February 17, 2007
Bowman Sorts the Rita/Claiborne Arguments
[Posted by Ron Wright]
Just in time for the oral arguments in Claiborne and Rita, Frank Bowman has drafted a reader's guide to the briefs of the parties and amici in the cases. His intelligent critiques of the briefs and suggestions for the best ordering of affairs in Blakely-land could make a real difference in crafting a new path forward. The essay will be published later this year in the Federal Sentencing Reporter, but this preliminary version is available at the link below.
CNN with additional coverage of Genarlow Wilson case
I am told by a knowledgeable source that CNN is back on the Genarlow Wilson case (background here and here). I was pleased to see all the attention this remrkable case received last month (including from CNN), but it seemed criticisms had started to die down. Here's hoping a new round of coverage will bring a new hope for justice for Wilson.
Some recent related posts:
- Will the Georgia legislature help Genarlow Wilson get justice?
- CNN covers Genarlow Wilson case, who's next?
- ESPN effectively covers Genarlow Wilson's sad saga
- Why isn't the severe Georgia sentence constitutionally problematic?
- Provocative questions about Georgia sentencing injustice
- The nuance in my provocation
- Another editorial urging release of Genarlow Wilson
- NYT adds to chorus calling for Genarlow Wilson to be freed
- Two (feminist?) perspectives on the Wilson case
More strong analysis of Cunningham opinions
Vik Amar, writing this time with his colleague Aaron Rappaport, has at FindLaw this great second commentary on Cunningham. The first one (available here) was entitled "The Supreme Court Invalidates California's 'Determinate Sentencing' Law." This second piece has the title, "Justice Alito's Dissent in Cunningham v. California: How Can Someone So Wrong, Be So Right?" and here is its set up:
One of the most interesting features of Cunningham was Justice Alito's intricate dissenting opinion, which was also joined by Justices Kennedy and Breyer. As one of Justice Alito's first opinions in this controversial area of criminal constitutional law — and one of his most prominent opinions to date more generally — his writing deserves careful study. Particularly interesting is how his dissent highlights and explores one of the great puzzles emerging from this line of cases: When, and why, does the exercise of judicial discretion at sentencing violate the Sixth Amendment?
Quick reading list for a long weekend
As Ron notes, I'm away and generally off-line for a long weekend. So Ron will help out with insightful posts, while I'll be providing mostly cut-and-paste content when able to get on-line. For example, here are highlights from a SmartCILP e-mail with lots of notable new published pieces on sentencing-related issues:
- Beale, Sara Sun. The news media's influence on criminal justice policy: how market-driven news promotes punitiveness. 48 Wm. & Mary L. Rev. 397-481 (2006)
- Beschle, Donald L. Cognitive dissonance revisited: Roper v. Simmons and the issue of adolescent decision-making competence. 52 Wayne L. Rev. 1-42 (2006)
- Cafaro, Tina Wescott. You drink, you drive, you lose: or do you? 42 Gonz. L. Rev. 1-28 (2006/07)
- Coleman, Brady. Shame, rage and freedom of speech: should the United States adopt European "mobbing" laws? 35 Ga. J. Int'l & Comp. L. 53-98 (2006)
- Kellar, Amanda M. Note. They're just kids: does incarcerating juveniles with adults violate the Eighth Amendment? 40 Suffolk U. L. Rev. 155-179 (2006)
- Keuten, Matthew. Note. A categorical failure: explaining why the federal courts cannot uniformly decide whether the charge of being a felon in possession is a "crime of violence" under the Bail Reform Act. 52 Wayne L. Rev. 263-284 (2006)
- King, Andrew. Comment. What the Supreme Court isn't saying about federalism, the Ninth Amendment, and medical marijuana. (Gonzales v. Raich, 125 S. Ct. 2195, 2005.) 59 Ark. L. Rev. 755-779 (2006)
- Meekins, Tamar M. "Specialized justice": the over-emergence of specialty courts and the threat of a new criminal defense paradigm. 40 Suffolk U. L. Rev. 1-55 (2006)
- Vannella, Daniel M. Note. Let the jury do the waive: how Appendi v. New Jersey applies to juvenile transfer proceedings. (Apprendi v. New Jersey, 530 U.S. 466, 2000.) 48 Wm. & Mary L. Rev. 723-770 (2006)
February 16, 2007
The Pew Index Strategy
[Posted by Ron Wright]
Doug is away for a few days. He'll be checking in now and then from the road, but while he's away I'll be feeding the dogs, watering the plants, musing once or twice on the SLP Blog ...
Recent SLP posts (here and here) have touched on the recent past work of the Pew Charitable Trusts. I want to highlight the future work of the Pew Public Safety Performance Project -- looking up to the front Pew, rather than looking behind to the back Pew (sorry, I'm just trying to invoke Doug's spirit of fun here). As you can see from this description of the project, Pew's emphasis is on promoting effective sentencing practices for states, without looking directly at the federal system.
The distinctive Pew technique for promoting good practices is to create a "report card" or an "index" to offer state officials an accessible way to compare their efforts to what happens in other states. They sort through features of state systems, reduce them to a single number or score, and compare states. Pew already uses this technique in areas such as higher education.
It's an interesting affirmation of democracy, isn't it? While it is tempting to call for the "politicians" to leave sentencing questions to the experts, the Pew strategy instead is to make expertise more populist. The report cards, to be sure, simplify some things and therefore distort to some degree. But if the rankings are done well, they focus policymakers on relevant measures and take advantage of a natural competitive spirit.
So here's my question for the large and informed readership of the SLP Blog: What data points about a state sentencing system might be (1) measurable with comparable numbers across many state systems, and (2) tell us something worthwhile about the systems, something worth ranking and changing?
February 15, 2007
A lethal injection roadtrip
This Reuters article details an interesting work trip being taken by California officials:
California penal officials are traveling nationwide to confer with experts to overcome a federal judge's objections to its execution procedure, the state's top prison official said on Thursday.... "I have people on my staff who are traveling around the country assessing our policies and procedures and what changes need to be made to be compliant with the court," James Tilton, secretary of the California Department of Corrections and Rehabilitation, said in an interview. The courts "have indicated that they think there are improvements that can be made to pass the constitutionality and we are confident that we can do that now," he continued. "By looking around the country we are think that we can provide some improvements to our process that will be compliant."
Around the blogosphere
Lots of new interesting sentencing posts at some classic locales:
Also, I just found a relatively new blog, Extra Credit, by Georgetown law prof James Forman Jr., which has a few strong posts on race and criminal justice. I was particularly interested in the questions Forman raised in this post (which I have been asking for a long time):
- Why isn't there a greater national outcry over the incarceration statistics — if we knew 50 years ago that African-Americans were going to make progress in virtually every domain, but incarceration rates were going to get dramatically worse, wouldn't we have predicted that the mass incarceration of blacks would be the lead issue for the civil rights community, concerned citizens, and progressives everywhere?
- Shouldn't conservatives and centrists care a lot about this issue — after all, these prisons are hugely expensive, drain resources and raise taxes.
An interesting call for capital papers
I am pleased to pass along this announcement from the Justice System Journal calling for paper for an upcoming issue on capital punishment. Here's the start of the pitch:
The Justice System Journal, sponsored by the National Center for State Courts, will be publishing a special issue on aspects of capital punishment; the likely publication date is late 2008. The journal's editors would be interested in receiving proposals — from academics and practitioners alike — for possible articles for that special issue. A list of possible topics appears below; most relate to courts and actors in the courts, but suggestions for other topics will be considered. The journal does not publish normative or philosophical work or extended analyses of case law. There are no restrictions on the types of methodology used, but use of elaborate statistics in the final articles is discouraged. Prospective authors are reminded that, although academics read the Justice System Journal, the journal's primary audience is court administrators and other court practitioners.
The first statement from Justice Kennedy's sentencing testimony
I mentioned in this post that there was an extraordinary exchange between Justice Kennedy and members of the Senate Judiciary Committee on sentencing issues during Justice Kennedy's testimony before the Committee yesterday. (This exchange has gone mostly unreported, except by Jan Crawford Greenburg here). After watching the video again, I though I would flag (and put in bold) Justice Kennedy's very first statement: "I am not comfortable with anything in the federal correctional system and with our sentencing policy."
As noted here, the Claiborne and Rita cases to be argued next week have a lot to do with the "the federal correctional system and with our sentencing policy" beyond just Sixth Amendment issues. Thus, as with so many other cases, Justice Kennedy is clearly a key voice and vote to watch in Claiborne and Rita.
It is also interesting to speculate how some of Justice Kennedy's other comments might color his cert vote in a case like Berger, in which a first offender is challenging a 200-year prison sentence for possessing child pornography as a violation of the Eighth Amendment (details here). Back in 1991, Justice Kennedy wrote the key plurality opinion in Harmelin that has largely ensured the Eighth Amendment now provide little or no limit on the length of non-capital sentencing terms. I wonder if Justice Kennedy might be inclined to take up Berger to provide a 21st century spin on the doctrine.
The Cunningham fog in California
This article from California, entitled "Courts in fog on sentencing after overturning of law," provides more details on post-Cunningham sentencing struggles is the national largest criminal justice system:
The U.S. Supreme Court decision that overturned California's sentencing law has left judges and lawyers across the state waiting for legislators to fill the legal vacuum left by last month's ruling.... Lawyers are already turning to appellate courts for guidance. A Riverside County district attorney's petition filed this week with the 4th District Court of Appeal asked the court to "give direction to the Riverside County trial courts" in the absence of a new sentencing law.
In the Legislature, the ball is rolling slowly. The state Senate approved a bill Tuesday to square California's Determinate Sentencing Law with the Supreme Court. The Inland delegation voted for the bill, which goes to the Assembly sometime next week.... Legal experts, the state attorney general's office and other observers predicted that thousands of inmates would appeal their upper-term sentences after the U.S. Supreme Court ruling. But the first-wave effect from Cunningham deals with new cases, not old ones.
Without word from the Legislature or state high court, prosecutors and defense lawyers are at odds about how aggravating factors may be determined in the future, other than the certainty that a judge is out as the lone fact-finder. Prosecutors want to make aggravating factors part of the official court record so a jury can consider them, once the issue is resolved. "We are reserving the right to seek an aggravated term," explained San Bernardino County Assistant District Attorney Michael Risley. Defense attorneys are challenging the efforts during arraignments, saying the absence of a law clarifying the sentencing rules makes aggravation claims pointless.
Recent related posts:
The devil's in the details of GPS tracking of sex offenders
This AP article from Wisconsin highlights some administrative realities and challenges of a new law calling for tracking sex offenders after release using GPS systems. Here are snippets:
Electronic tracking for Wisconsin's worst sex offenders — required under a law signed by Gov. Jim Doyle less than a year ago — would be dramatically scaled back under his two-year budget proposal. Doyle's budget, unveiled to lawmakers Tuesday night, would require child molesters and sexually violent offenders to wear global positioning bracelets only while they're on supervised release or parole. That's a significant step back from the law Doyle, a Democrat, signed in May to set up GPS tracking until the offender died or was too feeble to pose a threat.
The Republican-sponsored law is due to take effect in July. State Rep. Scott Suder, R-Abbotsford, its main author, said he was shocked at Doyle's changes. He accused the governor of going back on his word. "This, in essence, takes away most of our ability to track these monsters. I'm left with my jaw wide open," Suder said Wednesday. "He signed the bill. He highlighted the bill throughout his campaign. Now he is nothing short of gutting the bill. I find it appalling."...
Doyle hailed the measure the day he signed it, saying it would help police know where offenders are at any moment. But questions have lingered about both the law's constitutionality and cost. Three University of Wisconsin-Madison law professors issued an opinion earlier this month saying the law is unconstitutional because it amounts to extra punishment and the government can't submit someone no longer under its supervision to tracking. The Corrections Department requested about $24 million and nearly 235 new positions to implement the law over the next two years. Doyle's budget proposal cuts the funding to $11 million and 122 positions.
Some related posts:
Justice Kennedy lectures the Senate on sentencing realities
In this recent post, I suggested that Justice Kennedy's view on Claiborne and Rita might be impacted by his concerns about the severity of federal guideline sentences. Consequently, I was very intrigued to see Jan Crawford Greenburg reporting here on an extraordinary exchange between Justice Kennedy and members of the Senate Judiciary Committee on sentencing issues during Justice Kennedy's testimony before the Committee yesterday.
Fortunately, not only can everyone check out Jan's great post, you can also watch the exchange on video at this link. The exchange come late in a two-hour session of testimony, a little after the 1:30 mark. The exchange starts when when Senator Sheldon Whitehouse, a Democratic senator from Rhode Island new to the Judiciary Committee, asked Justice Kennedy about whether he thought, after Blakely and Booker, there is now an ideal balance between uniform sentencing rules and judicial discretion in the federal system. Justice Kennedy's fascinating reaction to this question cannot be readily summarized; it makes for a riveting 10 minutes that just must be watched by all sentencing fans.
The death of death may be greatly exaggerated
This article from the Baltimore Sun highlights why, despite lots of attacks on the administration of the death penalty, legislative repeal the death penalty is never easy:
A proposed repeal of the death penalty in Maryland, which seemed to gain momentum when Gov. Martin O'Malley said he would sign a bill, appears headed for defeat in a key Senate committee. "I think it's an uphill battle either in committee or on the Senate floor," said Sen. Brian E. Frosh, a Montgomery County Democrat and chairman of the Senate Judicial Proceedings Committee, which will take up the measure Wednesday.
February 14, 2007
Another view of viewing an execution
As detailed here and here and here, some weeks ago the aesthetics of the death penalty in general and the swiftness of the Saddam execution in particular generated a lot of interesting debate. Against that backdrop, folks interested in execution procedures in particular and the death penalty in general ought to check out this article now available on-line from the California Lawyer.
The article is entitled simply, "Witness to an Execution," and is authored by James Ardaiz, who is now the administrative presiding justice of the Fifth District Court of Appeal in Fresno. Judge Ardaiz describes his experience attending the 2006 execution of Clarence Ray Allen, whom Ardaiz prosecuted back in 1977. Here is one of many moving passages:
Allen's appeal and writ process had taken more years than the life spans of all but one of his victims. He had outlived the parents of some of the victims. What of the surviving parents who were too infirm to witness his punishment? What was the toll of their suffering through their long years of waiting? Much of the publicity in the last few weeks had been about public and legal reaction concerning executing such an aged inmate. I thought about the fact that, in the end, Allen's health was better than that of the parents of the victims. Where was the outrage at that?
As I looked at the people walking out of the witness room behind me, I saw that Allen had left a long trail of victims behind, and many of them were here walking along silently. For most of them I don't think it was over. I don't think it will ever be over. But there is one thing I know for sure: The length of time that all of this took added a layer of pain to what these people endured. And that was wrong.
Could Libby's decision not to testify now result in an obstruction-of-justice enhancement?
After seeing this AP article about today's developments in the trial of Lewis Libby, I can't help spotting an interesting potential sentencing issue. Here is the background:
Defense attorneys misled the court into thinking that former White House aide I. Lewis "Scooter" Libby would testify in his CIA leak trial, a federal judge said Wednesday, as he blocked Libby from using some classified evidence in the case....
When defense attorneys abruptly announced Wednesday that Libby no longer planned to testify, ... Fitzgerald said that jurors hearing the case therefore should not be given a prewritten statement about Libby's briefings. US District Judge Reggie Walton agreed, and reversed an earlier ruling that the evidence could be admitted. "My absolute understanding was that Mr. Libby was going to testify," the judge said. "My ruling was based on the fact that he was going to testify."
Walton appeared upset and seemed to stake his reputation on the decision. Libby's attorneys indicated they would appeal the decision if Libby is convicted. "If that's what the Supreme Court is going to say (in any ruling on an appeal), they might as well say the government's not entitled to a fair trial and the defendant is," Walton said. "I think both sides are entitled to a fair trial. If I get reversed on that, maybe I need to hang up my spurs."
Beyond the general worry about upseting the judge who'll sentence after any conviction, the Libby defense team perhaps also should ponder whether the sentencing enhancement of USSG § 3C1.1 ("Obstructing or Impeding the Administration of Justice") might now be applicable if Judge Walton now believes he was willfully misled. The great irony here, of course, is that the guidelines' obstruction enhancement is often applied when a federal defendant decided to testify, asserts innocence, but still gets convicted. Here, it seems, Libby maybe could be stung with an obstruction enhancement for the way he decided not to testify.
Revving up for Claiborne and Rita: sentencing law in four dimensions
With less than a week until the SCOTUS oral argument in Claiborne and Rita, I now see these cases as so interesting because of how four sources of multi-dimensional sentencing law and policy intersect. Let me explain:
1. Constitutional Law: Booker struck down the mandatory federal sentencing system on Sixth Amendment grounds, but then set out a remedy that seems to undermine Sixth Amendment principles. As highlighted in posts here and here, the recent Cunningham decision suggests that Claiborne and Rita could have important Sixth Amendment dimensions. Moreover, as stressed here and by the Third Circuit's work in Grier, there are also important sentencing due process issues lurking after Blakely and Booker.
2. Statutory Law: The Booker remedy was premised on Congress's legislative intent when passing the Sentencing Reform Act (SRA), and it championed the statutory instructions to sentencing judges in 18 U.S.C. § 3553(a) as the controlling law for both district judges at sentencing and circuit judges reviewing sentences. But the Booker remedy did not say much about the "multiple and vague" factors set out in 3553(a). And, as suggested here and here, lower courts have struggled greatly to make sense of the express text of the SRA and the perceived goals of federal sentencing reform.
3. Administrative Law: The US Sentencing Commission is an administrative body and the guidelines are a form of administrative law. But the Mistretta case showcased that the USSC and the guidelines are not easily fit into standard administrative law models. Some post-Booker lower court rulings have emphasized the importance of the guidelines as the product of an expert agency, and yet traditional administrative law doctrines like Chevron have never really been brought to bear in the context of federal sentencing.
4. Common (or Case) Law: Formally, Claiborne and Rita are assessing the reasonableness standard of appellate review that was created out of whole-cloth by Justice Breyer in the Booker remedy opinion. There is no obvious constitutional, statutory or administrative law tether or guideposts for the application of this standard (which in part explains why the guideline have been so central to circuit rulings). Also lacking any obvious legal source are the circuit doctrines concerning the "presumption of reasonableness" at issue in Rita and the "proportionality doctrine" at issue in Claiborne.
Adding to the intrigue, of course, is that these sources of sentencing law overlap and connect in various ways. As in Mistretta and Jones, constitutional avoidance doctrines might push the Court to adopt a particular view and interpretation of applicable statutes; as in Koon and Watts, the Court might interpret the Constitution and the SRA to enhance the power of the USSC as an adminstative agency while undercutting the development of common-law doctrines by circuit courts.
In addition, various Justices have interesting histories with the various sources of law in the context of federal sentencing jurisprudence:
- Justice Breyer, who helped draft the SRA and was an original member of the USSC, obviously has a unique perspective on (and perhaps an unhealthy affinity for) the SRA and the guidelines.
- Justice Scalia, who was the lone dissenter from the Supreme Court's initial blessing of the SRA in Mistretta, also has a unique perspective on (and perhaps an unhealthy disaffinity for) the SRA and the guidelines.
- Justice Kennedy, who authored the unanimous opinion in Koon which asserts (perhaps inaccurately) that Congress in the SRA sought to ensure "that district courts retain much of their traditional sentencing discretion," has delivered numerous potent speeches lamenting the severity of federal guideline sentences (examples here and here).
- The new Justices are the yin and yang on federal sentencing law and policy: as detailed in this post, former federal prosecutor (and FSR author) Justice Alito had lots of exposure to federal sentencing realities on the Third Circuit and through his involvement (until his SCOTUS nomination) with the Constitution Project's Sentencing Initiative; former civil lawyer CJ Roberts comes at these issues without much history and he may be far more interested in achieving consensus among the Justices than in achieving any particular outcome.
And, of course, Claiborne and Rita puts all these elements into the awlways-bubbling soup of modern debates over the Court's role in law and politics. Consequently, I thik the only really safe prediction about to the final product in Claiborne and Rita is that the decisions will be (like the Blakely and Booker precursors) unpredictable.
Potent prison projections from Pew
As detailed in this press release, The Pew Charitable Trusts today released an important new report entitled "Public Safety, Public Spending: Forecasting America's Prison Population 2007-2011. The press release has this description of the reader-friendly report (which is available here):
By 2011 one in every 178 U.S. residents will live in prison, according to a new report released today by the Public Safety Performance Project of The Pew Charitable Trusts. Public Safety, Public Spending: Forecasting America’s Prison Population 2007-2011 projects that by 2011 America will have more than 1.7 million men and women in prison, an increase of more than 192,000 from 2006. That increase could cost taxpayers as much as $27.5 billion over the next five years beyond what they currently spend on prisons.
"As states continue to struggle with tight budgets and competing priorities among health, education and safety, they are beginning to question whether huge additional investments in prisons are the most effective and economical way of combating crime," said Susan Urahn, Managing Director of State Policy Initiatives at The Pew Charitable Trusts. "The challenge for state policy makers is to ensure that taxpayers are getting a strong return on their investment in corrections: safer communities, efficient use of public dollars, and ex-offenders who become productive, law-abiding members of society."
Some recent related posts:
California's Cunningham fix moving forward
As detailed in this AP report, a proposed legislative response to the Supreme Court's Cunningham decision is moving forward in the California legislature. Here are some specifics:
Judges would get more discretion to sentence criminals under a bill passed Tuesday by the state Senate in response to a recent U.S. Supreme Court decision. The court invalidated California's current law because it requires judges to choose the middle of three sentencing options unless the facts of a particular case justify a shorter or longer prison sentence. By law, many of the factors judges weigh in that decision are never considered by jurors. The justices said it is unconstitutional to increase a sentence based on facts that were not found true by a jury.
The Senate bill, sent to the Assembly on a 36-1 vote, would end the problem by giving judges the discretion to choose any sentence within a range set by law for a particular crime.... The lone opponent, Sen. Tom McClintock, R-Thousand Oaks, said sentences should be set by a jury, not a judge as under [Senator Gloria] Romero's bill.
I find it interesting that there was a voice — but only one — urging a jury-based legislative response to Cunningham.
Going tough on repeat offenders in Colorado
Following up the theme of prosecutorial (in)discretion, a helpful reader sent me this link to a very interesting (and very long) article discussing a Colorado DA's decision to greatly expand the application of habitual offender charges. The article's title, "The Punisher: Censured but defiant, Carol Chambers goes after habitual criminals — and cops, judges and lawyers — like no other district attorney. But at what cost?", provide a good summary of its coverage.
Still hoping for more Cunningham coverage
As noted here, the Texas Law Review has joined the club of leading law reviews with an on-line companion. This one is called "See Also," and it has in the works some commentary about the Confrontation Clause.
As I explained in this post a few weeks ago, all the major journals with on-line companions would seem perfectly suited to foster and facilitate a quick blast of much-needed Cunningham analysis and commentary from scholars and practitioners. To date, I have not heard any news about special Cunningham coverage in the works anywhere, which could lead me to jump on the nascent anti-supplement bandwagon.
Some related posts from other blogs:
- On-line law review companions: too much of a good thing? (from LSI)
- Five Tips for Law Review Online Supplements (from First Movers)