February 24, 2007
Another view of the Rita and Claiborne oral arguments
In recent posts set out below, I have (along with many thoughtful commentors) provided a take on the Rita and Claiborne SCOTUS oral arguments from this past week. For another view, I have received from a favorite former student a brief summary of both arguments that he prepared for his defender office. These summaries can be downloaded here: Download ritaclaiborne_argument_summaries.rtf
In addition, this student had these intriguing additional comments on the oral argument:
The govt. strongly argues that the "presumption" on appeal and "discretion" in the district are entirely compatible. In theory, I can perfectly understand this argument. But, in practice, that could not be further from the truth. I was just at a hearing yesterday where the District Judge said the 10th Cir. applies a "presumption" for within Guideline sentences and therefore the Cir. endorses rigid adherence to the Guidelines. No matter how strenuously we object or try to correct the District Judge, the "presumption" is always looming in the District Court. The govt.'s response is that it hopes District Judges would follow 3553(a) regardless of the appellate presumption, Rita pg. 29, but the govt. should know very well this is not the reality at sentencing.
Also, while predictions are doomed to fail, I essentially think Justice Stevens' question towards to end of Rita (pg. 45) foreshadows what could be a likely outcome: all sentences that consider 3553(a) will be presumed reasonable and on a case-by-case basis, with no proportionality requirement, the COA will determine if the appealing party can overcome the presumption. With that outcome, you don't have the inconsistency of the govt.'s argument, and you can avoid unwarranted disparities through the development of a common law of sentencing under 3553(a).
Some related Rita and Claiborne oral argument posts:
- A first quick take on the Rita transcript
- A first quick take on the Claiborne transcript
- Revving up for Claiborne and Rita: sentencing law in four dimensions
- Reviewing Claiborne/Rita rev up
- Justice Scalia's Theory of Appellate Review and the Sixth Amendment
- Transcript for Claiborne Arguments
Sentencing, a love story
This AP article reports on a unique sentencing story from an Illinois state court:
With help from a judge, a man being sentenced to five years in prison also got a life partner. After sentencing 23-year-old David Kite on Wednesday to prison for stealing a lawnmower from a home, St. Clair County Circuit Judge John Baricevic obliged Kite’s request to marry girlfriend Victoria Smith in the same courtroom. The groom sported an orange jumpsuit, shackles and handcuffs during the five-minute civil ceremony; the bride had on a T-shirt and sweat pants....
Kite had just pleaded guilty to a felony theft count and was ordered imprisoned when Kite asked for a furlough to marry Smith, promising to surrender to begin serving his sentence afterward. A prosecutor objected, and Baricevic denied the request. "Usually to grant a furlough, it has to be an emergency situation. I didn’t think marriage was," the judge said. Moments later, Kite and Smith said they wanted to get married immediately. So with Kite in a holdover cell, Smith hustled to the county clerk’s office and filled out a marriage license the clerk brought over for Kite to sign.
I suppose it would be inappropriate to suggest that the defendant here arguably got both a five-year sentence and a life sentence.
February 23, 2007
Montana senate votes to repeal death penalty
As detailed in this AP article, "The Democratic-controlled Senate on Friday gave preliminary approval to abolishing the death penalty in Montana." Here are more details:
After a lengthy debate in which lawmakers quoted Jesus, Thomas Jefferson and Ted Bundy, the Senate voted 27-22 to approve the measure... The measure still faces a final Senate vote, before going to the Republican-controlled House.
Efforts to abolish the death penalty have failed in each of the past three legislative sessions. There are currently two prisoners on death row in Montana, and the state has executed three people since the death penalty was reinstated in the 1970s. The most recent execution, of convicted murderer David Dawson, occurred just last year.
Busy circuit sentencing times
Providing a notable cap on a notable federal sentencing week, I see that there are notable recent sentencing decisions covering a range of issues coming on-line from the DC, Fourth, Fifth, Sixth, Eighth and Tenth Circuits.
I would be grateful if interested folks might use the comments to spotlight whether they think any of the issues in any of these cases are especially important.
Updates on the work of Florida's LI commission
Thanks to How Appealing, I see that the St. Petersburg Times today contains two articles about the work of the Florida commission reviewing the state's lethal injection procedures. This lead article is entitled "Panel finding answers elusive"; this companion article is entitled "'As if in pain': Notes from Diaz execution." Here are snippets from the lead article:
A panel reviewing Florida's execution procedures over the last few weeks has heard testimony that is part spy novel and part horror film. Anonymous executioners have testified over speakerphone with their voices electronically disguised. Some have refused to say much about their backgrounds out of fear they will be identified. Doctors have revealed details of lethal injection executions gone awry, including one expert who showed grisly photos of inmates whose deaths did not appear to come smoothly.
Former Gov. Jeb Bush formed the commission to study Florida's lethal injection protocols after the Dec. 13 execution of Angel Diaz took more than twice as long as usual. The 11-person commission is not questioning whether to put inmates to death, but only how best to do so. In several meetings over the last few weeks, the commission has heard conflicting testimony over how well lethal injection works and how badly the Diaz execution was botched. The commission will meet perhaps for the final time Saturday in Tampa to discuss recommendations that are due by March 1 to Gov. Charlie Crist.
Here are some of the key questions the group has confronted, and answers that have emerged.
- What went wrong with the Diaz execution?
- Did Diaz feel pain? And why is that important?
- Doesn't the Department of Corrections have records of what happened?
- Why do we use lethal injection in the first place?
- What is the role of medical professionals during executions?
You will have to go the article to read the interesting answers to these questions.
Some recent related posts:
- A lethal injection roadtrip
- Another view of viewing an execution
- NYT piece on lethal injection
- How is Florida's lethal injection commission doing?
Another chance for cert in Berger
In my punitive damages commentary here and here after the SCOTUS Philip Morris decision, I have suggested that Justices eager to constitutionally second-guess some harsh corporate punishments should also be willing to constitutionally second-guess some harsh individual punishments. And a case now being reviewed by the Court — in which first-offender Morton Berger challenges his 200-year prison sentence for possessing child pornography (basics here, commentary here) — presents a unique opportunity for the Court (and its new Justices) to grapple with its confusing non-capital Eighth Amendment jurisprudence.
As detailed in this docket sheet, the Berger case was discussed by the Justices at conference last week and is now slated to be discussed again today. For various reasons developed in prior posts, the Berger case seems like a great vehicle for the Court to explore its doctrines on what constitutes cruel and unusual punishment:
- What are the odds of a cert grant in Berger?
- CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
- Analogizing extreme punitive damages and extreme punitive sentences
- Might Berger get SCOTUS attention?
- Arizona Supreme Court upholds 200-year sentence for possessing child porn
- What ever happened to state constitutional law, textualism, and libertarianism?
- Liberty versus security in the war on ... sex offenders
Latest news and thoughts on Genarlow Wilson
ABC News has this long piece with background and the latest developments in the Genarlow Wilson saga. The piece has me thinking again about the legality of Wilson's continued service of a 10-year prison sentence even though the Georgia legislature subsequently "reclassified Wilson's offense from a felony to a misdemeanor" for which the harshest sentence is a year in jail.
Consider this analogy. Suppose the Maryland legislature repeals the state's death penalty, but does not address what to do about the nine persons current on Maryland's death row. Would it be proper (or constitutional) for prosecutors to still seek the execution of these nine previously-convicted capital offenders?
If it feels very wrong to imagine seeking the execution of previously convicted capital defendants after a legislative repeal of the death penalty, Genarlow Wilson's continued imprisonment should also feel very wrong. Wilson has already served twice as long a sentence as Georgia law now currently provides for his crime. I view continuing to imprison Wilson based on a conviction with a now-repealed sentencing term to be analogous to trying to execute a capital defendant even after a repeal of the death penalty.
Some related Genarlow Wilson 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?
- CNN with additional coverage of Genarlow Wilson case
- Ugly debate in Wilson case
UPDATE: A loyal reader points to 1 U.S.C. § 109, a provision of federal law that states:
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
I guess that means that, in 2009, if President Hillary Clinton signs a bill passed by Congress to repeal the federal death penalty, Attorney General Bill Clinton can and should still seek the execution of the roughly 50 defendants on federal death row unless that legislation expressly provides for a different sentence for these previously convicted capital killers.
California facing forced prison releases
As detailed in this AP article, California's prison overcrowding crisis is leading now has political leaders in panic mode:
Facing a looming deadline and dwindling options, Gov. Arnold Schwarzenegger and Democratic leaders said Thursday that they will consider letting some inmates out of prison early to avoid court-ordered early releases. The governor told reporters during an afternoon news conference that one option could be freeing nonviolent offenders.
Soon afterward, his press office issued a statement modifying Schwarzenegger's comments. In the written statement, Schwarzenegger said he would not rule out "the potential release of the old, feeble and sick who pose no threat to the public. ... However, I will not allow the early release of any felons -- violent or nonviolent -- as a means to address overcrowding."
Schwarzenegger's news conference followed a meeting with the four legislative leaders that was driven by a renewed urgency to deal with severe overcrowding in California's 33 prisons. "We made a commitment that everything is on the table, from building more prisons to creating a sentencing commission to parole reform," Schwarzenegger said during the news conference.
The overcrowding is the subject of three separate lawsuits filed in federal courts throughout Northern California. One of the judges has set a mid-May deadline for the state to produce a plan to deal with the crowding. Two judges said they could seek the early release of inmates and cap the inmate population -- thus keeping convicts in county jails -- unless the state acted to solve the overcrowding. California's prisons were designed for 100,000 inmates but hold nearly twice that number.
February 22, 2007
A informed suggestion that FSG for white-collar offenses are presumptively unreasonable
I noted here two new Yale Law Journal's Pocket Part pieces exploring the severity of modern white-collar sentences. Though both pieces have various flourishes, I found especially notable these first two sentences from the commentary by Andrew Weissmann and Joshua Block:
At the margins, the current Federal Sentencing Guidelines for fraud and other white-collar offenses are too severe. Even when a corporate leader has engaged in massive fraud affecting thousands of people, such as what occurred at Enron, sentences of twenty or more years hardly seem necessary to satisfy the traditional sentencing goals of specific and general deterrence — or even retribution.
These lines are notable particularly because co-author Andrew Weissmann, who's now an attorney at Jenner & Block, formerly served as Director of the United States Department of Justice Enron Task Force. So, by my lights, the former director of DOJ top white-collar task force views the "current Federal Sentencing Guidelines for fraud and other white-collar offenses" as too severe and "greater than necessary" to serve the purposes of punishment set out by Congress in 3553(a)(2). That seems like pretty strong evidence that all guidelines sentences for white-collar offenses ought to be considered presumptively unreasonable, and certainly not presumptively reasonable.
Some related posts:
A fascinating (and funky) Sixth Circuit reasonableness ruling
The Sixth Circuit today in US v. Funk, No. No. 05-3708 (6th Cir. Feb. 22, 2007) (available here), issued an interesting — and perhaps now suspect — ruling reversing as unreasonable a sentence that turned on the district judge's decision not to apply the career offender guideline. In a detailed opinion, which reprints the district court's extended justification for its sentencing decision, the Sixth Circuit concludes "the district court erred in mitigating Funk's sentence on the basis of an impermissible sentencing factor, namely, the court's disagreement with Congress's policy decisions as implemented by the Sentencing Commission in the career offender provisions, and by failing adequately to justify its substantial deviation from the applicable guidelines range."
I find the Sixth Circuit's ruling in Funk troublesome in part because it relies very heavily on the guidelines (and barely mentions other 3553(a) factors) when deciding that Funk's sentence is unreasonable. That said, I can understand why, in light of some existing circuit precedents, the Sixth Circuit was put off by the district court's decision to disregard the applicable career offender enhancement.
For even more intrigue, consider that the Government in the recent Rita argument suggested that it is "necessary for [a district] court to have the legal freedom to be able to disagree with what the Sentencing Commission said." (transcript at p. 35). In light of that (official?) concession — and the fact that the career offender guideline is a Commission creation, not a statutory mandate — I cannot help but feel a bit funky about how the Sixth Circuit brought in the Funk.
MVRA meets ERISA in the Ninth Circuit
I always thought one benefit of my interest in criminal law was that I would never need to understand ERISA. But a 67-page en banc decision from the Ninth Circuit today shows I was wrong. In US v. Novak, No. 04-55838 (9th Cir. Feb 22, 2007) (available here) the Ninth Circuit explores the intersection of "the Mandatory Victims Restitution Act of 1996 ("MVRA"), Pub. L. No. 104-132, 110 Stat. 1227, governing the payment of restitution to crime victims, and ... the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461, regulating private pension plans."
Of course, Novak is a must-read for any criminal defense lawyers who always really wanted to be ERISA lawyers and perhaps also for any ERISA lawyers who always really wanted to be criminal defense lawyers. As for others...
The virtues of throwing a book at the defendant
From the Cincinnati Enquirer comes this encouraging story, entitled "Book report ends jail term: Defendant says he learned from Anne Frank's diary," of a creative sentence that seemed to work well. Here are the highlights:
A man ordered to read "The Diary of Anne Frank" as part of his sentence for threatening a Jewish attorney told a judge Wednesday he learned a lot from the story of the 13-year-old Jewish girl and her family who were forced into hiding by the Nazis during World War II. Kevin Wisby said he and Frank were both imprisoned — although unlike her, his came as a result of his own actions.
Wisby, 39, apologized to attorney Edward Felson, saying his comments were inappropriate. Hamilton County Municipal Judge John Burlew was impressed with Wisby's remorse and released him early from the year-long jail term he was serving. "It was one of the few cases where I've seen a person gain insight," Burlew said. "Maybe some of the hate will be cut off with his generation."
Felson was not in court Wednesday, but has read Wisby's 18-page book report. "When dealing with ethnic slurs, normal sentences don't work," Felson said. "Education is the best solution. "The judge had a lot of insight," he added. "As unusual as it was, it might be the only thing that would make him understand what he said and did."
Pre-conviction speculation about possible sentencing term for Libby
As detailed in this Washington Post article, Lewis Libby's fate is now in the hands of a federal jury. The article has this mention of possible sentencing dynamics:
Libby, 56, is charged with five felonies: two counts of making false statements to FBI agents, two counts of perjury and one count of obstructing justice. He is not charged with the leak itself. If convicted of all charges, he would face a potential prison term of 1 1/2 to three years under federal sentencing guidelines, prosecutors outside the case have said.
Because the guideline are, of course, only advisory, and because lots of different aggravating and mitigating factors might be raised in Libby's case, I could see Libby's sentence being much lower or much higher than this estimate.
While we await a jury outcome, perhaps some readers would like to give US District Judge Reggie Walton additional sentencing advice about the possible application of the guidelines' advice and others 3553(a) factors.
Obviously, the Libby case is atypical in many ways, but is that alone a reason not to focus on the guidelines? Do 3553(a) factors suggest that a particularly lenient, or a particularly harsh, sentence for Libby would be appropriate? I am very interested in thoughtful musings while Libby's sentencing is still only a possibility.
Yale LJ Pocket Part explores white-collar sentencing
I just noticed that the Yale Law Journal's Pocket Part has two new pieces exploring the severity of modern white-collar sentences in the federal system:
- Here is a piece by Ellen Podgor, entitled "Throwing Away the Key"
- Here is a response from Andrew Weissmann and Joshua Block, entitled "White-Collar Defendants and White-Collar Crimes"
Both pieces look like must-reads.
More on the capital craziness in Arizona
In 2006, Maricopa County Attorney Andrew Thomas sought the death penalty in nearly half of the first-degree murder cases, and there is an all-time high of 135 capital cases in trial or headed toward trial. In heinous cases, Thomas says, death should be on the table for the jury to decide. "I think that it's appropriate for a panel of citizens to make that ultimate decision," he said. "And I am willing to invest the resources necessary to give them that option."
But his crusade could be straining the system. The surge could mean a huge tab for taxpayers, few attorneys to represent people who face death sentences and more death-penalty cases than the Arizona Supreme Court is equipped to handle. A Maricopa County judge has ordered an unprecedented March 2 hearing to probe a critical shortage of death-penalty defense attorneys. And the Arizona Supreme Court has asked a task force to figure out how to handle the incoming tide of Maricopa County cases.
The county has more pending death-penalty cases than many other communities around the country, figures show. Harris County in Texas has 17 pending death-penalty cases, and officials there are undecided whether to seek death in 39 other murder cases. Historically, Harris County has had the highest number of death sentences and executions in the nation. Maricopa County also dwarfs Los Angeles County, which is more than twice the size of Maricopa County, but has only 36 pending death-penalty cases.
While Thomas and some county officials say that it's tough to put a price on justice, death isn't cheap. Since a person's life is on the line, capital cases require more lawyers, extra jail security, more courtroom time and more court staff even before the defendant reaches death row. Just providing the legally required trial defense for one death case can cost the county up to $250,000, according to one estimate. Most murder suspects can't afford to pay attorneys, and taxpayers must foot the bill....
Since Thomas took office in 2005, he has made the death penalty a centerpiece of his term. He has pushed for legislation to speed up cases and lashed out at defense attorneys and judges for case delays.
Some recent related posts:
- Post about article by Adam M. Gershowitz, entitled "Pay Now, Execute Later: Why Counties Should Be Required To Post a Bond To Seek the Death Penalty"
Lots of notable death penalty headlines
As is often the case, death penalty issues are making headlines coast to coast. Here are a few of the headlines that caught my eye this morning:
- From the AP in Texas here, "Texas to execute man for killing elderly couple"
- From the Baltimore Sun here, "Maryland death penalty is debated: O'Malley calls for repeal in two legislative panels"
- From the AP in California here, "A year after Morales' execution stayed, state is still hammering out new plan for lethal injection."
- From the AP in Indiana here, "Indiana asked to halt executions: A report called the state's death penalty 'seemingly random.''
February 21, 2007
A first quick take on the Claiborne transcript
I have now had a chance to read quickly the oral argument transcript in Claiborne (noted here with nice comments from readers). Here are a few first-cut reactions:
1. Though counsel for defendant Claiborne did a nice job emphasizing some parts of the text of 3553(a), I still would have liked to have seen more engagement with the purposes of sentencing set forth in 3553(a)(2). I think counsel should have said that the Eighth Circuit did not state (let alone explain) why any of the 3553(a)(2) purposes were not sufficiently served by the district court's sentencing determination.
2. Counsel for the Government did an amazing job showing respect for the Booker constitutional ruling while still pushing the notion that the guidelines have to serve as a "tether" for post-Booker sentencing decision-making.
3. There was an obvious effort by all the Justices to find an applicable standard by which to judge sentencing outcomes on appeal. As point 1 above highlights, I think that standard can and should should be the express textual instructions that Congress set forth in 3553(a)(2). If those instructions seem too vague or are hard to apply or do not result in sufficiently consistent outcomes, Congress can and should change those express statutory instructions (or make the guidelines mandatory again by providing for Sixth Amendment compliant fact-finding).
4. Justice Stevens wonderfully started to gravitate toward an offense/offender distinction in his questioning of counsel for the Government. As I suggested in a recent post, as well as in a recent Stanford Law Review article, I think an offense/offender distinction can be very illuminating for sorting through a lot of post-Booker issues. It will be very interesting to see if this distinction (which Justices Kennedy and Breyer have some affinity for) ultimately finds expression in the opinions in Claiborne.
Analogizing extreme punitive damages and extreme punitive sentences
My take on the Philip Morris decision has already generated many thoughtful comments, which prompt me to develop a bit more the analogies I see between extreme punitive damages and extreme punitive sentences. Here goes:
1. Both punitive schemes are authorized by legislatures. Before a jury can impose extreme punitive damages, such damages have to be directly authorized or at least indirectly permitted by legislatures. Legislatures can put caps on punitive damages. The dissenters in Philip Morris likely believe that limits on punitive damages should come from democratic lawmaking and not from judicial constitutional creation.
2. Extreme punitive outcomes are the product of case-specific decisionmakers gone wild. Extreme punitive damages awards are typically the product of a particular jury deciding to bring the hammer down on a particular tortfeasor it does not like (for good or bad reasons). Extreme punitive sentences are typically the product of a particular prosecutor deciding to bring the hammer down on a particular offender it does not like(for good or bad reasons).
3. The deep harms of extreme outcomes may come from the pressure to settle/plea. A judgment of $80 million probably does not cause much of a blip in most major corporate balance sheets. But, extreme awards drive up the costs of litigation and produce pressure on corporations to settle weak cases rather than run the risk of out-of-whack punitive damages. Similarly, a harm of extreme sentences is that they are only imposed on defendants exercising their trial rights and ticking off prosecutors seeking a plea (see, e.g., Berger and Wilson and the border agent cases and just about every other out-of-whack criminal sentence).
4. Judicial moderation of both types of extreme outcomes seems warranted in light of the Bill of Rights. For the record, I am comfortable with some judicial regulation of extreme punitive damages awards. Extreme out-of-whack jury awards surely can create real harms that legislatures will not always (and perhaps should not always) seek to address. Extreme out-of-whack sentences surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.
Debunking some myths about the quest for sentencing uniformity
As I read the Rita and Claiborne oral argument transcripts, I am aggravated by the persistent assumptions that (1) Congress is exclusively concerned with sentencing uniformity, and (2) a guideline-centric sentencing system with judicial fact-finding is essential to achieving sentencing uniformity. These assumptions reflect a superficial understanding of the Sentencing Reform Act of 1984, subsequent sentencing legislation passed by Congress, and the federal guidelines in operation. Let me explain.
The text of the SRA and its legislative history show that Congress in 1984 was interested not only in greater sentencing consistency, but also in creating a more principled, reasoned and transparent federal sentencing system. As the crack sentencing debate spotlights, slavish adherence to certain guidelines can often produce an unprincipled form of uniformity. That why the US Sentencing Commission has repeatedly said the crack guidelines undermine the goals of the SRA.
Further, in a major report in 1991, the USSC explained to Congress that mandatory minimums in operation produce unwarranted disparity. Nevertheless, Congress has continued to embrace mandatory minimum statutes that undermine the sensible pursuit of sentencing uniformity. In addition, Congress has rarely sought to regulate prosecutorial discretion even though the USSC has long detailed the myriad ways prosecutorial discretion can produce unwarranted disparities. In fact, the 2003 PROTECT Act broadly expanded prosecutorial discretion in various ways, including formally embracing different prosecutorial fast-track policies throughout the country. Obviously, Congress has many sentencing goals beyond just achieving sentencing uniformity.
Relatedly, after Booker, Congress could have readily returned the guidelines to their mandatory status simply by declaring that guideline fact-finding should conform to Sixth Amendment. (This is how the majority of states responded to Blakely.) But we have now had advisory guidelines in place for more than two years, and Congress has not seriously considered any legislative fix to make the guidelines mandatory again. This shows, yet again, that Congress has many sentencing goals beyond just achieving sentencing uniformity.
As I explain in much of my scholarship, I am a strong believer in sentencing guidelines because they can and should enhance more consistent, principled, reasoned and transparent sentencing practices. Unfortunately, the federal sentencing guidelines often champion superficial notions of uniformity over other equally important sentencing goals (even though the SRA as reflected in text of 3553(a) & (c) and other provisions rightfully stress other critical goals). I am hopeful that the decisions in Rita and Claiborne will be sensitive to these realities to help ensure that the federal system still aspires to achieve principled, reasoned and transparent federal sentencing justice.
A first quick take on the Rita transcript
I have now had a chance to read quickly the oral argument transcript in Rita (first discussed here). Here are a few first-cut reactions:
1. Though first QP in Rita asked "Was the district court's choice of a within-Guidelines sentence reasonable?," the Court spent most of its time focused on the presumption of reasonableness for within-guideline sentences.
2. Counsel for defendant Rita from the outset framed the case in general terms that played into the government's emphasis on the importance of the guidelines to foster sentencing uniformity. I think counsel should have focused the Court explore the first QP noted above.
3. Counsel for the Government made concessions about the application of the Booker remedy that seem to be in tension with some of DOJ's arguments in lower court post-Booker litigation.
4. There was disturbingly little discussion or exploration of the text of 3553(a). Because this text seems to favor defendants, I am not surprised the Government avoided it, but I was disappointed this provision was not more central to the defendant's arguments.
5. Justice Breyer is clearly interested in continuing a guideline-centric sentencing system, but that's no surprise. Questions from other Justices left me unsure about whether others are personally committed to preserving a guideline-centric universe.
6. I still think Justice Kennedy is an intriguing and uncertain vote in Rita. As noted here, last week he told Congress that "I am not comfortable with anything in the federal correctional system and with our sentencing policy." Is someone who makes this statement, and who has repeatedly lamented the severity of federal sentencing terms, likely to embrace the notion that the federal sentencing guidelines are always presumptively reasonable?
Activist liberty: second guessing corporate punishment by state juries and courts in Philip Morris
I have never quite understood Justice Breyer's concept of active liberty, especially since the concept seems hard to square with Justice Breyer's antipathy toward the Apprendi-Blakely line of constitutional decisions. And Justice Breyer's majority opinion for an unusual coalition of justices in the Philip Morris punitive damages case does not help me understand his vision constitutional adjudication. But, I do understand some other important realities after Philip Morris:
1. At least five members of the Supreme Court remain willing and perhaps eager to place significant constitutional limitations through the Due Process Clause on punitive damages awards. And, since Justice Stevens notes that there is "little difference between the justification for a criminal sanction, such as a fine or a term of imprisonment, and an award of punitive damages," criminal defense attorney might look for ways to use Philip Morris when attacking certain sentencing outcomes.
2. Philip Morris champions federal judicial regulatory power over the authority of state juries and courts. In Philip Morris, a state jury decided that a corporation deserved to be punished to the tune of $79.5 million; Oregon state courts ultimately found this punishment to be justifiable. But the five members of the Supreme Court essentially overruled these judgments while announcing a new judicially-created constitutional limit on punitive damages awards.
3. The five Justice in the Philip Morris majority includes both Chief Justice Roberts and Justice Alito, but neither Justice Scalia or Justice Thomas. If President Bush's goal truly was to appoint justices in the mold of Scalia and Thomas, Philip Morris would suggest he failed.
4. As I suggest in my initial post on Philip Morris, it remains to be seen if the five Justices who are prepared to constitutionally second-guess certain instances of harsh corporate punishment might also be willing to sometimes constitutionally second-guess certain instances of harsh individual punishment.
Around the blogosphere
After an extended long weekend, I am back at my regular computer and see lots and lots of sentencing-related posts worth checking out at these old and new favorites:
- Crime and Consequences
- Corrections Sentencing
- Think Outside the Cage
- Sex Crimes
- Sex Offender Issues
- Ohio Death Penalty Information
February 20, 2007
Transcript for Claiborne Arguments
[Posted by Ron Wright]
The transcripts for the oral arguments in Claiborne are now available here. Now's the time to dive in, rummage among the rich arguments, and bring back to the comments section what you've found. Jump in there with Bermanesque enthusiasm!
Justice Scalia's Theory of Appellate Review and the Sixth Amendment
[Posted by Ron Wright]
The oral argument transcripts for Rita are now available online. On a quick first read, something interesting jumped out at me. Justice Scalia seems to be constructing an argument that a specialized form of Sixth Amendment violation happens when appellate courts review sentences:
Mr. Cochran, I have this concern: If we accept your submission that the district court should just consider the guidelines together with everything else, give them a presumption of validity, anything else, just something to consider, that would presumably eliminate any Sixth Amendment problem with the district court's findings of fact.
But the district court's sentence is going to go on appeal. And the appellate court in reviewing it for reasonableness, let's assume in this case the appellate -- the appellate court says oh, no, this person had -- we find as a matter of fact, given the record, military service, you know, which we think should have been taken into account. And, therefore, we set it aside.
Now, the next case that comes up, which doesn't have the element of military service, in all other respects the same as your client's case, it comes up to the court of appeals, and the court of appeals would say, ah, we don't have that different fact here and therefore we affirm the sentence. Isn't -- in other words isn't the finding of a fact necessary for the process of judicial review, even if it is not made necessary for the purposes of the district court's determination? He would not get that sentence but for this fact.
So it appears that Justice Scalia is adding new reasons to believe that the Booker remedy is, in practice, inevitably going to conflict with the requirements of Blakely. Very active questioning also came from Justices Breyer and Ginsburg, with fewer questions from Justices Kennedy, Souter, and Alito, and from Chief Justice Roberts.
Off-line for the rest of fat sentencing Tuesday
After putting off commitments to cover all the morning SCOTUS action, a day of transit now means I will be off-line the rest of today and thus unable to post immediately about the oral arguments in Claiborne and Rita (background here). Fortunately, same-day transcripting means that, at this SCOTUS link later this afternoon, everyone can read the actions for themselves.
Comments to this post about what transpired in the reasonableness debate and what it might mean for post-Booker realities are, of course, highly encouraged. I should be able to consume the transcripts and provide some initial commentary be very late tonight or early tomorrow.
More divided SCOTUS habeas work
Though I find the Supreme Court's 5-4 work in Philip Morris expanding the constitutional limits on punitive damages to be the biggest "sentencing" decision of the day (basics here), the Court also decided -- also by a 5-4 vote -- a case about statutory limits on federal habeas actions. Here is Lyle Denniston's report from SCOTUSblog:
In the third and final decision, the Court, dividing 5-4, rules that the one-year filing period for a federal habeas challenge is not interrupted while the inmate has a petition for review pending in the Supreme Court. Justice Thomas wrote the majority opinion in Lawrence v. Florida (05-8820).
All of the Court's opinions today should be posted at this SCOTUS link relatively soon. Commentors are encouraged to opine about whether and why all of the new Chief's talk about the importance of consensus fades away when punishment is at issue.
SCOTUS takes up another criminal history enhancement case
This early report from SCOTUSblog indicates that the Supreme Court has granted cert in yet another federal case concerning predicate crimes for certain criminal-history sentencing enhancements. Here's the specifics of Lyle Denniston's report:
The Court also agreed to hear a pauper case, Logan v. U.S. (06-6911), testing when an individual convicted of misdemeanor crimes is to be treated as a career criminal, resulting in an enhanced sentence.
Lots of Cunningham GVRs
Unsurprisingly, today's SCOTUS order list (available here) includes a whole bunch of Cunningham GVRs for case from California. In addition, as previewed here, the Court also dealt with the Gomez (the Tennessee Blakely case), and it did so with a GVR.
I am not sure there is much notable in these expected developments, but perhaps more informed readers have more to say about the particulars.
SCOTUS continues to regulate corporate punishment
As detailed in this AP article and this early report from SCOTUSblog, the Supreme Court has ruled "that it is unconstitutional for a jury to award punitive damages out of a desire to punish a company for harming individuals other than those directly involved in the lawsuit in Philip Morris USA v. Williams Estate (05-1256)."
I hope that the Court's continuing willingness to declare unconstitutional specific instances of excessive corporate punishment might, in some way, get extended to its review of cases involving excessive individual punishment.
Ugly debate in Wilson case
Instead of dealing with the fact that Genarlow Wilson is serving a 10-year sentence for a crime that the Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment, the Georgia legislature is caught up in ugly name calling about Wilson's case. Here's are some of the details from this news article:
A war of words has erupted over the highly publicized case of a Douglas County teenager sentenced to 10 years in prison for having consensual sex with a minor. Georgia Senate President Pro Tempore Eric Johnson (R-Savannah) released a column Sunday about the case of Genarlow Wilson, the day after he figured prominently in a CNN piece about Wilson....
Johnson, in an interview Monday, said Wilson is "choosing martyrdom," rather than take a plea deal. Johnson dismissed [Wilson lawyer] Bernstein's criticisms. "She's hired a publicist, got a Web site and is raising money," Johnson said of Bernstein. "As long as she can use any — whether it's the bill, or whether it's a press conference or whether it's an op-ed — to generate publicity and go on national TV, she will. She is trying this case in the media because she lost it in court."
February 19, 2007
Reviewing Claiborne/Rita rev up
With oral arguments in Claiborne and Rita now less than 24 hours away, I thought it useful to review the posts in my "Revving up" series:
- Revving up for Claiborne and Rita: a series and background
- Revving up for Claiborne and Rita: more resources
- Revving up for Claiborne and Rita: shameless self-promotion
- Revving up for Rita: harsh treatment for a lesser Libby
- Revving up for Claiborne: a crack(ed) safety-valve sentence
- Revving up for Claiborne and Rita: will due process play any role?
- Revving up for Claiborne and Rita: sentencing law in four dimensions
In addition, a lot more information (including all the briefs) and other commentary can be found in this Claiborne and Rita reasonableness case category archive.
As goes California, so goes Tennessee?
[Posted by Ron Wright]
The Cunningham case settled the applicability of Blakely to the largest "hold-out" state, California. Another remaining hold-out jurisdiction, Tennessee, is set to be resolved any time now. In State v. Gomez, the Tennessee Supreme Court held that the Tennessee “presumptive” sentencing scheme was valid because the judge retained the discretion to sentence anywhere within the range. (Background here.) Cunningham rejected that notion and so it seems inevitable that Tennessee will join California soon in Blakely land.
The ever-alert David Raybin, an attorney in Nashville who is involved in this litigation, sends in the following update:
Whatever will happen will happen soon. Gomez (05-296 ) was scheduled for conference on February 16. My own companion case State v. Guartos (06-6790) was just set for conference also on February 16. So the worm has turned and we should see something perhaps as early as Tuesday…. Most of us think Gomez will just be remanded but who knows what SCOTUS may do to the Tennessee Supreme Court’s “plain error” ruling.
Two reads before tomorrow's SCOTUS excitement
Oral arguments in Claiborne and Rita are now just a day away, and here are two good reads to help gear up for all the fun:
- At SCOTUSblog, Lyle Denniston has this extended post entitled "Salvaging the Guidelines" which reviews the issues and the briefing in these cases. Among other notable details, Lyle's post indicates that Rita will be argued first and that Deputy SG Michael Dreeben will be arguing both cases for the federal government.
- At FindLaw, Douglas Kmiec has this essay praising Justice Roberts for "encouraging his colleagues toward rulings ... that are sufficiently clear and unified." Give all the issues in play in Claiborne and Rita, producing clear and unified opinions in these cases would be a significant accomplishment.
UPDATE: Another piece on CJ Roberts' rules of order comes today from Howard Bashman in this "On Appeal" column where he notes that "the chief justice's own actions demonstrate that achieving a majority holding or avoiding a slim five-justice majority are not significant enough goals to abandon one's own firm convictions as to the correct outcome in a case."
February 18, 2007
Revving up for Claiborne and Rita: shameless self-promotion
I am so eagerly anticipating the Supreme Court's work in Claiborne and Rita in part because I have written so much over the last few years about Blakely, Booker and modern sentencing reforms in light of the Court's modern sentencing jurisprudence. With the arguments in Claiborne and Rita now only days away, I cannot resist this self-serving post assembling some of my major writings (with dates of publication):
- Conceptualizing Booker (Spring 2006)
- Conceptualizing Blakely (Fall 2004)
- Beyond Blakely and Booker: Pondering Modern Sentencing Process (Spring 2005)
- Reconceptualizing Sentencing (Summer 2005)
- Distinguishing Offense Conduct and Offender Characteristics (Fall 2005)
- Tweaking Booker: Advisory Guidelines in the Federal System (Summer 2006)
- Making Sentencing Sensible (with Stephanos Bibas) (Fall 2006)
- Reasoning Through Reasonableness (Summer 2006)
- What's the Future of Federal Sentencing? (with Frank Bowman) (Winter 2006)
- Perspectives on Booker's Potential (Winter 2006)
- Now What? The Post-Booker Challenge for Congress and the Sentencing Commission (Spring 2006)
Major Amicus Efforts
- Claiborne and Rita: Reasonableness review in the Supreme Court (Winter 2007)
- Crack sentencing in many circuits (Spring 2006)
- Reasonableness review in the Ninth Circuit (Summer 2006)
- Reasonableness review of veteran's variance (Fall 2006)