February 21, 2007
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)