August 28, 2007
More thoughtful sentencing thoughts from the Sixth Circuit
The Sixth Circuit provides more late summer sentencing food-for-thought today in US v. Franklin, No. 05-2539 (6th Cir. Aug. 28, 2007) (available here). Here is how the majority's opinion begins:
Marcus Franklin (“Franklin”) and Jamaal Clarke (“Clarke”) were convicted of various bank robbery charges in 2003. We affirmed their convictions in United States v. Franklin, 415 F.3d 537 (6th Cir. 2005), but remanded for re-sentencing under United States v. Booker, 543 U.S. 220 (2005). Following re-sentencing, Franklin again appealed, arguing that his re-sentencing violated his Sixth Amendment right to fact finding by a jury. We disagree based on Sixth Circuit precedents. The United States has appealed the re-sentencings of both Franklin and Clarke, arguing that the new sentences are unreasonable on two grounds. First, the United States claims that the district court improperly considered the impact of a mandatory, consecutive sentence when determining the reasonableness of the sentences under Booker. Second, it claims that the district court imposed substantively unreasonable sentences based upon its misinterpretation of this Court’s prior opinion in the case. We agree with the United States, VACATE the sentences, and REMAND for re-sentencing.
Judge Moore concurs only in the judgment and explains that she decided to "write separately because I believe that the majority unduly restricts the district court’s discretion on remand."
Could all the changes at DOJ lead to changes in the post-Booker landscape?
Over at SCOTUSblog, Lyle Denniston has this extended post exploring the impact and possible future of Solicitor General Paul Clement serving as Attorney General and Deputy Solicitor Gregory Garre serving as Solicitor General. Unsurprisingly, Capital Defense Weekly questions here what all the transitions could mean for certain capital punishment issues, and I am starting to think about what all the transitions could mean for post-Booker federal sentencing realities.
As regular readers know, out-going AG Gonzales repeatedly advocated a Booker legislative fix in the form of "the construction of a minimum guideline system" (see here and here). Though such a "Booker fix" seemed like a political non-starter after the 2006 election, this proposal still ensured that other possible reform responses to Booker were unlikely to emerge from the Justice Department.
Meanwhile, as SG, Paul Clement has participated in the legal battles over Booker first-hand. Clement, who argued Booker, surely played a leading role in the decision to advocate an advisory guideline remedy after Blakely and has also helped direct the government's post-Booker appellate strategies. And, with the recent Rita ruling and with Gall and Kimbrough to be argued in five weeks, Clement surely has a keen understanding of the state and likely fate of the current federal sentencing system.
These realities do not ensure that DOJ's approaches to Booker will be modified in any way, but they heighten the possibility that the changing of the guard could portend a change in policy perspectives. Moreover, even if Clement or others do not announce any specific shift in policy, key sentencing insiders like the US Sentencing Commission and the Judicial Conference might view these transitions as a key opportunity to promote new ideas that the old guard would have likely resisted.
August 27, 2007
Does Vick's (sincere?) apology change anything?
This AP account of Michael Vick's formal plea today in federal court indicates that today was full of apologizing:
First, Michael Vick apologized to all the people he lied to. NFL commissioner Roger Goodell. Atlanta Falcons owner Arthur Blank. Coach Bobby Petrino. His teammates.
"I was not honest and forthright in our discussions," the star quarterback said Monday, somber and deliberate and not speaking from notes. Then he apologized to "all the young kids out there for my immature acts." "I need to grow up," he added.
And so began a public act of contrition from Vick, who pleaded guilty to a federal dogfighting charge and then stood behind a podium to say his job now was "bettering Michael Vick the person, not the football player."
There he was, a QB so deft and nimble he pulled off any number of amazing scrambles on the field. Now he was scrambling to save himself and his football future because of his role in a gruesome dogfighting ring. Saying he was speaking "from the heart," Vick said he took full responsibility for his actions. "Dogfighting is a terrible thing, and I did reject it," he said.
A few years ago, as discussed here, the (now-defunct) Legal Affairs' Debate Club had this great debate between Professors Richard Bierschbach and Michael O'Hear addressing "Will An Apology Save you From Jail?". The Vick case would seem to be a perfect concrete setting in which to explore some of these professors more abstract musings.
UPDATE: USA Today has a nice summary of Vick issues in this story entitled, "After the plea, what's next for Michael Vick, Falcons?"
Major paper coverage of California prison realities
Though it might just be an example of my selective perception, I think we are seeing more and more corrections stories in major papers these days. Exhibits one and two come from two coastal Times (though both deal with California's prison woes):
- Today, from the New York Times here, "Using Muscle to Improve Health Care for Prisoners."
- A few days ago, from the Los Angeles Times here, "Increase in inmates opens door to private prisons"
Ninth Circuit reverses sentence on notable procedural grounds
Today, the Ninth Circuit in US v. Chase, No. 06-30242 (9th Cir. Aug. 27, 2007) (available here), reverses a sentence based on notable (and relatively unusual) procedural grounds. Here is the first paragraph of the opinion:
Defendant-Appellant David Toro Chase (“Chase”) appeals his sentence for conviction of conspiracy to manufacture methamphetamine. Chase contends that: (1) the district court erred in denying his request for an expert; (2) the court based its determination of drug quantity on unreliable evidence; and (3) the sentence was greater than necessary. We hold that the district court abused its discretion in denying Chase’s request for a forensic expert and relied on evidence lacking sufficient indicia of reliability. We do not reach the third issue.
Detailing sound "policy disagreements with the Guidelines" to justify variances
This weekend I read closely the Government's brief in Gall (available here). The brief is quite well done and effective, in part because it makes many sound and significant concessions. Most critically, as previously highlighted here, the Government's brief repeatedly explains that district courts can vary from the Guidelines "based solely on policy disagreements with the Guidelines." Gov't Brief in Gall at 36; accord id. at 37 n.11 ("sentencing courts may impose non-Guidelines sentences based on policy disagreements with the Sentencing Commission"); see also id. at 32 ("variances need not be justified solely on factual grounds but may ... be based on reasoned policy considerations").
In light of this important concession, I decided to begin a list of "reasoned policy considerations" for disagreeing with certain Guidelines. Notably, as highlighted below, some policy reasons for varying from the Guidelines are suggested by the Commission's own research. For now, I have started this list without detailed explanations, though I may annotate this list in future posts (and readers are encouraged to add to the list in the comments).
Policy Reasons for Variances Suggested by the Commission
1. Crack guidelines are much too harsh relative to powder guidelines, especially for low-level offenders
2. Career offender guidelines are too harsh, especially for offenders with relatively minor prior offenses
3. Criminal history category I may overstate the risk of recidivism for "true" first offenders
Policy Reasons for Variances Suggested by Many Others
4. The guidelines unduly emphasize quantities (like loss calculations and drug weights) and ignore true culpability considerations based on a defendant's mental state
5. The guidelines too readily rely on uncharged (and even acquitted) conduct to greatly increase offense levels
6. The guidelines categorize many minor prior offenses as "crimes of violence" to enhance sentences
7. The guidelines fail to encourage alternatives to incarceration, especially for non-violent first offenders
8. The guidelines fail to incorporate relevant personal circumstances, such as mental conditions, prior good works (like military service), family circumstances, drug dependence
9. The guidelines generally fail to give voice and attention to victims' interests or to the interest of other third parties impacted by the crime and punishment
En banc Eighth Circuit ruling on departure particulars
Among many sentencing ruling appearing on this opinion page, the Eighth Circuit today issued a lengthy en banc decision in US v. Burns, No. 04-2901 (8th Cir. Aug. 27, 2007) (available here). Here is the lengthy summary of the decision:
Determination of the value of the assistance a cooperating defendant provides law enforcement in any given circumstance must be viewed in light of the entire defendant behavior associated with that circumstance, and requiring more qualitatively impressive substantial assistance to justify progressively larger departures furthers the goal of reducing unjustified sentencing disparities while recognizing that situations exist at the tapering edge of the assistance bell-curve that justify departures that substantially exceed the Sentencing Guideline's range; here, the district court abused its discretion in granting defendant a 60% departure based on his substantial assistance, as the timeliness of his assistance and its truthfulness and completeness were not so exceptional as to merit the size of the departure; further, while the nature and extent of defendant's assistance was not inconsiderable, to grant such a large departure on this basis would leave little room for more substantial and extensive assistance by other defendants; district court did not err in using 360 months as the starting point for any departure, as the government's filing of a 5K1.1 motion did not waive the application of the mandatory life sentence which applied in the case.
Judge Bright, dissenting in part on the issue of the extent of the departure and concurring in part on the issue of the starting point, joined by Judge Bye. Judge Bye, dissenting in part on the issue of the extent of the departure and concurring in part on the issue of the starting point, joined by Judge Bright.
Suggestions (with a sentencing focus) for the new AG?
Perhaps SL&P readers have ideas for who should replace Alberto Gonzales as AG. Use the comments if you have any great suggestions. Both realistic and unrealistic ideas are welcome, but they should be thoughtful (or at least funny).
August 26, 2007
AG Gonzales gone ... to be replaced by Chertoff
Over here at Volokh, Jonathan Alter notes this US News item indicating that the "buzz among top Bushies is that beleaguered Attorney General Alberto Gonzales finally plans to depart and will be replaced by Homeland Security Secretary Michael Chertoff." Though I won't believe it until it happens, it is still fun to start speculating about what this could mean for federal criminal justice policy.
UPDATE: CNN and others in the blogosphere now report that this rumor is now a reality: "Embattled U.S. Attorney General Alberto Gonzales has resigned, senior administration officials told CNN Monday. President Bush will likely nominate Homeland Security Secretary Michael Chertoff to the position, senior administration officials said. Clay Johnson, deputy director for management at the Office of Management and Budget, would replace Chertoff, the officials said."
Press coverage of important work on sentencing realities
Sunday's Providence Journal has this effective feature story about the important "ground-level" work on federal sentencing reforms being done by Prof. David Zlotnick (previously discussed here). Here is the start of the article:
In political terms, they are often viewed as liberal grievances, such as the disparity in sentences for crack versus powder cocaine, and life sentences handed out to nonviolent or first-time drug offenders. But these objections come from federal judges appointed by Republican presidents such as Ronald Reagan and George H.W. Bush. And for that reason, their comments offer guideposts for those searching for practical, bipartisan proposals to change federal sentencing laws, according to Roger Williams University law Prof. David M. Zlotnick.
After 4½ years of work, Zlotnick has compiled 40 case studies in which federal judges appointed by GOP presidents complained that sentences required by law were excessive, and he has placed his research on a Web site so it can be used in the upcoming debate in Congress over proposed changes in crack cocaine penalties . "By showing that Republican appointees share many of the same concerns as academics and criminal defense attorneys, I hope to explode the myth of the liberal federal judiciary and pave the way for meaningful and bipartisan sentencing reform," Zlotnick wrote.