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December 10, 2007

Scooter Libby drops appeal ... is a holiday pardon on the way?

As very well covered by various bloggers here and here and here, the legal teams for I. Lewis "Scooter" Libby has announced that Libby has decided to drop his appeals of his convictions.  For a variety of reasons, I do not find this news especially surprising simply as a matter of economics and practicalities given that, even if his appeal was successful, Libby still could have faced an unpleasant retrial.

What is interesting is the timing of this announcement.  TalkLeft here speculates on a pardon this holiday season, though I do not know why President Bush would not be content to wait until the traditional lame duck clemency season next year.  Then again, maybe Scooter is upset that, because of federal felon-in-possession laws, he will not able able to go hunting this season (or any other) unless and until he gets a pardon.

Another possibility is that Libby, after learning that the latest issue of the Federal Sentencing Reporter is all about his case (details here; available on-line here), decided he needed more time to reflect on the lessons to be drawn from his case.

December 10, 2007 in Clemency and Pardons | Permalink | Comments (1) | TrackBack

FSG are truly advisory (even in crack cases), but what about....

... guidelines increased based on acquitted conduct?   Justice Scalia continues to suggest that sentences based heavily on acquitted conduct present as-applied Sixth Amendment violations even within an advisory guideline system.

... below-guideline sentences reduced based on co-defendant or state/federal or fast-track  disparities?  Circuit courts have generally held it to be improper for a district court to consider these types of disparities, but these same circuits had also said consideration of crack/powder disparity was improper.  Especially in light of Justice Stevens' opinion in Gall, the Supreme Court seems to be blessing the consideration of co-defendant disparities, but state/federal and fast-track disparities present tougher questions.

... below-guideline sentences based on policy disagreements with the guidelines' overall severity?  Can a judge  act on his reasoned conclusion, perhaps supported by lots of data and the USSC's own reports, that he genuinely believes the guidelines are 25% too harsh in all non-violent cases?  That is, could a judge, after properly calculating a guidelines range as "the starting point and the initial consideration," consistently and repeatedly impose a sentence  25% below the guidelines in every non-violent case based simply on his policy conclusion that the guidelines set sentences to high in such cases to serve 3553(a)?

... above-guideline sentences imposed without advance notice of the reasons to the defendant? or ... within-guideline sentences based on an guideline manual that increased sentences since the time of the crime? As previously noted in prior posts, there are circuit splits on these issues in the wake of Booker that Rita and Gall and Kimbrough do not come close to resolving.

I am sure I have left out other post-Booker head-scratchers that will ensure there is lots to keep me and others plenty busy in the weeks and months ahead.

December 10, 2007 | Permalink | Comments (11) | TrackBack

Conrad Black gets 78 months (after a favorable guideline ruling)

As detailed in this Chicago Tribune article and this AP report, Conrad Black received his federal sentence today.  Here are the basics from the AP:

Former newspaper mogul Conrad Black was sentenced Monday to 6 1/2 years in prison for swindling shareholders in his Hollinger International media empire out of millions of dollars to help finance his lavish lifestyle.

Black, 63, a Canadian-born member of the British House of Lords renowned for his flamboyant way with words, had faced up to slightly more than 8 years in prison under sentencing guidelines determined earlier Monday by U.S. District Judge Amy J. St. Eve.

Federal prosecutors previously asked St. Eve, who presided over Black's four-month trial earlier this year, to sentence the silver-haired press lord to federal prison for as long as 24 years for his July 13 convictions on three counts of mail fraud and one count of obstruction of justice.

As hinted in this account, Lord Black got the benefit of very favorable guideline rulings at the outset of his sentencing and they got a sentence at the bottom of the calculated guideline range.  It will be interesting to see if the Government, after Black appeals his convictions, considers a sentencing cross-appeal.

December 10, 2007 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

A quick Justice-by-Justice review in Gall and Kimbrough

There is so much to say about the substance of the rulings in Gall and Kimbrough (basics here), and I will likely need a few days to unpack all the important particulars.  Here I want to do a quick Justice-by-Justice review what we see in Gall and Kimbrough, in part because I think it could foreshadow the Court's work on any number of future sentencing issues.  So here goes:

Justice Ginsburg, the author of Kimbrough, reveals yet again that she only agreed to the Breyerian Booker remedy on the theory that the guidelines would be truly advisory.  Throughout her opinion she emphasizes a number of key facets of a truly advisory guideline system that should help ensure district courts appreciate how much discretionary sentencing authority they now have.

Justice Stevens, the author of Gall, reveals yet again that he can give the defense bar lots of great dicta.  His Rita concurrence was full of potent dicta, and many aspects of the Gall ruling support arguments of stressed by defense attorneys (e.g., the seriousness of supervised release and probation terms; the importance of co-defendant disparity under 3553(a)(6)).

Chief Justice Roberts and Justices Breyer and Kennedy, the three Justices who do not bark at all but join both majority opinions, reveal general disinterest and/or general exhaustion.  As was true with his vote in Cunningham, CJ Roberts seems more interested in harmony and stare decisis than in grinding and particular sentencing ax.  As shown by their opinions in Rita and Cunningham, Justices Breyer and Kennedy seem most concerned that guidelines, the Commission, and judicial power remain vibrant even in Apprendi-land, and Justice Breyer likely got both Justices Stevens and Ginsburg to add a bit of dicta to that end in Gall and Kimbrough.

Justice Scalia, the author of brief concurrences in both Gall and Kimbrough, continues to emphasize his concern with sentencing procedures and the Sixth Amendment.  Especially for issues like acquitted conduct enhancements, it is nice to see Justice Scalia continue to stress the viability of "as-applied constitutional challneges to sentences."

Justices Souter and Thomas, both of whom write separately to show they are still mad at Ginsburg for following the Breyer pied piper down the road of advisory guidelines, express their aggravation for the tangled web that the Booker remedy has weaved.  Ever the genteel New Englander, Justice Souter makes a simple call to Congress to get back to mandatory guidelines that respect the Sixth Amendment; ever the grumpy Gus, Justice Thomas makes an impassioned statement that, because the post-Booker jurisprudence has become so lawless, he's just not going to take it anymore.

Justices Alito, who authors the only real substantive dissent in either case, shows that his pro-prosecution instincts are stronger than his allegiance to statutory text.  Nowhere is his dissent does he address the parsimony mandate of 3553(a), even though he concedes that a reasonable jurist "could conclude that a sentence of probation [for Brian Gall] was sufficient in this case to serve the purposes of punishment set out" in 3553(a)(2).   

December 10, 2007 in Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (36) | TrackBack

A quick take on winners and losers in Gall and Kimbrough

I have now had a chance to read both Gall and Kimbrough, and I am really intrigued and impressed by how much good stuff is packed into two relatively short opinions.  (Perhaps it helps that, for the first time in a major Apprendi, Blakely, Booker case, Justice Breyer does not have anything to say.  In a future post, I plan to do a Justice-by-Justice take on what these two rulings show us about the Justices.)  Let me provide a much-too-quick review of my sense of winners and losers:

Big Winners

Big Losers

Win some, Lose some

UPDATE:  I am pleased to see my friend Mark Osler has this post at SCOTUSblog with his own sense of winners and losers.  Here are headings from his post:

December 10, 2007 in Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (8) | TrackBack

Michael Vick gets 23 months in prison

The Atlanta Journal Constitution has this report on this morning's sentencing for Michael Vick.  Here are the basics:

Michael Vick was sentenced Monday to 23 months in prison by a federal judge who found the fallen NFL star had not fully accepted responsibility for his conduct in a dogfighting operation. U.S. District Court Judge Henry E. Hudson said he believed Vick had been less than candid in admitting to killing pitbulls that did not test well as fighting dogs.

The judge also noted that Vick had given contradictory statements to officials regarding his drug use while out on bond. Vick tested positive for marijuana in September shortly after entering a plea agreement. Vick, wearing a black and white stripped prison jumpsuit, acknowledged to Hudson that he had made some bad decisions. "I'm willing to deal with the consequences and accept responsibility for my actions," Vick told Hudson.

After Vick apologized to Hudson, his family and his children, Hudson told him he should also apologize "to the millions of young people who looked up to you." Hudson called Vick's actions "cruel and inhumane" and said Vick played a major role by financing the dogfighting operation. "You were a full partner and equally culpable," with his three co-defendants. Vick also received three years probation.

December 10, 2007 in Celebrity sentencings | Permalink | Comments (15) | TrackBack

Should the Vick and Black sentencings be postponed so the judges and lawyers can review Gall and Kimbrough?

If I were representing either Conrad Black or Michael Vick, I think I would ask for sentencing to be postponed, at least for a few days, so everyone can review and assess what Gall and Kimbrough might mean for their cases.  For a variety of reasons, I somewhat doubt that these sentencing proceedings will be postponed, but I am interested to hear if readers think that they should be.

UPDATE: Vick already has been sentenced, and to 23 months.  Basics from the AJC here.

December 10, 2007 in Booker in district courts | Permalink | Comments (15) | TrackBack

The start of the majority opinion in Kimbrough

Here is how the Kimbrough decision's majority opinion authored by Justice Ginsburg gets started:

We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration.  The judge may determine, however, that, in the particular case, a within- Guidelines sentence is “greater than necessary” to serve the objectives of sentencing. 18 U. S. C. §3553(a) (2000 ed. and Supp. V).  In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.


December 10, 2007 in Kimbrough reasonableness case | Permalink | Comments (12) | TrackBack

The start of the majority opinion in Gall

Though the Kimbrough decision may garner more attention because of the historical controversies over crack sentencing, the Gall decision likely will be the most consequential for post-Booker sentencing realities.  Here is how Justice Stevens summarizes the majority's decision:

We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.  We also hold that the sentence imposed by the experienced District Judge in this case was reasonable.


December 10, 2007 in Gall reasonableness case | Permalink | Comments (7) | TrackBack

SCOTUS also rules for the defendant in Watson

Though much less consequential than the rulings in Gall and Kimbrough (basics here), the Watson case was also decided today by the Supreme Court.  Here's the basics from SCOTUSblog:

In the last of three rulings on Monday, the Court decided unanimously that one does not “use” a gun, for purposes of imposing a mandatory five-year sentence, if the person receives the gun in a trade for drugs.  Justice David H. Souter wrote the opinion in Watson v. U.S. (06-571).

The opinion in Watson (06-571) is here, and this ruling (along with Gall and Kimbrough) reinforce my view that the US Supreme Court is right now the most pro-defendant appellate court on criminal sentencing issues in the nation.  Whatever one thinks about the Court's purported moves to the right on other issues, in the arena of criminal sentencing, federal defendants certainly should be more hopeful arguing before the current Justices than before any other group of appellate judges.

December 10, 2007 in Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS rules for the defendants in Gall and Kimbrough!!

Providing a great Hanukkah present for me and anyone else tired of waiting, today the Supreme Court issued its decision in Gall and Kimbrough. SCOTUSblog here provides the basics:

The Supreme Court ruled 7-2 that the federal guidelines on sentencing for cocaine violations are advisory only, rejecting a lower court ruling that they are effectively mandatory.  Judges must consider the Guideline range for a cocaine violation, the Court said, but may conclude that they are too harsh when considering the disparity between punishment for crack cocaine and cocaine in powder form.  Justice Ruth Bader Ginsburg wrote the decision in Kimbrough v. U.S. (06-6330)....

Ruling in a second Guidelines case, Gall v. U.S. (06-7949), the Court — also by a 7-2 vote — cleared the way for judges to impose sentences below the specified range and still have such punishment regarded as “reasonable.” The Justices, in an opinion written by Justice John Paul Stevens, told federal appeals courts to use a “deferential abuse-of-discretion standard” even when a trial sets sets a punishment below the range.  Chief Justice John G. Roberts, Jr., announced the opinion in Stevens’ absence.

Once I have a chance to read and reflect on the opinions in these cases, I will provide A LOT more commentary.

UPDATE: Thanks to SCOTUSblog, the opinion in Kimbrough (06-6330) is here, and here are the voting blocks:

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion. THOMAS, J., and ALITO, J., filed dissenting opinions.

The opinion in Gall (06-7949) is here, and it has similar voting blocks:

STEVENS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., and SOUTER, J., filed concurring opinions. THOMAS, J., and ALITO, J., filed dissenting opinions.

December 10, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

December 9, 2007

Are you ready for some sentencing?

With apologies to Hank Williams's Monday Night classic, I cannot help but do a little song parody as I gear up for tomorrow's scheduled sentencing date for Conrad Black and Michael Vick (basics here).  Here goes:

Well it's Monday in court and we're ready to riff!
Time to get all the points, the levels and the briefs.
It's sentences of the year that's comin' your way.
The lawyers and the judges are ready to play.
We gotta get ready, we gotta get right
Cause prison terms are getting handed out before tonight!
So get ready. I mean, get ready.
Are you ready for some sentencings?! A Monday prison party!
I have not established an official betting line on either sentence, but I would probably set Michael Vick's over/under at 18 months in prison, and I would set Lord Blacks over/under at 8 years in prison.  Readers are encouraged to tell me whether they'd take the over or the under for either prominent defendant.

December 9, 2007 in Celebrity sentencings | Permalink | Comments (10) | TrackBack

The ripples of death's demise in New Jersey

Thanks to How Appealing, I saw this fanscinating article in the Newark Star-Ledger headlined "Law clerks' most morbid duty eases." Here are excerpts:

Ever since New Jersey restored capital punishment a quarter of a century ago, the state Supreme Court has assigned at least one of its law clerks each year to delve deep into the law of death. The task for this recent law school graduate is to examine every detail of each death penalty case that comes before the court -- from the crime scene photographs to the nuances of capital punishment law.

Soon the job could disappear.  New Jersey is on track to become the first state in 40 years to abolish the death penalty.  The state Senate is scheduled to vote tomorrow on legislation to replace that sentence with life in prison without parole. The Assembly is slated to take up a similar measure this week. Gov. Jon Corzine has called the change a move in the right direction. And it would eliminate the need for the death penalty law clerk.

Created in recognition of the extraordinary care needed to examine the facts and issues in cases in which a person has been sentenced to die, the post is so unusual that not even the U.S. Supreme Court has such a specialist....  Recognizing the grueling nature of the work, the justices have always made sure the clerk has at least a few non-capital matters to handle.

And the pace of the job has slowed considerably in recent years. New Jersey now has just eight people on death row, and since most have been there for more than a decade, their appeals are running down. "There aren't as many matters coming to the court," said Townsend. Halfway into the current court term, this year's clerk, Emma Freudenberger, hasn't gotten to do much death penalty work yet.

December 9, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

The capital year in review in Texas

Thanks to this post at CDW, I noticed this effective report from the Texas Coalition to Abolish the Death Penalty (TCADP). Though TCADP obviously has a anti-death penalty agenda, this report is mostly facts and just a bit of opinion. The 8-page report is entitled " Texas Death Penalty Developments in 2007: The Year in Review," and here is how it starts and ends:

December 7, 2007 marks the 25th anniversary of the resumption of executions in Texas — and the nation’s first execution by lethal injection. This comes at a time of unprecedented scrutiny of the death penalty on numerous fronts.

Even Texas has felt the impact and implications of this intense period of review. This report presents information on the death penalty in Texas in 2007, including executions, stays, and new death sentences, judicial and legislative activity, and other developments affecting the criminal justice system in the nation’s most active death penalty state....

In a year of caution, when most other states expressed concern about or acknowledged problems with their administration of the death penalty, Texas continued to carry out executions at a rate that far exceeded any other state. At one point, Texas even appeared to be on track to carry out an above average number of executions. A variety of state and federal court decisions forced the state to put its death penalty apparatus on hold for the time being, however. In addition, a spate of exonerations from Dallas County, the ongoing review of cases implicated by the Houston Police Department crime lab scandal, and investigations into potential wrongful executions continue to raise questions about the reliability of the criminal justice system. The decline in new death sentences also appears to reflect public concerns about fairness and accuracy. While efforts to improve the system met with mixed success in 2007, there is promise that recent events will have a positive impact on the future of capital punishment in Texas.

December 9, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Some highlights from around the blogosphere

Along with the Sunday papers, sentencing fans will want to check out a number of posts from some of my favorite blogs.  Specifically:

December 9, 2007 | Permalink | Comments (0) | TrackBack