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January 17, 2009

Death penalty colloquium next month at Tennessee College of Law

As detailed on this webpage, the University of Tennessee College of Law has a big death penalty event next month. Here are some particulars via an e-mail I received from one of the organizers:

The Tennessee Law Review is hosting an exciting colloquium entitled "The Past, Present, and Future of the Death Penalty." The Colloquium will take place next month, February 6-7, at the University of Tennessee College of Law.

Our lineup includes nationally known experts, such as Dwight Aarons, David Baldus, Hugo Adam Bedau, Steve Bright, Deborah Denno, Lyn Entzeroth, the Honorable Gilbert S. Merritt, and Penny White. The event's full schedule is available at this link, and registration is open there.

The Colloquium is free to the public, though we're asking everyone to register so we can estimate how many attendees to expect. For attorneys seeking CLE credit, the Colloquium has been approved for 6 hours of general credit, with registration at $150. 

Additionally, the Tennessee Law Review will publish articles from many of the Colloquium speakers in a special Spring 2009 Symposium Issue on the Death Penalty.

January 17, 2009 in Death Penalty Reforms | Permalink | Comments (10) | TrackBack

Did anything truly notable (or worth discussing) happen during the Holder hearings?

I was on the road for the last two days and thus had no opportunity to watch or even follow indirectly the Senate hearings for AG-nominee Eric Holder.  Based on press reports (collected here by How Appealing), it seems there was not much of great interest for sentencing fans beyond all the pedantic pardon talk.  But I would be eager and grateful if readers would use the comments to spotlight if anything really notable or worth discussing came up during the hearings.

Some posts on the Holder pick for Attorney General:

January 17, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

Implementing the new crack guidelines retroactivity in Connecticut

The Connecticut Law Tribune has this new article detailing how the new crack guidelines have been implemented in the Nutmeg State.  Here are some excerpts:

According to statistics compiled by the Federal Public Defenders Office in Connecticut, 154 out of 410 potentially eligible inmates in Connecticut had their sentences reduced between March 2008 and the beginning of this month.  Eighty other petitions were denied, while about 50 more are still pending.

“The biggest problem was screening all the potential candidates and determining if they’re eligible,” said Connecticut Federal Defender Thomas Dennis. He said far more than 410 inmates contacted his office to inquire about their eligibility, even those without crack cocaine convictions....

According to Sarah Merriam, an assistant federal defender who has monitored every Connecticut challenge, 50 percent of the reductions were agreed to by both sides.  Merriam said that 60 of the 154 Connecticut defendants who had sentences reduced have been released....

Also, just because a defendant was eligible for a reduction did not mean a judge had to grant it.  Merriam said an inmate’s behavior in prison was taken into account.  However, the most common reasons for rejection were if the defendant was a career criminal or if they had a mandatory minimum sentence.  Merriam said the crack re-sentencing guideline was superseded by another sentencing guideline that applied to defendants who had committed two prior crimes.

“There are still some questions about eligibility,” said Dennis, noting that there are several appeals pending in U.S. District Court from defendants whose sentencing reductions were not granted. “I imagine it’ll take another year or so before all these issues get ironed out.”

One issue Dennis never expected amongst those eligible for an earlier release from prison -- inmates not wanting to leave early.  “A couple clients didn’t want us to file [a petition] on their behalf,” said Dennis. “I don’t know if they like it [in prison] but they didn’t want us to do anything. So we acceded to their request.”

January 17, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (4) | TrackBack

January 16, 2009

A request for a commutation for Weldon Angelos

Regular readers will recall the name Weldon Angelos; Angelos was sentenced nearly five years ago to a federal mandatory minimum sentencing term of 55 years in prison following three small hand-to-hand marijuana sales to a paid government informant.  I became directly involved in Weldon's case when his sister asked if I would help with his 2255 motion.  Aided by a great legal team working pro bono, we are continuing to litigate this motion.  And, as detailed in this new report in the Salt Lake Tribune, this team has also now filed a clemency petition requesting President George Bush to commute Weldon's extreme sentence.  Those interested in the clemency petition (which is very long because we added some court filings in the appendix) can download it below:

Download Angelos Clemency Petition (Bush)

Related posts providing some of the legal history of the Angelos case:

January 16, 2009 | Permalink | Comments (9) | TrackBack

Supreme Court takes up intriguing capital case involving mental retardation

As detailed in this SCOTUSblog post, the Supreme Court granted cert on six new cases this afternoon.  Though a number of the new cases involve criminal justice issues, the one case most likely to interest sentencing fans involves application of the death penalty to a potentially mentally retarded defendant.  Here is how Lyle Denniston describes the issue and case at SCOTUSblog:

Whether a state is constitutionally barred from challenging the claim of mental retardation of an individual it seeks to execute for crime, if a state court had once found the person to be retarded even while upholding a death sentence.  The case of Bobby v. Bies (08-598) involves an Ohio case that basically involves a “double jeopardy” question.  Specifically, it is whether it is unconstitutional double jeopardy if a state begins a new challenge to a convicted killer’s mental retardation, if a state court had previously found the individual to be retarded — thus possibly settling an ultimate issue so that it could not be pursued anew later.

Though the procedural history of this capital case leads me to suspect that some Justices were wearing their "error-correction" hats when deciding to take up the State of Ohio's complaints about the Sixth Circuit's reversal of a death sentence here.  But the interplay of Atkins and double jeopardy issues perhaps means this new case should go on my list of potential sleepers for this Term.

January 16, 2009 | Permalink | Comments (0) | TrackBack

Terrific commentary and assessment of the war on drugs

The site Culture11 has these three terrific new pieces concerning the war on drugs:

All three pieces are must-reads not only for persons concerned about drug policy and reform, but for anyone interested in the economy, civil rights, government power, health care, or really any other major public policy concern.  (I guess I am saying the entire Obama transition team ought to read all the pieces.) 

Here is the openning subtitles of each piece:

From Balko: "Prohibition militarizes police, enriches our enemies, undermines our laws, and condemns our sick to suffering."

From Freddoso: "Legalization won’t end the violence, but it will fry plenty of brains."

From Bartholomew: "America can’t afford marijuana prohibition – it’s a matter of dollars and sense."

January 16, 2009 in Drug Offense Sentencing | Permalink | Comments (11) | TrackBack

"Is it possible to feel sympathy in a child porn case?"

The title of this post is the title of this interesting commentary piece in the St. Louis Post Dispatch about an older defendant sentenced to 90 month in federal prison because of downloading child porn.  Here is a interesting snippet:

[P]eople who view this stuff generally get more time than the people who molest children.  That's because in a child-molestation case, the witness is the child, and most parents are reluctant to put the child through the additional trauma of a trial.  So if there is a plea agreement, the advantage is to the defense.  In a child porn case, the images themselves are the evidence, and no defendant wants the jury to see this stuff.  The advantage is to the prosecution, and the resultant plea agreements reflect the draconian nature of the laws.  Possession of child pornography carries a sentence of up to 20 years. Why so harsh?  It's a one-way argument.  What legislator is going to argue for lightening the penalties for possession of child pornography?

Some related recent federal child porn prosecution and sentencing posts:

January 16, 2009 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Gov pledges to do "everything" to abolish capital punishment in Maryland

As detailed through articles today in the Washington Post and in the Baltimore Sun, Maryland's governor has decided to really commit to getting the death penalty abolished in his state.  Here is the start of the Sun article:

Gov. Martin O'Malley said yesterday that he will do "everything in my power" to abolish the death penalty in Maryland this year and for the first time raised the possibility of allowing voters to decide the divisive issue through a constitutional amendment if legislative repeal efforts fail again.

"It's an issue with grave moral implications, certainly equal to the slots legislation," O'Malley said, referring to the casino gambling referendum that was approved by voters last year. "Maybe that's the way to go."

The governor, a Democrat, said he intends to sponsor a bill to repeal capital punishment, which would put more of his political capital behind the issue.  A longtime death penalty opponent, the governor has testified in favor of repeal legislation, but he has never offered his own initiative.  His effort comes a month after a gubernatorial commission voted to recommend abolishing capital punishment and issued a report outlining what it saw as fatal flaws in the application of the death penalty.

Some lawmakers and death penalty opponents said the administration's sponsorship could be enough to move a bill out of the Senate Judicial Proceedings Committee, where identical efforts have failed the past two years.  Sen. Lisa A. Gladden, a Baltimore Democrat who has sponsored those bills, said she was pleased when the governor told her Wednesday that repeal of the death penalty would be part of his administration's legislative package.

I wonder if Governor O'Malley really means he will do "everything" in his power to eliminate the death penalty in Maryland.  Though I am not sure about the full scope of executive powers in Maryland, I assume Governor O'Malley could do a lot more than just put forward a legislative repeal proposal. 

He could, I assume, seek to commute the death sentences of those right now on death row and also pledge to commute any future death sentences.  He could, I assume, issue a variety of executive orders that would formally or functionally make it harder for Maryland's prosecutors to pursue capital cases.  He could, I assume, propose a budget providing lots of funding for lawyers who represent murder defendants.  In other words, because Governors have lots of powers beyond just proposing legislation, it will be interesting to see if Governor O'Malley is really prepared to go to the mat on this issue.

January 16, 2009 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

January 15, 2009

Fifth Circuit laments, but affirms, another crazy-long mandatory federal sentence

The Fifth Circuit today affirms a very long mandatory federal sentence in US v. Sterling, No. 07-30001 (5th Cir. Jan 15, 2009) (available here), but the panel was clearly troubled by what it felt forced by the law to do.  The first two paragraphs of the opinion provide the startling basics:

We are required to affirm a conviction for offenses that led inexorably to a 99-year sentence of imprisonment for a young, addicted drug dealer.  This sentence exceeds, in this court’s experience, what has been meted out to some drug trafficking kingpins.  Why the Government chose to pile on its indictment against Sterling, especially after he pled guilty to the Mullins incident, is not ascertainable from the Pre-Sentence Report (“PSR”).  This court is obliged to apply the law, but we expect that the prosecutor’s nearly unfettered discretion will not be abused. Here, we are not so confident of that precondition to justice.

Based on his recanted confession, a jury convicted Justin Paul Sterling (“Sterling”) of three counts of distribution of cocaine base, three counts of possession of a firearm in furtherance of a drug trafficking crime, and one count of possession of a firearm with an obliterated serial number. Sterling appeals the drug trafficking and firearm convictions, arguing that his conviction rested solely on his uncorroborated confession.  He further argues that because under the Government’s theory he did not receive the firearms at the time he purchased them with drugs, he did not possess the firearms in furtherance of a drug trafficking crime.  Because other evidence corroborated Sterling’s confession and showed that he possessed firearms in furtherance of a drug trafficking crime, we AFFIRM.

January 15, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (11) | TrackBack

Will there be any federal sentencing or mass incarceration talk at the Holder hearings?

I will be on the road and off-line for much of today, but the President-elect and the Senate were kind enough to ensure sentencing fans will have something else to follow while this blog is quiet.  Specifically, the Senate confirmation hearings for Eric Holder, whom Barack Obama has nominated to be the next Attorney General of the United States, are scheduled to begin this morning at 9:30 am.  The hearings can be followed via webcast through this official webpage of the Senate Judiciary Committee, where one can also find lots and lots of documents and letters concerning AG-nominee Holder's background and professional history.

As regular readers know, I have done a lot of Holder-related posts in recent weeks (some of which are linked below).  These posts spotlight some of the sentencing-related issues that may (or may not) arise during the confirmation hearings.  I will be grateful to any readers who use the comments to note and discuss any sentencing topics that arise during the Holder hearings.

Some posts on the Holder pick for Attorney General:

January 15, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (1) | TrackBack

Death penalty news and notes

Here are a few death penalty headlines and stories from a variety of states that caught my eye this morning:




January 15, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Interesting SCOTUS discussion of plea agreement breaches in Puckett

With so much else going on in the sentencing world these days, I have not given much attention to Puckett v. United States (07-9712), the case before the Supreme Court involving the government breach of a plea agreement regarding arguments to be made at sentencing.  I have not focused on Puckett much because the official question presented concerns appellate review standards: "Whether a forfeited claim that the government breached a plea agreement is subject to the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure."

But, upon reading the transcript of today's oral argument in Puckett, which is now available at this link, I was reminded of how rarely the Supreme Court has occasion to consider the many legal issues surrounding plea agreements.  And, in the Puckett argument, various Justices struggle with the question of whether the government really breached the plea agreement, whether any breach could be considered harmless, and what sorts of remedies might be justified and appropriate for the government's (iffy?) breach.

As detailed in some of the posts listed below, lower courts often struggle with various practical questions in the wake of the prosecutorial failures at sentencing to comply with plea promises.  Puckett could provide some guidance on these issues, but I am fearful the case's opaque facts and unusual procedural posture may keep it from shedding needed light in this arena.

Some related posts:

January 15, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (14) | TrackBack

January 14, 2009

A Philippino priest, an angry jury and a state judge meet at a white-collar sentencing

Though the title of this post might make a good opening line to some kind of bizarre joke, it actually provides the backstory for this interesting local story about a state judge imposing a sentence way below what a state jury had recommended.  Here are the details:

Former Catholic priest Rodney L. Rodis was sentenced yesterday to serve a prison sentence much shorter than the 200 years that a Louisa County jury recommended.  Yesterday, Judge Timothy K. Sanner, suspended 187 of the 200 years the jury wanted after it found the 52-year-old Rodis guilty of 10 counts of embezzlement from two Louisa churches.  The suspended sentence is contingent on Rodis paying back more than $400,000 in restitution to the Catholic Diocese of Richmond.

But Sanner said in court yesterday, that he never actually expects Rodis to repay the money he took because the former priest will be deported to the Philippines, his home country, after his release from prison. Sanner said this was the first time he reduced a jury’s recommendation.  The 200-year sentence was the maximum the jury could have recommended on the 10 convictions.

Rodis’ 13-year active sentence for the Louisa convictions will start after he finishes his current sentence in federal prison. Last spring, Rodis pleaded guilty in federal court to charges of money laundering and wire fraud in connection to the long-term theft of money from St. Jude and Immaculate Conception churches in Louisa. He was sentenced to serve five years on those charges.

Louisa Deputy Commonwealth’s Attorney Rusty McGuire said yesterday that authorities still believe Rodis stole as much as $1 million in the 13 years he served as the leader for the two churches.  After yesterday’s formal sentencing, McGuire said he never expected Sanner to uphold the jury’s recommendation because it was so extreme. In court, Sanner said he felt the jury was persuaded to sentence Rodis to such a large amount of time after members of the church spoke out against their former pastor at his October hearing.

January 14, 2009 in White-collar sentencing | Permalink | Comments (0) | TrackBack

More news about likely key players in Obama Administration's Justice Department

The Blog of Legal Times has this new post titled "More Names Emerge for Key DOJ Slots."  Here are snippets that should be of particular interest to those interested in key players for the federal criminal justice system:

We're getting a clearer picture of the new Justice Department’s top ranks, as Attorney General nominee Eric Holder Jr.’s confirmation hearings begin.

The leading candidate to head the Justice Department's Criminal Division, Lanny Breuer, who is Holder’s partner at Covington & Burling, was named by the The Washington Post last week. The BLT has learned of a few more frontrunners for top DOJ slots:...

Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, is the top pick for principal deputy solicitor general, the office’s No. 2 spot, the sources say.  From 1998 to 1999, Katyal (Yale Law) served as Holder’s national security adviser in the Justice Department.

I do not know Lanny Breuer, though his firm bioreveals that he has earned a strong reputation in white-collar criminal defense.  I do know Neal Katyal from way back when we clerked in successive years for Second Circuit Judge Guido Calabresi, and I have only good things to say about him and his considerable talents.

January 14, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

Eighth Circuit reverses (again) reduced sentence in extreme sex offense case

The Eighth Circuit has yet another notable sentencing ruling today in a notable federal sex offense that has come before the circuit repeatedly.  The first few paragraphs and some of the concluding sentences of this new panel opinion provides the ugly basics of an ugly case (and I use the adjective ugly here without intending to opine in any way on the substantive merits of the ruling):

Ruth Kane (Kane) repeatedly restrained and compelled her nine-year-old daughter to submit to the sexual gratification of a pedophile in exchange for Kane’s receipt of $20.  This sexual abuse occurred approximately twice a week for more than 200 molestations.  A jury found Kane guilty of aggravated sexual abuse and conspiracy to commit aggravated sexual abuse.  The district court sentenced Kane to 210 months imprisonment.

Kane appealed.  We affirmed Kane’s conviction, but vacated her sentence and remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005).  See United States v. Kane, 148 Fed. Appx. 565, 568 (8th Cir. 2005) (unpublished).   The district court resentenced Kane to 120 months imprisonment. The government appealed. We reversed, holding Kane’s 120-month sentence was unreasonable.  See United States v. Kane, 470 F.3d 1277, 1282 (8th Cir. 2006) (Kane II).  The Supreme Court vacated and remanded for reconsideration in light of Gall v. United States, 128 S. Ct. 586 (2007).  Having considered Gall’s impact on Kane’s sentence, we again vacate the sentence of the district court and remand for resentencing....

Given the horrifying nature of Kane’s conduct, the fact Kane repeated her offense against her daughter over 200 times, and Kane’s refusal to accept responsibility for her role in her daughter’s abuse, we have serious concerns about the substantive reasonableness of Kane’s 120-month sentence. We doubt the district court’s remaining “justification is sufficiently compelling to support the degree of the variance” for the district court’s deviation below the Guidelines range.  Gall, 128 S. Ct. at 597. However, because the district court procedurally erred by substantially basing Kane’s sentence on clearly erroneous factual findings, relying on Kane’s postsentence rehabilitation, and otherwise failing adequately to explain Kane’s unusually lenient sentence with sufficient justifications, we do not reach the issue of whether Kane’s sentence was substantively reasonable.

January 14, 2009 in Booker in the Circuits | Permalink | Comments (12) | TrackBack

Why did Justice Stevens, the author of Apprendi, vote to Ice Sixth Amendment jury rights?

There are lots of interesting and surprising aspects to the Supreme Court's Ice ruling today, ranging from the absence of opinions from Justices Breyer and Alito (the two Justices with the most criminal justice history) to the willingness of Chief Justice Roberts to join Justice Scalia's forceful dissent.  But the biggest surprise, in my view, is the vote of Justice Stevens to reject the application (or should I say extension?) of the Apprendi-Blakely principle in the consecutive sentencing setting. 

Justice Ginsburg, as evidenced by her vote for the Booker remedy, long ago showed her concerns about taking the logic and consequences of Apprendi-Blakely too far.  But Justice Stevens had never before shown any squishiness or squeamishness about giving full effect to the Sixth Amendment jury trial rights he championed in his Apprendi and Booker opinions for the Court.  But, with Ice presenting an important opportunity to continue the "Apprendi revolution" that Justice Stevens helped start, he joins an opinion that reflects, as Justice Scalia notes, many of the arguments of the Apprendi-Blakely dissenters.

Especially notable in this context is this (gratuitous?) paragraph of important dicta in the majority opinion in Ice:

Further, it is unclear how many other state initiatives would fall under Ice’s proposed expansion of Apprendi.   As 17 States have observed in an amici brief supporting Oregon, States currently permit judges to make a varietyof sentencing determinations other than the length ofincarceration.  Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendanceat drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution.  See Brief for State of Indiana et al. as Amici Curiae 11.  Intruding Apprendi’s rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings.

This paragraph goes a long way to ensuring that the Sixth Amendment rights championed in the Apprendi-Blakely line of cases are not going to avail many defendants in other sentencing settings in which judges have been given broad authority to conduct fact-finding to increase sentences.  I am especially surprised that Justice Stevens was willing to allow all this this anti-Apprendi dicta carry the day in Ice.

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (2) | TrackBack

California board saying sex offender residency restrictions not working

The Los Angeles Times has this article, headlined "There's no evidence Jessica's Law works, California officials say," reporting on the apparent inefficacy of residency restrictions for sex offenders in California.  Here is how the article starts:

A state panel is urging the governor and legislators to change "Jessica's Law," saying its restrictions on where sex offenders can live are counterproductive and calling the nearly $25 million a year spent to house them a poor use of taxpayers' money.

The residency restrictions, passed by voters more than two years ago in Proposition 83, have never been shown to prevent new crimes and may reduce public safety, the panel says.

Since 70% of voters approved the initiative, "the availability of suitable housing has plummeted," the state's Sex Offender Management Board said in a report sent to lawmakers this week.

The state previously had more modest residency limits that applied only to certain sex offenders. Jessica's Law expanded the restrictions to all sex offenders and greatly reduced the locations where they could reside.

Barring sex offenders from living within 2,000 feet of schools, parks and other areas where children gather has driven many into homelessness, an unstable situation that can propel them back to crime, according to the board.

State corrections officials say they find housing and pay rent for about 800 who are on parole, but they cannot house them all; the number of homeless sex offenders on parole is 12 times as large as it was when the law was passed. "It seems unwise to spend such resources as a consequence of residence restriction policies which have no track record of increasing community safety," board members wrote.

January 14, 2009 in Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Some choice quotes from the two opinions in Oregon v. Ice

For reasons I will explain in future posts, the Supreme Court's work today in the Apprendi-Blakely Sixth Amendment case of Oregon v. Ice (basics here) is fascinating, surprising and ultimately disappointing.  Before I get to hard-core commentary, however, it is useful to pull out the key quotes from the two opinions.

Let's start with the majority opinion, authored by Justice Ginsburg:

The question here presented concerns a sentencing function in which the jury traditionally played no part: When a defendant has been tried and convicted of multiple offenses, each involving discrete sentencing prescriptions, does the Sixth Amendment mandate jury determination of any fact declared necessary to the imposition of consecutive, in lieu of con-current, sentences?...

[T]win considerations — historical practice and respect for state sovereignty — counsel against extending Apprendi’s rule to the imposition of sentences for discrete crimes....

[L]egislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted our decision in Apprendi.   There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused....

States’ interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that Ice requests....

Members of this Court have warned against “wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.”  Cunningham, 549 U. S., at 295 (Kennedy, J., dissenting). The jury-trial right is best honored through a “principled rationale” that applies the rule of the Apprendi cases “within the central sphere of their concern.” 549 U. S., at 295. Our disposition today — upholding an Oregon statute that assigns to judges a decision that has not traditionally belonged to the jury — is faithful to that aim.

Now let's hear from the dissent, per Justice Scalia:

The rule of Apprendi v. New Jersey, 530 U. S. 466 (2000), is clear:  Any fact — other than that of a prior conviction — that increases the maximum punishment towhich a defendant may be sentenced must be admitted bythe defendant or proved beyond a reasonable doubt to a jury. Oregon’s sentencing scheme allows judges ratherthan juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since.  The Court’s justification of Oregon’s scheme is a virtual copy of the dissents in those cases....

We have taken pains to reject artificial limitations upon the facts subject to the jury-trial guarantee....

The decision to impose consecutive sentences alters the single consequence most important to convicted noncapital defendants: their date of release from prison.  For many defendants, the difference between consecutive and concurrent sentences is more important than a jury verdict of innocence on any single count: Two consecutive 10-year sentences are in most circumstances a more severe punishment than any number of concurrent 10-year sentences.

To support its distinction-without-a-difference, the Court puts forward the same (the very same) arguments regarding the history of sentencing that were rejected by Apprendi....

The Court’s reliance upon a distinction without a difference,and its repeated exhumation of arguments dead and buried by prior cases, seems to me the epitome of the opposite [of a "principled rationale" for applying Apprendi].  Today’s opinion muddies the waters, and gives cause to doubt whether the Court is willing to stand by Apprendi’s interpretation of the Sixth Amendment’s jury-trial guarantee.

UPDATE:  On the topic of choice quotes, the post by Kent at C&C about this case has the best turn of phrase to describe the holding: "Apprendi Sprawl Frozen in Ice."

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (17) | TrackBack

Fascinating SCOTUS split in rejecting Blakely's application to consecutive sentencing

The Supreme Court has today handed down its latest Blakely ruling with its decision in Oregon v. Ice.  Here is the early report from SCOTUSblog:

The Court has released the opinion in Oregon v. Ice (07-901), on whether judges may impose consecutive sentences based on facts neither found by the jury nor admitted by the defendant. The ruling below, which found for the defendant, is reversed and remanded. Justice Ginsburg wrote the majority opinion. Justice Scalia wrote a dissenting opinion, joined by the Chief Justice and Justices Souter and Thomas. The ruling is now available here.

The break down of the Justices in the 5-4 ruling is fascinating, and I am sure I will have a lot more to say about the Court's efforts here in future posts.

I suppose I need to start my commentary, however, by taking back this recent comment that the Supreme Court is most pro-defendant appellate court in the nation on sentencing issues.  But, of course, proving again that Blakely issues make for strange voting block, three supposedly liberal Justices (Breyer, Ginsburg and Stevens) are the key to the defendant's loss in Ice.

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (16) | TrackBack

Madoff mania continues as government presses bail issue

This new Reuters piece provides the latest news in the still on-going saga of Bernard Madoff's bail situation. Here are the basics:

Accused swindler Bernard Madoff will be back in court on Wednesday as U.S. prosecutors again try to persuade a judge to end his house arrest at his luxury apartment and toss him in jail.  A hearing is scheduled for 2:30 p.m. in Manhattan federal court....

The government wants Madoff jailed pending trial or a guilty plea, saying he had sent at least $1 million in valuables, including diamond watches, to family and friends in violation of a court order....

A judge on Monday rejected the government's request to jail Madoff, but prosecutors have appealed that ruling. The appeal will be heard by a different judge, U.S. District Judge Lawrence McKenna. Madoff "should not be trusted with a second chance to dissipate assets," Assistant U.S. Attorneys Marc Litt and Lisa Baroni wrote in appeal papers filed late on Tuesday....

Madoff investors are fuming that he remains on bail and holed up in his luxurious home. But legal experts say white-collar defendants typically are granted bail pending trial as long as they are not risks of flight or dangers to the community.

Whatever ruling comes from Judge McKenna, I suspect that the losing party might take this issue all the way up to the Second Circuit.

January 14, 2009 in White-collar sentencing | Permalink | Comments (3) | TrackBack