January 16, 2007
A quick review of all the circuit action
I mentioned here that the circuits were going wild with sentencing rulings today. Here are the particulars:
Third Circuit: US v. Walker, No. 05-3792 (3d Cir. Jan 16, 2007) (available here) (affirming 65-year sentence; 55 based on mandatory-minimum gun specs)
Fourth Circuit: US v. Tucker, No. 06-4122 (4th Cir. Jan 16, 2007) (available here) (reversing (!) an upward variance because its extend was unreasonable)
Fifth Circuit: US v. Elizondo, No. 06-10131 (5th Cir. Jan 15, 2007) (available here) (reversing after an improper post-Booker resentencing)
Eighth Circuit: US v. Tjaden, No. 06-1333 (8th Cir. Jan 16, 2007) (available here) (affirming significant upward variance based on post-plea conduct)
Ninth Circuit: US v. Ressam, No. 05-30422 (9th Cir. Jan 16, 2007) (available here) (majority dodges sentencing issue while remanding because "the law applicable to sentencing is in flux")
Though the Ninth Circuit's work in Ressam will surely garner the most attention (mostly for non-sentencing reasons), the true fan of Booker should be most interested in the Fourth Circuit's work in Tucker and the true fan of Blakely should be most depressed by the Eighth Circuit's work in Tjaden.
Of course, reader commentary on all these developments is highly encouraged!
UPDATE: As a commentor highlights, the Fifth Circuit also decided US v. Rajwani, No. 06-10648 (5th Cir. Jan 16, 2007) (available here), which also reverses an upward variance as unreasonable and is similar factually and legally to Tucker.
Lots of circuit sentencing action
I am spending the day trying to wrap up a draft of a cert petition (more on this later in the week), but I keep hearing news of important circuit sentencing rulings. This AP report provides the basics on the decision likely to garner the most attention from folks other than sentencing fanatics:
A federal appeals court on Tuesday threw out the sentence of a man who was convicted of plotting to bomb Los Angeles International Airport at the turn of the millennium. Ahmed Ressam was arrested near the U.S.-Canadian border in December 1999 after customs agents found 124 pounds of explosives in the trunk of his car....
Ressam was sentenced to 22 years in prison after being convicted off all nine charges. On Tuesday, the 9th U.S. Circuit Court of Appeals in San Francisco reversed his conviction on one of the charges and sent the case back to a lower court to issue a new sentence and explain the rationale behind the original 22-year term.
As of this writing, the Ninth Circuit's website is down (suspiciously?), so I cannot yet comment on the opinion. But I can and will note that I have seen Booker rulings of note (that I also haven't yet read) from at least three or four other circuits today. I guess everyone took advantage of the long weekend to clean-up sentencing opinions.
CJ Roberts and sentencing law: the virtues (and vices?) of consensus
As explained here, Jeff Rosen's extraordinary article in the Atlantic Monthly has me thinking hard about what CJ Roberts' eagerness for greater consensus could mean for sentencing law. This post provides a brief account of what I see as possible virtues and vices of CJ Roberts' emphasis on greater SCOTUS consensus for sentencing law.
Interestingly, Sandy Levinson has this long and critical post at Balkinization in which he seems to recast CJ Roberts' avowed affinity for consensus as an interest in "suppress[ing] the expression of independent thinking, also known as concurrences or dissents." With Levinson's focus on Hamdi, I suppose I can see a law professor's concern. But, with an eye on modern sentencing jurisprudence and its practical impact, I consider consensus to be a critical value in too short supply.
Consider the Apprendi line of cases, which has produced a set of doctrines (and puzzling exceptions to those doctrines) that are opaque and shaky because of 5-4 votes and flip-flopping Justices (ranging from Thomas in Apprendi to Scalia in Harris to Kennedy in Ring to Ginsburg in Booker). Especially for legislatures eager to get on with modern sentencing reforms, having a clear set of constitutional ground rules is much more important than having a perfect set of rules. Thus, I am encouraged that, as explained here, it appears that CJ Roberts has assigned Cunningham to Justice Breyer or Justice Ginsburg. These two Justices seem most likely to be able to produce an opinion that could carry more than five votes. (As detailed here and here, Stephanos Bibas and I have authored this recent OSJCL article discussing consensus principles designed to help SCOTUS bring some order to its sentencing jurisprudence as it considers Cunningham.)
These same dynamics and concerns are also in play in the Court's 30+ year struggle with capital sentencing jurisprudence, though I doubt CJ Roberts can expect much success in this arena. Notably, I believe the bulk of the 5-4 opinions already issued during the Roberts era have been in capital cases. And the 5-4 opinions we saw last Term in Marsh and this Term Belmontes reveal how much emotion (and bad blood?) is tied up with the current Justices' views in death penalty cases. Intriguingly, a deep commitment to consensus might have CJ Roberts urging the denial of cert in nearly all capital cases. But, though CJ Roberts may be urging such denials, at least some Justices are obviously still very interested (as evidenced by recent grants) in capital topics that are of very little consequence in most parts of the country.
That all said, it bears spotlighting that emphasis on consensus can be a vice when it allow the Court to duck sentencing issues that merit consideration sooner rather than later. The Court spoke in one voice in Burton to dodge the issue of Blakely retroactivity, but that just ensures more litigation and uncertainty on this consequential issue until SCOTUS resolves it definitively. Similarly, the Court spoke in one voice in Hill when explaining whether and how lethal injection challenges could be brought via a federal 1983 action. But, in an obvious effort to get everyone on-board, Justice Kennedy's opinion in Hill has only fueled more lower federal court debate and uncertainty about how to litigate lethal injection protocols in federal courts.
UPDATE: A reader sent me by e-mail this interesting comment that he was having trouble adding to the comments:
I am a jailhouse lawyer (no longer incarcerated). I think that Justice Roberts' intention is good. However, I find it hard to square with his vote in United States v. Gonzalez-Lopez. The issue in that case was a very rare one in criminal law (there has been very little case law on it in the lower courts). Justice Scalia's majority opinion was eminently sensible. And yet the Court insisted on splitting 5-4, and Roberts went with the dissent. If there ever was a "minor" issue in which consensus could have been achieved, then this case would seem to have been one. Roberts could have produced the consensus, or at least put himself on record as not being obstructionist when it clearly was not needed.
Another problem I see with this consensus stuff is demonstrated by the Court's recent decision in the last month or so where it decided that an overt act need not be cited in an indictment charging "attempt" in a criminal case. This too was an (apparently) minor issue. But the decision illustrates the other side of the coin. That is, the majority decision better at least make sense and clearly carry the day when compared to the dissent. I am almost sure that this decision cannot be read as convincing when compared to Scalia's lone dissent. I am only an "amateur" lawyer, but I do have a degree in physics, and I was also an auto mechanic for ten years. Both fields are entirely unamenable to B.S. and sloppy thinking, and the majority decision clearly falls into these categories, whereas Scalia's dissent is strikingly clear and persuasive.
Another troubling aspect of Roberts' interview is that he says Justice Marshall was a great Chief Justice (agreed), but then he says some laudatory things about Justice Rehnquist (hmm....). Okay, perhaps Rehnquist wasn't bad as a Chief Justice. Evidently he had some good qualities in the administrative aspects of that post, and everybody on the court says he was very fair etc. But Jesus, in the field of criminal law, one can hardly find a single decision he wrote that is notable for clarity and breaking real ground that a judge would be proud of. Rather, one never even needed to think about his vote in advance; if the issue was even marginally debatable then, bingo, he was going to go against the defendant (with but the one exception ? the decision about Miranda he wrote in the last year or so of his life).
In comparison to Rehnquist, the real gap in the article with Roberts is his failure to mention Earl Warren. I mean, Warren's achievement in gaining total consensus in Brown v. Board of Education is staring Roberts (and any other minimally knowledgeable person) in the face. Now, that was great consensus building in one of the handful of most important cases ever decided by the Court (and on a very "hot" issue to boot). Of course, Rehnquist's shoddy history on that issue (it is pretty much accepted that he outright lied about it in his confirmation hearings) is also staring Roberts in the face.
I get very uneasy by a guy like Roberts who has that big smile pasted on his face, wants to make history as a consensus builder, but then has glaring gaps when he talks about stuff on point. What the heck does he have against saying Warren was a great Chief Justice who did exactly what Roberts professes to want to do? I mean, the answer seems to have some ugly possibilities, doesn't it?
In sum, Roberts intention is good, but let's see him put his money where his mouth is. And too, let's see if he can even write a brilliant opinion in a tough case (as Scalia and numerous members of the Warren Court clearly can).
Do execution headaches impact where capital debates are headed?
These are heady times for botched executions: as detailed here, the recent ugly hanging in Iraq continues to make headlines; as detailed here, condemned prisoners in the US continue to make headway arguing that lethal injection protocols are unconstitutional. But I continue to wonder whether all the execution headaches will in any way impact where debates over the death penalty may be headed.
Are heads of state influenced by these developments or are they too headstrong to be influenced by all the headlines? Do botched executions shine a headlight on broader death penalty issues or do they provide little reason to stall a headlong pursuit of capital justice?
An early sentencing take on the Libby trial
As noted here at TalkLeft, plenty of bloggers will be covering the much-anticipated trial of Lewis "Scooter" Libby, which starts today in DC. Helpfully, this New York Sun article provides a "comprehensive spectator's guide" to all the action, and it includes this quick an accurate take on sentencing issues:
In theory, Mr. Libby could be sentenced to up to 30 years in prison and fined up to $1.25 million, if convicted on all five counts. However, judges generally observe federal sentencing guidelines, which would call for a much shorter sentence for a defendant like Mr. Libby, who has no criminal record.
I likely won't follow the trial closely unless and until there is a conviction. At this point, I suppose I am rooting for Libby to be acquitted on most counts but convicted on one so that the issue of federal sentencing based on acquitted conduct might be spotlighted in this high-profile setting.
Some Libby posts around the time of his indictment:
- More on Lewis Libby's possible plea and sentencing dynamics
- Will having a "tough" sentencing judge impact Lewis Libby's plea considerations?
- Sentencing dynamics in CIA leak investigation
- Has Patrick Fitzgerald done guideline calculations?
Namibia exploring guideline reforms
As detailed below, I have sporadically reported on major sentencing reform news from other parts of the world. Today, the news comes from Namibia, where this interesting article reports on a "plan to implement sentencing reforms in the Namibian justice system, according to remarks made by Justice Minister and Attorney General Pendukeni Iivula-Ithana yesterday at the official opening of the High Court for 2007." Here are snippet from the article:
An area that needs serious attention is sentencing reform in the criminal justice system, [Attorney General] Iivula-Ithana continued. The current system, with sentences for most crimes not prescribed and courts having the discretion to treat each case on its own merits when deciding what sentences would be appropriate for a convicted offender, in her opinion "frequently results in sentencing disparities in more or less similar cases and between sentences in crimes committed against the person as distinct from property and other crimes," Iivula-Ithana said. "It may also result in the unsatisfactory situation whereby the nature of sentence a convicted offender receives depends on who the sentencing judge was," she added. "I hold the firm view that our system, based as it is on indeterminate sentencing, has serious shortcomings," she said.
She proposed that sentencing reforms, "aimed at reducing disparity and increasing sentence uniformity, proportionality and precision", and also "geared at achieving racial parity in sentencing", should be undertaken. This, she said, can be done through adopting sentencing guidelines — to be determined by an independent body.
Related posts about guideline developments around the world:
- New Zealand's new sentencing reforms
- An international perspective on sentencing disparity
- Israeli proposal for sentencing guidelines
- What Iran and Israel have in common
January 15, 2007
Another effect of extreme mandatory sentencing laws
A reader sent me this disconcerting story from ABC News discussing a recent case in which a 16-year-old Phoenix boy was arrested for possession of computer child porn and threatened with a minimum of 90 years in prison under Arizona's severe child porn laws. As the story explains, according to an array of experts, the teenager was likely innocent, but he felt compelled to plead guilty to a (peculiar) lesser charge rather than face the risk of a unavoidably harsh mandatory sentence if he was wrongfully convicted at trial.
Many have long noted and justifiably lamented the extreme bargaining power that severe mandatory sentences can give to prosecutors. This teenager's tale — and a similar case from Arizona in which a respected teacher received a 200-year prison sentence for possessing computer child pornography (basics here, commentary here) in part because he would not cut a deal — spotlight the particular injustices that can flow from extreme mandatory sentencing terms for an array of sex-related offenses.
Still more long weekend sentencing reading
If you have somehow made it through the articles noted here and here, then you are ready for a new Blakely piece now available SSRN here. The piece is by Laura Appleman and entitled "Retributive Justice and Hidden Sentencing After Blakely." Here is the first part of the abstract:
Blakely and its recent progeny have focused attention on a broad swath of fact-finding in sentencing decisions. In doing so, however, they have raised a number of complex questions about how fact-finding operates in the front- and back-ends of sentencing — what I call ancillary, or hidden, sentencing proceedings. These ancillary sentencing proceedings have been almost entirely neglected in post-Blakely case law and scholarship.
Accordingly, this Article re-evaluates a variety of ancillary sentencing proceedings (including pre-sentence reports, prior offender statutes, probation, parole, post-release supervision and restitution) under Blakely. As part of this re-evaluation, I also locate a new paradigm of retributive justice underpinning the Court's recent sentencing decisions. Specifically, I contend that a theory of limited expressive retribution best suits the Court's new sentencing jurisprudence, because it encompasses both the historical antecedents of the 6th Amendment jury right and modern ideals of punishment.
An ugly hanging in Iraq
In this post about death penalty aesthetics, I noted that, compared to what is shown at the local multiplex and in action video games and even in most episodes of CSI, I found even the uncut Saddam execution video to be quite tame. But as detailed in this news report, the same likely could not be said about the video of the latest executions in Iraq:
Iraq hanged two of Saddam Hussein's aides early Monday, and one of the condemned was accidentally decapitated. The official video of the hangings shows Hussein's half-brother lying headless below the gallows, his severed head several yards away, the Associated Press reported.
The executioner's noose severed the head of Barzan Hassan, the former chief of Hussein's secret police, according to a spokesman for Iraqi Prime Minister Nuri al-Maliki's office. "It was not like a very pretty scene," said Basam Ridha, who was one of the witnesses. Ridha said the executions were carried out with dignity and respect, and called the accidental decapitation "an act of God."
Honoring MLK by asking hard questions
In this post on MLK day last year, I asked whether criminal justice reform should be the new civil rights movement and made this observation:
From my sentencing-centric perspective, reflecting on a day honoring Martin Luther King leads me to the view that Dr. King, were he still alive, would be focused on criminal justice reforms. So many aspects of the criminal justice system — from racial profiling to jury selection, from drug sentencing to the administration of the death penalty — highlight that our system is not color-blind (or at least not color-neutral). And, because of felon disenfranchisement and other collateral consequences, the enduring impact of a racially skewed criminal justice system cannot be overstated.
This year, in addition to encouraging everyone to take 15 minutes to watch all of Dr. King's amazing "I Have a Dream" speech (available here), I also want to encourage everyone to continue asking hard questions about how race (and class) can infect the operation of our criminal justice system in light of some of the posts highlighted below:
- What is the Sentencing Commission fiddling while the crack guidelines burn?
- Westar reversals ... a sentencing (and class) story?
- Encouraging a critical race examination of post-Booker developments
January 14, 2007
More long weekend reading
Adam M. Gershowitz, Pay Now, Execute Later: Why Counties Should Be Required To Post a Bond To Seek the Death Penalty
Abstract: When death sentences are reversed – and many of them are reversed for prosecutorial misconduct, ineffective assistance of counsel, and other reasons – local prosecutors are not forced to fully internalize the costs of their failed prosecutions. While counties make the decision to seek the death penalty, they do not have to fund the very expensive appellate and post-conviction stages of capital cases that are typically handled by state attorneys general's offices. This paper proposes that state legislatures could improve the functioning of the death-penalty system, while simultaneously acting out of financial self-interest, by requiring counties to post (and possibly forfeit) a bond to seek the death penalty. Faced with the prospect of losing a bond if the capital prosecution fails at trial or on appeal, local prosecutors would have an incentive to choose their capital cases more carefully and to avoid any type of misconduct that might lead to reversal on appeal. The prospect of forfeiting a bond also would create secondary benefits, such as encouraging prosecutors to protest the appointment of unqualified defense lawyers in order to stave off ineffective assistance of counsel claims. As a financial matter, the bond proposal should be appealing to state legislators because it would shift the exorbitant costs of failed capital prosecutions away from state budgets and into the hands of the county actors who instigated the failed prosecutions.
CJ Roberts and sentencing law: a series
Law professor Jeffrey Rosen has this extraordinary thought-provoking article in the Atlantic Monthly based on an interview with Chief Justice John Roberts. As quoted by Rosen, CJ Roberts articulates his views on being an effective Chief and explains why he is eager to get his colleagues to work together better. As Orin Kerr says, the piece is a must-read for anyone interested in the work of the Supreme Court.
As I explained here during Roberts' confirmation hearings, CJ Roberts may have an extraordinarily hard time bringing consensus to SCOTUS sentencing jurisprudence. Indeed, read through the lens of the Court's work in Booker and recent capital cases (like Kansas v. Marsh), some of the quotes in the Atlantic Monthly piece could easily be read as a slam on many (if not all) of his colleagues.
Because I found the Atlantic Monthly piece so thought-provoking, I am planning a series of posts about what CJ Roberts' eagerness for greater consensus could mean for sentencing law (in cases like Cunningham and Claiborne/Rita and capital cases). In the meantime, I cannot help but spotlight a couple of quotes from the article that read like direct slams on the work of Warren Burger and William Rehnquist as chief justices (and perhaps compliment Chief Justice Earl Warren):
“If the Court in Marshall’s era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have,” he said. “That suggests that what the Court’s been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up.” Roberts added, “I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy as an institution.”
Because I believe he is a careful and thoughtful speaker, I find very significant that CJ Roberts says "over the past thirty years has been eroding" its capital, and not over the last 40 or 50 or 60 years. A knock on the Warren Court was how its controversial rulings in the 1960s impacted the perception of the Court. But CJ Roberts focuses on the modern period (well after the unanimous Brown and the 7-2 Roe) in which Burger and Rehnquist allowed deep divides over various hot-button issues to fester.
MSM figuring out death penalty is dying
Though I have been talking about the slow death of the death penalty for more than two years (see here and here for early buzzing), the mainstream media is now finally starting to cover the story extensively. On Friday, ABC News had this piece focused mostly on lethal injection issues entitled, "Death Knell for the Death Penalty?" And today, the Washington Post has this intriguing piece entitled "Dead End -- Capital Punishment: At a Crossroads, or Is This the Exit?"
The provocative Post piece provides a look at these issues in a way that should really appeal to law-and-literature types. It also includes these notable insight:
Americans (including the president) do support the death penalty. They do so at 67 percent, though their betters -- newspaper editorial writers, the French -- tell them they shouldn't. The United States is one of four countries that account for about 95 percent of the world's executions (the others being China, Saudi Arabia and Iran).
Americans support it three decades after all of Western Europe stopped, calling it outdated, unfair and barbaric. Amnesty International, Human Rights Watch -- oh, you know. Opponents generally portray it as being on its way out, though that is hardly clear.
Two months ago, voters in Wisconsin asked to reinstate the death penalty -- 153 years after abolishing it. The non-binding referendum, which said the penalty would be used only for vicious crimes where DNA evidence proved guilt, passed at nearly 56 percent. "It passed in 71 of 72 counties, and in some counties the vote was at 68 percent," said state Sen. Alan Lasee (R), who pushed the bill.
This despite the patchwork nature of capital punishment, the fact that there is really little rhyme nor much reason as to who gets executed, and why. (A man is executed in North Carolina for killing his stepdaughter, but the BTK Killer in Kansas and the Green River Killer in Washington get life in prison.) It is so seldom used (56 times last year) that it has long since stopped being a working part of the criminal justice system. In the past 20 years, prosecutors and supporters have begun saying it is needed because it "brings closure" to victims' families, but they can't possibly mean that, because that would imply that 99 percent of the families of victims never get closure. The system is filled with what Supreme Court Justice Harry A. Blackmun once called "arbitrariness, discrimination, caprice and mistake."
A future law school exam question (or Law & Order episode)
A woman who competed in a radio station's contest to see how much water she could drink without going to the bathroom died of water intoxication, the coroner's office said Saturday. Jennifer Strange, 28, was found dead Friday in her suburban Rancho Cordova home hours after taking part in the "Hold Your Wee for a Wii" contest in which KDND 107.9 promised a Nintendo Wii video game system for the winner.
"She said to one of our supervisors that she was on her way home and her head was hurting her real bad," said Laura Rios, one of Strange's co-workers at Radiological Associates of Sacramento. "She was crying, and that was the last that anyone had heard from her." It was not immediately known how much water Strange consumed....
Initially, contestants were handed 8-ounce bottles of water to drink every 15 minutes. "They were small little half-pint bottles, so we thought it was going to be easy," said fellow contestant James Ybarra of Woodland. "They told us if you don't feel like you can do this, don't put your health at risk." Ybarra said he quit after drinking five bottles. "My bladder couldn't handle it anymore," he added. After he quit, he said, the remaining contestants, including Strange, were given even bigger bottles to drink. "I was talking to her and she was a nice lady," Ybarra said. "She was telling me about her family and her three kids and how she was doing it for her kids."
So, would-be California prosecutors, would you start a criminal investigation on these facts or just trust tort law or other civil mechanism to deal with this sad death?