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June 21, 2007

Rita is here and...

Lyle Denniston is reporting here at SCOTUSblog that Rita is out and upholds a presumption of reasonableness for within-guideline sentences.  However, the vote count suggests the opinion may be very nuanced.  Here is the first report:

The Supreme Court ruled on Thursday that a federal criminal sentence within the Guidelines may be presumed to be reasonable when the case is on appeal. However, it said that such a presumption is not binding.  Although the Court was divided in some respects, the vote on the result was 8-1 with only Justice David H. Souter dissenting in Rita v. U.S. (06-5754).

A lot more to follow, of course.

MORE:  Here is Lyle's new paragraph describing the main opinion:

In key passages in Justice Stephen G. Breyer's main opinion, the Court said: "A non-binding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence.  Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone.  As far as the law is concerned, the judge could disregard the Guidelines and apply the same senence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the sentencing Commission, would warrant a higher sentence within the statutorily permissible range.  Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption."

I am now certain that one of the levels of hell involves trying to figure out what an important SCOTUS ruling says and means before being able to access the opinion itself.

June 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (5) | TrackBack

Anticipating Rita reactions

Whenever the Supreme Court hands down a ruling in Rita — and, gosh, I hope it's soon — I will be watching closely reactions from other federal sentencing participants.  Of course, the nature and swiftness of reactions will depend greatly on whether the Court in Rita ratifies the reasonableness status quo for within-guidelines or instead rejiggers the post-Booker landscape.  But, even without seeing the opinion, we can already anticipate how key actors will likely respond:

Of course, all this does not mean the outcome in Rita is inconsequential.  Rather, my main point is to highlight some structural realities that will shape Rita reactions no matter what the ruling.  (Also, adding to these status quo dynamics is the fact that SCOTUS will not drop other reasonableness review shoes until probably 2008 when it eventually rules in Gall and Kimbrough.)

Some recent related posts:

June 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (2) | TrackBack

June 20, 2007

The pace of executions picking up

If executions in fact deter homicides, we should all feel extra safe over the next week.  As detailed on this page, a half dozen executions may take place in four different states over the next six days.  If all six of these executions go forward as scheduled, there will have been a total of 29 executions in the US during the first half of 2007.  This would mean that the US will be on pace to have more executions in 2007 than it had in 2006.

Given that California, Florida, Missouri and North Carolina are all still struggling to get on with executions after lethal injection scrummages, it is somewhat remarkable that the pace of executions is remaining pretty steady.  Of course, this all is primarily a story about Texas justice, since the Lone Star State is responsible for nearly 2/3 of all executions so far in 2007.

Some recent related posts:

June 20, 2007 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

The sentencing transcript in Kimbrough

In this prior post, I discussed some of the issues (and linked the cert papers) related to the Supreme Court's cert grant last Monday in Kimbrough v. United States, No. 06-6330, the crack sentencing case.  I have since had a chance to review the transcript fromt the district court sentencing in Kimbrough, which I provide for downloading below.

In an effort to putting aside all the intricate legal issues related to Booker and 3553(a) and guideline provisions, I would like to read comments from folks after they review this transcript on the most basic and essential question: was the sentence given by Judge Raymond Jackson to Derrick Kimbrough on April 15, 2005 reasonable?

Download kimbrough_sentencing_transcript.pdf

Some recent related posts:

June 20, 2007 in Kimbrough reasonableness case | Permalink | Comments (7) | TrackBack

Sixth Circuit affirms below guideline involuntary manslaughter sentence

The Sixth Circuit this morning has two notable sentencing rulings today with US v. Kathman, No. 06-5669 (6th Cir. June 20, 2007) (available here), and US v. Garner, No. 05-4215 (6th Cir. June 20, 2007) (available here).  Garner simply confirms that Booker does not allow a district court to evade application of a statutory mandatory minimum, while Kathman affirms a below-guideline sentence by stressing that "the advisory nature of the guidelines provides greater discretion to the district court" after Booker.

Kathman is the more interesting read, in part because the defendant's crimes of conviction were "two counts of involuntary manslaughter resulting from an automobile accident in a national park that killed his two passengers."   Among many morals to be drawn from Kathman is don't drink and drive.

June 20, 2007 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

June 19, 2007

What are the odds Lewis Libby gets bail pending appeal from the DC Circuit?

This AP article details that Lewis Libby today submitted his application for bail pending appeal to the DC Circuit:

In a motion to the U.S. Court of Appeals for the District of Columbia Circuit, Libby argued that the ruling [denying bail] was inappropriate.  He said he has a good chance of having his conviction overturned on appeal and should not have to serve jail time while the court challenge plays out.

"The Bureau of Prisons will shortly designate a prison facility and direct Libby to report within a period of two to three weeks after designation," his attorneys wrote. "Accordingly, we respectfully ask that the court expedite action on this application."

Any predictions, dear readers, about his chances for getting bail from the DC Circuit?

June 19, 2007 in Libby sentencing | Permalink | Comments (18) | TrackBack

Meet the Beatles ... at sentencing

Thanks to CrimProf, I saw this amusing article, entitled "Judge cites 42 Beatles songs to teach beer thief a lesson," about a recent sentencing with a beat.  Here are the basics:

The judge sentencing a Beatles-loving beer thief quoted 42 of the band's song titles in his verdict.  Andrew McCormack, 20, was asked to recommend to a US court what his sentence should be for stealing beer.  He wrote: "Like the Beetles say, Let It Be."

But his cheeky quip did not impress Gregory Todd, a 56-year-old district court judge in Montana.  In a sentencing memorandum Judge Todd first corrected McCormack's misspelling and then gave the defendant a lesson in The Beatles discography.

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

For the ailing politician ... Incarcerex

Acf10 Strong and very amusing stuff here coming from the Drug Policy Alliance.  Be sure to check out the Incarcerex video.  (Hat tip: The Real Costs of Prisons Weblog)

June 19, 2007 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Staging a violent crime Hamlet without the DOJ prince

As discussed here and here, Representative Bobby Scott, Chairman of the House Subcommittee on Crime, Terrorism and Homeland Security, has planned a "Summit on Crime Policy" for later this week entitled "Violent Crime — Prevention and Solutions from the Experts."  A helpful reader sent me a full list of panels and speakers for this event (which I am calling a "Sentencing Lawapalooza").  The list of speakers can be downloaded below, and here the four planned panels:

Download crime_summit_participants.doc

The list of speakers is amazing; more than three dozen leading voices from a broad array of organizations are slated to sharing their insights at this summit.

And yet, as the title of this post indicates, the list of speakers suggests that a very big dog is not going to bark at the summit.  Missing from the event is any apparent official Justice Department representative.  And this omission is especially notable given that, as detailed in this post, Attorney General Gonzales just earlier this month announced a set of new DOJ initiatives for combating violent crime.

I am generally disinclined to assert that DC is a dysfunctional town.  But it is hard to have too much faith in the ways of Washington if indeed a major crime summit goes forward without serious involvement by the Department of Justice.

June 19, 2007 in Who Sentences? | Permalink | Comments (2) | TrackBack

A coming reasonableness clusterf#@k? Ruminations while waiting for Rita

SCOTUS guru Tom Goldstein is now predicting here that Justice Alito is writing the opinion for the Court in Rita, after having previously predicted that Justice Stevens and then that Justice Breyer was in charge of Rita.  I think all of Tom's predictions may be right because, as I wait impatiently for a ruling on reasonableness from the Court, I am now thinking we could get many opinions in Rita.  Let me detail my latest (wholly speculative) ruminations on Rita:

1.  The Sixth Amendment's impact: Given the Court's recent ruling in Cunningham and the affinity shown by Justices Stevens, Scalia and Thomas for the Sixth Amendment jury trial right, there likely will be at least one Rita opinion stressing the impact and import of the Sixth Amendment in post-Booker sentencing.

2.  The SRA's impact: Given the remedial opinion in Booker and the Court's unanimous work a decade ago in Koon, there likely will be at least one Rita opinion stressing the impact and import of the statutory provisions of the Sentencing Reform Act (and especially 3553(a)) in post-Booker sentencing.

3.  The USSC's impact: Given the remedial opinion in Booker and also the the affinity shown by Justices Breyer and Alito for the US Sentencing Commission, there likely will be at least one Rita opinion stressing the impact and import of the guidelines in post-Booker sentencing.

Perhaps one impressively comprehensive opinion for the Court can cover all this ground.  But the disaffinity of Justices Kennedy and Breyer for the Sixth Amendment jury trial right suggests they won't join an opinion praising Blakely's view of jury trial rights.  And the apparent disaffinity of Justice Scalia for the USSC (and for Justice Breyer?) suggests he won't join an opinion praising the guidelines.

Throw into this mix the two new Justices — whose contrasting votes in Cunningham suggest they look at these issues and the Court's recent sentencing jurisprudence quite differently — and we could have a real mess on our hands with perhaps multiple plurality opinions in Rita

Indeed, the Court's cert grants in two new sentencing cases set for argument next term perhaps makes the most sense if the Justices have been struggling with a messy set of opinions in Rita.   Perhaps the Justices realize that their work in Rita will raise as many questions as it answers, and thus they want and will need another big bite at the post-Booker sentencing apple to provide guidance to lower courts still trying to sort through the post-Booker world.

Some recent related posts:

June 19, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (1) | TrackBack

If you enjoy long split capital habeas circuit rulings...

you should be sure to check out today's work by the Sixth Circuit in Cone v. Bell, No. 99-5279 (6th Cir. June 19, 2007) (available here), and yesterday's work by the Seventh Circuit in Stevens v. McBride, No. 05-1442 (7th Cir. June 18, 2007) (available here).

As I have said before, when I read these long capital habeas opinions, I cannot help but wish that federal circuit judges would regularly give as much attention to federal drug offenders directly appealing their long imprisonment sentences as they give to state murderers appealing their death sentences.

June 19, 2007 in Death Penalty Reforms | Permalink | Comments (7) | TrackBack

Another Enron defendant sentenced

As detailed in this AP article, a " key prosecution witnesses whose testimony helped convict former Enron CEO Jeffrey Skilling and company founder Kenneth Lay was sentenced Monday to 27 months in prison."  Here are more details:

It's been nearly three years since Kenneth Rice, 48, the former chief of Enron Corp.'s high-speed Internet unit, pleaded guilty to securities fraud and agreed to help federal prosecutors on other cases related to the energy giant's collapse.  His sentencing was postponed as he cooperated with prosecutors.

Rice becomes the ninth ex-Enron executive to receive a jail term after pleading guilty to crimes.  Before sentencing, Rice apologized for his role in the corporate scandal that wiped out thousands of jobs, more than $60 billion in market value and more than $2 billion in pension plans. "I'm sorry. I wasn't raised that way and I'm ashamed of that," he said, his voice breaking with emotion. "I'm committed to turning my life around."...

Assistant U.S. Attorney Ben Campbell said he was satisfied with the sentence.  He had noted to the court Rice's "candid testimony" in the trial of Skilling and Lay, who were convicted last year for their roles in the company's collapse.  In addition to that testimony, Rice was a key witness for eight days at the trial of five former colleagues at the Internet unit.  Rice also met 63 times with prosecutors.  One of Rice's attorneys, Dan Cogdell, said he had never seen such cooperation by a witness in his 25 years of practicing law.  He said Rice had unquestionably accepted responsibility for his role in the fraud and had cooperated with prosecutors since the start of their investigation.

June 19, 2007 in Enron sentencing | Permalink | Comments (1) | TrackBack

June 18, 2007

Tenth Circuit approves federal DNA collections from convicts

Like other circuit to have considered the issue, the Tenth Circuit today in Banks vs. United States, No. 06-5068 (10th Cir. June 18, 2007) (available here), rejects a challenge to a federal DNA collection statute.  Here is how the long opinion in Banks begins:

Government collection of deoxyribonucleic acid ("DNA") samples has caused considerable controversy. From State proposals to expand DNA extraction to misdemeanants, to federal DNA statutes designed to assist police in solving crimes, detractors allude to a police state reminiscent of George Orwell's dystopia portrayed in 1984. In this case, the challenged federal statute, The DNA Analysis Backlog Elimination Act of 2000, requires convicted felons to submit a DNA sample for inclusion in a national database.  The database is used for law enforcement identification purposes; in judicial proceedings if otherwise admissible; for criminal-defense purposes; and for a population-statistic database for identification research, or for quality-control purposes, if personallyidentifiable information is removed.

We must decide whether the Fourth Amendment permits compulsory DNA testing of the Plaintiffs, non-violent felony offenders subject to the Act, in the absence of individualized suspicion that they have committed additional crimes.  Applying a totality-of-the-circumstances test, we hold that the Act is constitutional because the Government's interest in extracting DNA from the Plaintiffs outweighs their interests in avoiding the intrusions upon their privacy.

June 18, 2007 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

New Jersey Supreme Court clarifies Atkins procedures

in Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court declared that the Eighth Amendment no longer permitted the execution of persons suffering from mental retardation, but ever so thoughtfully left to the states "the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."   The sates have been all over the map on this issue, and New Jersey had an interesting follow up ruling today in State v. Jimenez, No. A-75-2006 (NJ June 18, 2007) (available here).  Here is how it starts:

We granted defendant's motion to clarify our opinion in State v. Jimenez, 188 N.J. 390 (2006) (Jimenez II), in which we adopted a framework for adjudicating Atkins claims.  We held that defendant had the burden of proving mental retardation by a preponderance of the evidence to the jury at a hearing after the guilt phase and prior to the penalty phase.  Jimenez II, supra, 188 N.J. at 408.  However, we did not express a view on whether there must be a unanimous jury finding or whether only one juror need reach that conclusion. As a consequence, defendant sought clarification of that issue.  Because the finding of mental retardation is like a dispositive mitigating factor, we hold that if a single juror finds defendant has met his burden of proving mental retardation by a preponderance of the evidence, defendant is not eligible to receive a penalty of death.

Some related posts:

June 18, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Anyone planning to attend this week's House "Summit on Crime Policy"?

I noted briefly here that Representative Bobby Scott, Chairman of the House Subcommittee on Crime, Terrorism and Homeland Security, has planned a "Summit on Crime Policy" for later this week entitled "Violent Crime — Prevention and Solutions from the Experts."  Thanks to the Sentencing Project, I found this flyer providing more details about the summit.  Here are the particulars:

Summit: 8:30am-1:30pm in 2237 Rayburn House Office Building

Throughout the day, prominent researchers and representatives of leading national crime policy organizations working in developing and shaping crime policy will give brief presentations on their priorities for the 110th Congress.  Topics will include:

  • Post-incarceration reentry
  • Juvenile justice reform
  • Gang violence and prevention
  • Mandatory minimums and sentencing reform
  • Alternatives to the criminal justice system and sentencing
  • Habeas Corpus Reform and Guantanamo Bay
  • Death penalty reform and DNA exoneration
  • Racial profiling and racial aspects of criminal justice policy
  • Law enforcement and the criminal justice system

I would be grateful for reports from the field from anyone planning to attend this interesting sounding "Sentencing Lawapalooza."  And I would be eager to post any prepared testimony or materials that folks might send my way.

June 18, 2007 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

Ninth Circuit upholds enhancement based on conduct during Nixon Administration

Anyone who thinks the Ninth Circuit is a maverick court that shows undue sympathy to criminal defendants ought to be sure to read its work today in US v. Garner, No. 06-10417 (9th Cir. June 18, 2007) (available here). Here is the opening paragraph:

This appeal tests the temporal and relational limits of prior conduct as a sentencing enhancement.  In it, James Garner ("Garner"), sentenced to 262 months following his guilty plea conviction for two counts of attempted receipt of visual depictions of a minor engaged in sexually explicit conduct and six counts of distribution of visual depictions of a minor engaged in sexually explicit conduct, all in violation of 18 U.S.C. § 2252(a)(2), contends the district court erred by using thirty-five-year-old conduct to enhance his sentence and that his resulting sentence is unreasonable.  We affirm.

June 18, 2007 in Booker in the Circuits | Permalink | Comments (10) | TrackBack

Intriguing capital ruling from New Mexico

The Death Penalty Information Center has an interesting report here on a state court ruling that essentially deems New Mexico's death penalty practices unconstitutional.  Here the DPIC's report:

Ruling in a pre-trial matter in New Mexico, Judge Timothy Garcia of Santa Fe County's First Judicial District Court held the state's death penalty law to be unconstitutional based on a study by the Capital Jury Project.  The Project's research in 14 states had found that jurors often do not follow the law in making their sentencing decision. In particular, the judge found that the jurors' propensity toward making their sentencing decision during the guilt-innocence phase of the trial was "an arbitrary and capricious violation of the United States Constitution and the New Mexico Constitution."

The judge said that he would allow the death penalty trial to go ahead provided separate juries were selected for the guilt-innocence phase and for the sentencing phase, even though that change was not provided for under New Mexico law. The state elected to forgo seeking the death penalty entirely, thereby putting off a legal confrontation on this issue. (New Mexico v. Dominguez and Good, No. D-0101-CR-200400521 and 522, Order, June 8, 2007).

I would be grateful to hear more from readers about this notable ruling (which I've not seen).  Judge Garcia's ruling could have profound national implications if other court's were moved by his insights and conclusion.

UPDATE:  Thanks to Karl at Capital Defense Weekly, you can now read the Dominguez and Good opinions at this link.

June 18, 2007 in Death Penalty Reforms | Permalink | Comments (14) | TrackBack

Still no sentencing from SCOTUS

The always helpful SCOTUSblog has the news on today's rulings from the Supreme Court, though it appears again that there is no sentencing action within today's three opinions and one cert grant.  Criminal justice fans will, however, want to check out the Court's only major Fourth Amendment case that was handed out today.  Here's the early SCOTUSblog report:

[T]he Court ruled in Brendlin v. California (06-8120) that a passenger in a car stopped on the road by a police officer has a right to challenge the legality of the stop, under the Fourth Amendment. The Court was unanimous, with Justice David H. Souter writing.

I believe the next decision day is this Thursday (June 21), and the Justices have only about a dozen cases left to resolve.  By Thursday, my own personal Rita-meter might indicate that the odds of a ruling are now getting very high, although one never knows.  (I have some more speculations about what might be going on in Rita, which I'll share in the days ahead.)

UPDATE:  Lyle Denniston's fuller report on today's SCOTUS action now notes these two notable cert denials in capital cases:

Among cases denied review on Monday was Barbour v. Allen (06-10605), a case testing whether a state has a constitutional duty to provide legal aid to poor inmates on death row, to help them challenge convictions and sentences in state court after the verdict is final....

The Court also declined to return -- for the ninth time -- to a review of the death penalty procedures that Texas actually stopped using in 1991. The case was Quarterman v. Nelson (06-1254), in which the Fifth Circuit Court essentially cast aside much of its modern jurisprudence on the role that mitigating evidence must be allowed to have in capital sentencing proceedings.

June 18, 2007 in Who Sentences? | Permalink | Comments (5) | TrackBack

Costs cause states to pursue prison alternatives

7994_prisonbars This new article from Stateline.org, entitled " States seek alternatives to more prisons," highlights how prison overcrowding problems across the country are creating the necessity to invent new types of responses to crime.  Here are excerpts from the article (which includes a cool graphic reflecting this detailed analysis of state-by-state increases in corrections costs):

With swelling prison populations cutting into state budgets, lawmakers are exploring ways to ease overcrowding beyond building expensive new correctional facilities. Though the construction of prisons continues as states struggle to provide enough beds for those behind bars, legislators increasingly are looking at other ways to free up space and save money, including expanded programs to help prevent offenders from being incarcerated again, earlier release dates for low-risk inmates and sentencing revisions.

Criminal justice analysts point to Kansas and Texas as recent innovators. Both states are putting off building new prisons, focusing instead on rehabilitation and recidivism. At the same time, a new $7.7 billion prison spending plan in California — where overcrowding last year forced Gov. Arnold Schwarzenegger (R) to declare a state of emergency — has met with skepticism.  Critics call the plan "prison expansion, not prison reform" and say the initiative relies on impractical fixes such as shipping inmates out of state.

State spending on prisons surged 10 percent nationally last fiscal year (see graphic) and growing inmate populations played a lead role in those costs, according to an analysis by the National Conference of State Legislatures. Corrections trails only education and health care in swallowing state dollars, and experts say lawmakers are responding to the budgetary pressures by trying more cost-effective approaches.

Some related posts:

June 18, 2007 in Criminal Sentences Alternatives, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

June 17, 2007

Might Congress move ahead with sound sentencing reforms?

In the two-plus years since Booker, Congress has been remarkable quiet on the sentencing front.  Though there have been proposals for large and small sentencing reform from all quarters, Congress has shown relatively little interest in radically changing (or even seriously studying) post-Booker sentencing realities.

As documented here and here at FAMM, however, some members of Congress now appear interested in exploring possible sentencing reforms.  Specifically, later this month brings these two notable congressional events (as described by FAMM):

June 17, 2007 in Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (2) | TrackBack