cocaine.  For example, at level 28 of those proposed guidelines, the ratio is 17.5-to-1, at level 26 it is 25-to-1, and at level 24 it shoots up to 80-to-1.  Obviously, the sentencing commission is comfortable not just with adjusting the ratio, but with throwing out the idea of a ratio altogether.  In keeping with this new outlook, the key recommendations of the new report to Congress do not suggest 20-to-1 or any other ratio to direct Congressional reforms, unlike the 2002 report.

It is a brave new world, if we might be free not only from the 100-to-1 ratio, but the idea of ratios controlling the way we think about crack sentencing.

May 16, 2007 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack