December 25, 2010
"Santa Was in Prison and Jesus Got the Death Penalty"
The title of this post come from the title of this holiday blog post at Mother Jones. Here is how it starts:
As Christmas is celebrated in Incarceration Nation, it’s worth remembering certain things about the two figures who dominate this holiday.
As more than 3,000 American sit on death row, we revere the birth of a godly man who was arrested, “tried,” sentenced, and put to death by the state. The Passion is the story of an execution, and the Stations of the Cross trace the path of a Dead Man Walking.
Less well know is the fact that Saint Nicholas, the early Christian saint who inspired Santa Claus, was once a prisoner, like one in every 100 Americans today. Though he was beloved for his kindness and generosity, Nicholas acquired sainthood not by giving alms, but in part by performing a miracle that more or less amounted to a prison break.
December 24, 2010
A fitting book for the holiday season
The problem of ‘justifying’ mercy is old, but it has resurfaced recently in light of debates over ‘restorative justice’ alternatives to state-imposed retributive punishment. We wonder whether a victim/offender reconciliation that does not involve a painful sentence can be just; we wonder whether an executive is ever right to pardon out of compassion; we wonder whether judges should have discretion to sentence leniently in cases where defendants are remorseful, have dependents, are ill, have reformed, or are community heroes. Within the retributive punishment tradition that understands punishment as some form of ‘just deserts’ based on the crime alone, all of these exercises of leniency are illegitimate.
This book challenges this orthodoxy at its Kantian conceptual roots, rereading the philosophical tradition to argue that mercy is the prerequisite for just punishment, rather than its nemesis. The first step is taking seriously the idea that humans live with each other in time, not as isolated "reasoners" or "choosers" in a conceptual eternity.
From this insight follows an account of law as common law, not universal rules; an account of punishment as a response to wrongs that resettles relationships for the future in conditions of uncertainty; and an understanding of mercy as a fundamental ethical requirement never to give up on each other. By unearthing an alternative to our "just deserts" apologies for a cruel and broken penal system, the hope is that all the rich institutional possibilities imagined by the restorative justice movement will become more conceptually acceptable and available.
Though this book is not focused on the form of mercy represented by grants of clemency, this holiday season is seeing its share of notable clemency stories. As always, P.S. Ruckman has the best coverage of these clemency developments at his blog Pardon Power.
December 23, 2010
"Pat Robertson Questions Prison for Pot Convictions"
The title of this post is the headline of this notable new piece (with a video clip) from the New York Times that reports on an interesting early Christmas present for supported of marijuana legalization. Here are the particulars:
Pat Robertson, the televangelist who once ran for president, said on his show “The 700 Club” that he thought marijuana should be legalized....
“I’m not exactly for the use of drugs, don’t get me wrong, but I just believe that criminalizing marijuana, criminalizing the possession of a few ounces of pot, that kind of thing, it’s just, it’s costing us a fortune and it’s ruining young people,” Mr. Robertson said. “Young people go into prisons, they go in as youths and come out as hardened criminals. That’s not a good thing.”...
For Mr. Robertson, the issue appears to be the effect prison terms have on young people who have been arrested for what he said was taking “a couple of puffs” of marijuana. No word, though, if he plans to use his Christian Broadcasting Network to advocate for legalization anytime soon.
UPDATE: A spokesman for Mr. Robertson e-mails to say that he did not intend to suggest support for the legalization of marijuana, but rather to question the severity of the government’s punishments for those who use or possess a small amount of the drug. Here is the statement, from the spokesman, Chris Roslan:
“Dr. Robertson did not call for the decriminalization of marijuana. He was advocating that our government revisit the severity of the existing laws because mandatory drug sentences do harm to many young people who go to prison and come out as hardened criminals. He was also pointing out that these mandatory sentences needlessly cost our government millions of dollars when there are better approaches available. Dr. Robertson’s comments followed a CBN News story about a group of conservatives who have proven that faith-based rehabilitation for criminals has resulted in lower repeat offenders and saved the government millions of dollars. Dr. Robertson unequivocally stated that he is against the use of illegal drugs.”
Is the Obama Administration about to get the federal death penalty going again?
The question in the title of this post is prompted by this intriguing new blog entry from Josh Gerstein at Politico.com titled "Obama administration readies first execution." Here are the basics:
The Justice Department is making preparations for what could be the first federal execution under President Barack Obama, according to a new court filing.
The Bureau of Prisons gave notice to a federal judge Wednesday that it intends to set an execution date for Jeffery Paul, 34. Paul was convicted in 1997 and sentenced to death for the robbery-murder of an 82-year-old National Park Service employee, Sherman Williams, on federal land in Hot Springs, Ark., in 1995.
Plans for the execution were disclosed by Justice Department lawyers in a lawsuit pending in Washington over federal lethal injection procedures. Several federal death row prisoners are covered by a stay entered in that suit, but Paul is not among them, since U.S. District Court Judge Richard Roberts denied Paul permission to join the case earlier this year, saying he had waited too long.
"Paul is not a party to this suit nor has he received a stay barring his execution in another jurisdiction. Given this posture, the U.S. Department of Justice respectfully informs the Court of its intent to set an execution date for Paul. ... Any date set for Paul’s execution will be at least 120 days after the filing of this Notice," said the filing submitted by the U.S. attorney for the District of Columbia, Ronald Machen....
Three executions took place in the federal system under President George W. Bush, including that of Oklahoma City federal building bomber Timothy McVeigh in 2001. The last execution was in March 2003. Before McVeigh was put to death by lethal injection, the federal government went almost four decades without carrying out an execution.
[A] 120-day period before an execution [following this notice] is designed to allow for court challenges as well as the filing of a commutation petition with the president.
For reasons that were never well explained, the Bush Administration allowed for the postponement of all executions based on lethal injection litigation over the three-drug protocol, and it never sought to get back into the execution business after Baze ruled this protocol was constitutional. It remains unclear, now two years into the Obama Administration, what is going on with this litigation. Nevertheless, this new report from Politico suggests that somebody in the Justice Department is thinking about having the wheels of capital federal justice moving again.
Congrats to the new members of US Sentencing Commission now in place for the new year
I have heard on very good authority that, in all the flurry of lame-duck activity, yesterday the U.S. Senate confirmed Judge Patti B. Saris as Commissioner and Chair of the United States Sentencing Commission and Dabney Friedrich as Commissioner on the United States Sentencing Commission. (Both Judge Saris and Commissioner Friedrich had been nominated by President Barack Obama on April 28, 2010.)
In addition to expressing hearty congratulations to these new and continuing members of the USSC (and hearty thanks to the folks moving on), I wanted in this post to suggest that this important development should help ensure that the reform momentum of the USSC will be able to continue into 2011. Of course, just where that reform momentum ought to be heading is the big, hard question as we enter a new year (and then seventh year of a post-Booker advisory federal sentencing guideline system).
UPDATE: The US Sentencing Commission's website now has this official press release noting the background of these two newly confirmed commissioners and also noting the others now serving on the commission:
By statute, the Commission is composed of seven voting members and two nonvoting ex-officio members. No more than four commissioners may be members of the same political party, and at least three must be federal judges. Commissioner terms run for six years and a commissioner may serve no more than two full terms. Other voting members of the Commission include Vice Chair William B. Carr, Jr. of Pennsylvania, Vice Chair Ketanji B. Jackson of Maryland, Chief Judge Ricardo H. Hinojosa of the United States District Court for the Southern District of Texas, and Commissioner Beryl A. Howell of the District of Columbia, who was unanimously confirmed yesterday as a United States district judge for the District of Columbia. The two non-voting members of the Commission are Isaac Fulwood, Jr., chairman of the United States Parole Commission, and Jonathan J. Wroblewski, representing the Office of the Attorney General, United States Department of Justice.
December 22, 2010
First Circuit uses Ice to cool claim that Apprendi applies to fine fact-findings
Hard-core fans (or should I say foes) of the Sixth Amendment jurisprudence of Apprendi get a little holiday present from a panel of the First Circuit today in US v. Southern Union Company, No. 09-2403 (1st Cir. Dec. 22, 2010) (available here), wherein the court addresses "whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines." Here is part of the panel's extended discussion of this issue:
Southern Union argues that the question of whether Apprendi applies is resolved by the plain language of the Supreme Court's opinion in that case, which states that the rule covers "any fact that increases the penalty for a crime" beyond the statutory maximum. Apprendi, 530 U.S. at 490 (emphasis added). If Apprendi applies only to facts increasing terms of incarceration, and not to criminal fines, Southern Union argues, the Court's use of the broad word "penalty" becomes superfluous, and corporations, which cannot be incarcerated, are left outside Apprendi's protection....
The prosecution argues that both the reasoning and the express language in Oregon v. Ice, 129 S. Ct. 711 (2010), mean that Apprendi does not apply to criminal fines, which have historically been within the discretion of judges, and not assigned to juries for determination....
The prosecution argues that we should follow not only the method of historical analysis endorsed by Ice but also the opinion's express language about criminal fines. The Court made an express statement in Ice, albeit in dicta, that it is inappropriate to extend Apprendi to criminal fines. Observing that many states permit judicial factfinding on matters "other than the length of incarceration," the Court explained that "[t]rial 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 attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution." Id. at 719. The Court warned that applying Apprendi to these types of determinations "surely would cut the rule loose from its moorings."...
Even assuming fines are similar to sentences of incarceration, this argument misses the point of the analogy and the flow of the logic used by the Ice majority. The historical record presented in Ice showed that at common law, judges chose within their unfettered discretion whether to impose consecutive or concurrent sentences, and consecutive sentences were the default rule. Ice, 129 S. Ct. at 717. The prosecution here presents strong evidence of historic practice that at common law, judges' discretion in imposing fines was largely unfettered. The Court in Ice specifically cautioned that it would be senseless to use Apprendi to nullify sentencing schemes in which legislatures have curtailed the discretion judges had at common law....
To the extent that excluding criminal fines from Apprendi requires a more restrained view of the rule's scope than did the Court's previous Apprendi-line decisions, it is the Supreme Court in Ice that has imposed the restraint.
Eleventh Circuit panel sticks to tough plain error rule for sentencing appeals
In a ruling that may well drive some sentencing advocates a little crazy, the Eleventh Circuit in US v. Rodriguez, No. 08-16696 (11th Cir. Dec. 22, 2010) (available here), has refused to relax its plain error review rules for sentencing claims in certain settings. Here is how the opinion starts:
This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.
Drunk driver who killer Angeles pitcher and others gets 51 years in prison
As detailed in this local article, a "construction worker who was on probation for felony drunken driving when he ran a red light and killed rookie Los Angeles Angels pitcher Nick Adenhart and two other people was sentenced Wednesday to 51 years to life in prison." Here is more:
A judge sentenced Andrew Gallo, 24, amid sobbing from the victims' family and friends who earlier heard him apologize for the 2009 crash. Prosecutors said Gallo's blood-alcohol level was nearly three times the legal limit when he blew through a red light at an Orange County intersection on April 9, 2009, and T-boned the car carrying Adenhart and three friends.
Also killed in the crash were 20-year-old Courtney Stewart and 25-year-old Henry Pearson. A fourth passenger, Jon Wilhite, was severely injured. Before sentencing. Stewart's sobbing father, Chris Stewart, told the judge each day that goes by "is one more day I'm without my daughter."
Gallo was frequently moved to tears by the statements from family members of victims. He acknowledged before sentencing that he had taken the three lives and ruined his own after getting behind the wheel after hours of drinking....
Gallo was convicted in September of three counts of second-degree murder and single counts of drunken driving, hit-and-run driving, and driving under the influence of alcohol and causing great bodily injury. He was sentenced by Judge Richard Toohey to 15 years to life on each of the murder counts, with the additional six years added for the other crimes. Prosecutors had sought the terms of 15 years to life....
Gallo's attorney had called for one sentence of 15 years to life, saying her client never intended to hurt anyone. Attorney Jacqueline Goodman said in court papers that Gallo's stepbrother was supposed to be the designated driver that night, but that Gallo took the wheel when his stepbrother became too drunk to drive.
"Obama should commute the sentences of many people serving egregiously long sentences for crack cocaine offenses"
The quote in the title of this post is a line from this CNN commentary by Kemba Smith Pradia, which is headlined "My life saved by reprieve of 24-year sentence for crack." Here is how it begins:
Ten years ago, days before Christmas, President Bill Clinton changed my life forever. I was in federal prison, serving the seventh year of a 24-year sentence for a first-time nonviolent crack cocaine offense.
Clinton's mercy and acknowledgement that my sentence was unjust led him to grant me a commutation. Had he not done so, I would be in prison until 2016. On December 22, the anniversary of my release, I will join others in a fast for justice to honor those in prison who deserve the same relief from their long sentences for low-level drug offenses.
Many things have changed in the last decade. I graduated from college, attended law school, got married, raised my son who was born while I was incarcerated and gave birth to a daughter. I also established my own foundation to give hope to children of incarcerated parents.
At the same time, the sentencing law that I was convicted under came under intense scrutiny. This year, President Barack Obama signed the Fair Sentencing Act to limit the harsh mandatory minimum sentences associated with low-level crack cocaine offenses. Progress has been made.
But also since my release, an estimated 5,000 men and women have gone to federal prison each year for a crack cocaine offense. They have been subject to a sentencing structure that the U.S. Sentencing Commission, an independent judicial body, said applied "most often to offenders who perform low-level trafficking functions, wield little decision-making authority, and have limited responsibility."
Indeed, I went to prison for being complicit in my abusive boyfriend's crack cocaine trafficking operation. Prosecutors in the case acknowledged that I never sold, handled or used any drugs. Just as Clinton did 10 years ago, Obama should commute the sentences of many people serving egregiously long sentences for crack cocaine offenses.
Lots of litigation around California sex offender residency restrictions
This local California article, which is headlined "Court challenges mount against sex offender law," effectively reports on the copious litigation surrounding the state's sex offender residency restrictions. Here are some details:
Hundreds of paroled sex offenders are winning reprieves from a ban against their living near schools or parks as they flood local courts with constitutional challenges to the most controversial part of Jessica's Law.
Judges in Contra Costa and elsewhere have routinely issued stays permitting sex offender parolees to ignore the ban on their living within 2,000 feet of a school or park where children "regularly gather," pending rulings in their cases. The slow pace of those challenges means the stays could last until their parole terms expire and the restrictions no longer affect them....
The flurry of court actions adds a new wrinkle in an ongoing debate over the residency ban's effect on public safety, and whether it's worth the added strain on parole resources. A statewide task force last month found that the ban has led to a dangerous 24-fold increase in homeless sex offenders and recommended repealing the voter-approved limits....
The bulk of legal challenges has arisen in Southern California, where about 850 paroled sex offenders have filed petitions in Los Angeles and San Diego counties, most of them after a state Supreme Court decision in February. The court upheld the 2,000-foot rule against claims that it amounts to illegal, ex post facto punishment of parolees who committed their sex crimes before the law passed. But it left local judges to sort out, case by case and county by county, whether the restriction amounts to unconstitutional banishment, or whether it is unconstitutionally vague....
State corrections officials said they have not tallied how many paroled sex offenders are now free from the 2,000-foot rule.... The challenges do not affect conditions that parole supervisors can impose based on individual circumstances. Nor do they affect a different law that prohibits convicted child molesters who are deemed high-risk sex offenders from living within a half-mile of a school.
Growing pressure to overturn the 2,000-foot rule rankles the author of Jessica's Law. Outgoing state Sen. George Runner, R-Antelope Valley, said he is pushing legislation that would protect it by allowing local judicial panels to adjust the limits but not eliminate them. "I don't think the voters are concerned whether it's too hard (to find housing). It's whether it's possible," Runner said. He downplayed the notion that homeless sex offenders are more likely to commit new sex crimes, particularly now that sex offender parolees all wear GPS anklets.
"We are not aware of an individual who's on GPS, who is transient, who has committed an illegal sexual act," he said. "So we believe at this point it's a problem that they can't find a place to live. I'm sure that's a personal hassle for them, but that's not my concern."
In the meantime, few of the state's 58 counties are attempting to fully enforce the 2,000-foot rule on sex offenders under court probation, said probation officials. "The bottom line is we're doing everything we can with the limited resources we have," said Philip Kader, county probation officer in Contra Costa. The department, which oversees about 140 sex offenders on probation, has sustained steep cutbacks and does not adhere to the 2,000-foot rule, unless a judge orders it, Kader said.
December 21, 2010
WSJ notes dispute over application of FSA to pending cases
The Wall Street Journal has this new piece noting the on-going legal battles over applying the new crack law to federal cases in the sentencing pipeline. The piece is headlined "Crack Sentences Still Tough: Hard Time Given Even for Small Offenses Committed Before Rules Eased in August," and here are excerpts:
The Fair Sentencing Act passed this summer knocked down the requirement of long prison sentences for possession of crack cocaine, but a quirk in how the law was written has resulted in some defendants being sentenced under the old rules — and the situation could continue for years.
Lawmakers who backed the change, with the support of the attorney general and federal sentencing officials, aren't pleased with the outcome. They said the new guidelines rectified an injustice born during the drug wars of the 1980s. Instead, the snafu has created a parallel universe where defendants face different rules for the same crimes — sometimes in front of the same judge — because their offenses were committed at different times.
The cause of the problem: Congress didn't say whether the Act should apply to crimes committed before Aug. 3, when it was signed into law. Penalties for any repealed law remain in place for acts committed under that statute, unless lawmakers "expressly" establish otherwise, according to a federal statute....
But prosecutors and judges have always had some discretion in the crimes that are charged and sentences meted out. Congressional aides said the thinking of lawmakers who supported the law without a retroactive provision was that most prosecutors and judges would opt to follow the new, more lenient rules, even for acts committed before Aug. 3....
Nearly 5,700 defendants each year are sentenced for crack-cocaine crimes, according to data from the U.S. Sentencing Commission, the agency that sets sentencing guidelines for judges....
Lawmakers didn't address whether the law should be retroactive out of concern that a battle over this issue would scuttle the tenuous deal that was reached to pass it, congressional aides said. Opponents of making the law retroactive argued that doing so would lead to a flood of appeals from people already sentenced....
Most judges are issuing sentences under the old crack-cocaine law for crimes committed before Aug. 3. Earlier this month, Hartford, Conn., U.S. District Judge Christopher Droney sentenced a defendant to five years for possessing 14 grams of crack, after prosecutors argued that he had no alternative. Judge Droney said at the sentencing that he likely would have been more lenient if he had any leeway....
In Maine, U.S. District Judge D. Brock Hornby recently broke from the pattern, ruling in October that he would sentence William Douglas under the new law for an older crime. Mr. Douglas was convicted of possessing 113 grams of crack. Under the old rules he faced 10 years in prison.
In his ruling, Judge Hornby rejected the argument that the harsher law should be imposed, saying, "Congress stated its goal was to restore fairness to Federal cocaine sentencing. But what possible reason could there be to want judges to continue to impose sentences that are not fair over the next five years while the statute of limitations run?"
Prosecutors filed notice they planned to appeal.
Some recent related posts:
- Adding my two cents concerning application of the FSA to pending cases
- A few more thoughts on applying the FSA to not-yet-sentenced defendants
- New USDC opinion applying new FSA law to not-yet-sentenced defendants
- Seeking ground reports on the FSA's application to not-yet-sentenced cases
- Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
- Does Abbott provide new and added support for applying the FSA to pending cases?
- Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
- Federal sentencing litigation at its absolute finest
Newest BJS data on correctional population shows historic first decline
Perhaps finally providing that what goes up must eventually come down even in incarceration nation, the Bureau of Justice Statistics announced today via this press release "the first measured decline in the total number of adults under correctional supervision [in the United States] since BJS began reporting these populations in 1980." Here is more:
One in 32 adults, or about 3.1 percent of U.S. adult residents, was under correctional supervision at yearend 2009, down slightly from the rate of supervision in 2008.
Although comparatively small, decreases in the probation population (down by 40,079 offenders) and the parole population (down by 5,526 offenders) were the first observed decreases since BJS began annual data collections on these populations in 1980. At yearend 2009, 4,203,967 adults were on probation, and 819,308 were under parole or other post-custody supervision....
Among incarcerated offenders, the number of jail inmates totaled 760,400 at midyear 2009 (down 2.2 percent from 2008). The number of prisoners under the jurisdiction of state and federal correctional authorities increased by 0.2 percent (3,981 prisoners) during 2009 to reach 1,613,740 at yearend.
The growth in the prison population during 2009 was the slowest annual increase in the current decade and marked the third consecutive year of a declining rate of growth in the prison population. While the federal prison population increased by 3.4 percent (up 6,838 prisoners), the state prison population had the first measured decline (down 0.2 percent or 2,857 prisoners) since 1977.
Sentencing nuts and/or data junkies eager in mining these numbers further should be sure to check out this series of new reports released today by BJS:
Correctional Populations in the United States, 2009: Presents summary data on the number of adults under some form of correctional supervision in the United States at yearend 2009. Correctional supervision includes adults supervised in the community on probation or parole and those incarcerated in prison or local jails.
Probation and Parole in the United States, 2009: Presents the number of adults under community supervision (probation or parole) at yearend 2009 and the rate of change in both populations during the year.
Prisoners in 2009: This annual report presents data on prisoners under jurisdiction of federal or state correctional authorities on December 31, 2009, collected from the National Prisoner Statistics series.
"An outlet, an outlet ... my kingdom for an outlet for my GPS monitor!"
The silly riff on a famously sad Shakespeare quote was inspired by this ruling today from the Supreme Judicial Court of Massachusetts. The case, as the court explains, brings "more fully into view a tension between mandatory GPS monitoring of sex offenders released on probation ... and the practical reality of homelessness -- a circumstance facing an increasing number of former sex offenders." Here are the basics from this local piece about the ruling, which is headlined "SJC: Homeless sex offenders can't be blamed for not charging GPS devices":
Convicted sex offenders should not be punished for violating the terms of their probation if they can't find a power outlet to charge their GPS monitoring devices because they're homeless, the state's highest court said today.
The Supreme Judicial Court ruled today in a case involving John W. Canadyan Jr., who was released on probation with the requirement, among other things, that he wear a GPS monitoring device. But after Canadyan's release from prison he was living in a homeless shelter that could not provide residents with access to a reliable electrical outlet necessary for operating the GPS device, the court said.
At a probation revocation hearing, a judge found that Canadyan had violated the conditions of his probation because he had failed to make sufficient efforts to find a job that would have allowed him to find housing -- and get access to a power outlet.
But the SJC reversed that ruling. "In these circumstances, where there was no evidence of wilful noncompliance, a finding of violation of the condition of wearing an operable GPS monitoring device was unwarranted, and is akin to punishing the defendant for being homeless," the court said.
December 21, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack
Split Missouri Supreme Court upholds LWOP adult sentence for 15-year-old cop killer
The Missouri Supreme Court today in a split 4-3 ruling upheld against various challenges an LWOP sentence for a 15-year-old murderer in Missouri v. Andrews, No. SC91006 (Mo. Dec. 21, 2010) (available here). Here is how the majority opinion gets started:
Antonio Andrews appeals the jury's verdict finding him guilty of first degree murder for shooting and killing a police officer and the sentence imposed on him for that crime of life without parole. This case came directly to this Court because Andrews challenges the constitutional validity of two Missouri statutes. He challenges Missouri's juvenile-certification statute, § 211.071, RSMo 2000, as violating his right to a jury trial in a criminal prosecution under the Sixth Amendment as applied in Apprendi v. New Jersey, 530 U.S. 466 (2000). He also challenges the validity of the mandatory sentencing of a minor to life without parole for committing first degree murder as prescribed by § 565.020, RSMo 2000, as violating the Eighth Amendment prohibition against cruel and unusual punishment. In addition, Andrews appeals the jury's verdict claiming that there was insufficient evidence from which a reasonable jury could conclude Andrews committed first degree murder. Finally, Andrews claims the trial court erred by overruling his motion in limine, which sought to prevent uniformed police officers from being present during the jury trial. Affirmed.
A lengthy dissenting opinion by Justice Wolff asserts that the defendant in this case had his Eighth Amendment rights violated. He states that "[s]entencing juvenile offenders to life without the possibility of parole is cruel and unusual punishment because society’s standards have evolved to prohibit it." Another lengthy dissenting opinion by Justice Stith finds asserts that the defendant in this case had his Sixth Amendment rights violated. She states:
When a court decides that a juvenile is to be tried as an adult, Apprendi requires that the Sixth Amendment command of a jury trial be obeyed. The jury’s verdict alone in this prosecution is insufficient to punish a 15-year-old defendant such as Antonio with a lifetime in prison. To prosecute Antonio as an adult, and to impose a sentence of life without parole, the additional fact-finding mandated by Missouri’s juvenile certification process also is necessary. To allow this additional fact-finding to be made by a judge and not by a jury violates the defendant’s fundamental right to a jury under the Sixth Amendment of the United States Constitution.
It will be very interesting to see if four Justices of the US Supreme Court might have an interest in taking up either of the (crisp?) constitutional issues presented by this case.
NJ Governor Christie commutes controversial gun possession sentence
A helpful reader alerted me to a notable clemency development from the Garden State, which is reported in this Fox News piece. Here are the basic from the start of the news report:
A man given seven years in prison after being found with two guns he purchased legally in Colorado has had his sentence commuted, New Jersey Gov. Chris Christie announced Monday.
The case of Brian Aitken, 27, had become a cause célèbre among gun-rights advocates. On Jan. 2, 2009, Aitken, an entrepreneur and media consultant with no prior criminal record, muttered to his mother that life wasn't worth living after a planned visit with son was abruptly canceled at the last minute. Aitken then left his mother's home in Mount Laurel as she called police, who later found two locked and unloaded handguns in the trunk of his car.
Aitken had purchased the guns legally in Colorado, and he passed an FBI background check when he bought them, according to his father, Larry Aitken. Brian also contacted New Jersey State Police before moving back back to the Garden State to discuss how to properly transport his weapons. But despite those good-faith efforts, Larry Aitken said, Brian was convicted on weapons charges and sent to prison in August.
Judge James Morley would not allow the argument in trial earlier this year and Christie later declined to reappoint the judge due to an unrelated case.
According to an order for commutation of sentence released by Christie on Monday, Aitken was to be released from custody as soon as administratively possible. The order is subject to revocation at any time.
The official Order for Commutation of Sentence can be found at this link.
Lengthy discussion of modern sentencing challenges by split Second Circuit
The Second Circuit has an extended discussion of a variety of sentencing issues today in US v. Preacely, No. 09-2580 (2d Cir. Dec. 21, 2010) (available here). Providing a sign of the modern federal sentencing times, all three judges on the panel in Preacely author opinions to explain their views of how to review a below-guideline sentence imposed in a seemingly routine drug case.
Tellingly, Judge Lynch authors a concurrence to "put into ordinary language the common-sense basis of the sometimes arcane or technical analysis required by our somewhat complex law of sentencing." And Judge Raggi's closing paragraph in her dissent effectively details what all the sentencing hub-bub is about:
Like my colleagues, I recognize that Preacely received a severe sentence despite his significant cooperation and efforts at reformation. I also recognize that other judges might have accorded these factors greater weight in mitigating the seriousness of Preacely’s crime and his risk of recidivism. What I do not recognize is any basis in the record for thinking that the balance struck by the district court is infected by procedural error, specifically, by possible misapprehension as to the court’s authority to depart from the Career Offender Guideline. Thus, while I see no reason to remand even for clarification, I specifically dissent from the majority’s decision to vacate and to order resentencing.
DPIC releases year-end death penalty report for 2010
As is its tradition every December, the Death Penalty Information Center has now released its annual year-end report on death penalty developments in 2010. This DPIC report, which has in bold on its first page the claim that "As Use of the Death Penalty Continues to Decline, a Majority of Americans Support Repeal; Executions Drop 12% -- Death Sentences Remain Near Historic Lows," once again marshals the latest death penalty data to claim that the capital punishment is dying a slow death in the United States. Here are parts of the report's introduction:
The death penalty continued to be mired in conflict in 2010, as states grappled with an ongoing controversy over lethal injections, the high cost of capital punishment, and increasing public sentiment in favor of alternative sentences. Executions dropped by 12% compared with 2009, and by more than 50% since 1999. The number of new death sentences was about the same as in 2009, the lowest number in 34 years....
Although 35 states retain the death penalty, only 12 carried out executions in 2010, mostly in the South, and only 7 carried out more than one execution. Since the death penalty was reinstated in 1976, 82% of the executions have been in the South. California has not had an execution in almost 5 years, and the same is true for North Carolina, Maryland, Pennsylvania, and several other states.
I see the capital punishment facts a bit differently, as it seems to me that we have achieved a point of relative stability around the use of the ultimate punishment in the US. Over the last five years, the US has had right around 50 executions and a few more than 100 death sentences imposed each and every year. Whether these numbers for executions and death sentences are idea might be subject to lots of debate, but I think it is pretty clear that they represent the new normal for capital punishment in the United States.
My view my be influenced by the reality that Ohio has been a death penalty growth state in recent years. My local paper has this new piece, headlined "Ohio only state to execute more in 2010," discusses this reality.
December 20, 2010
Any thoughts or insights about how Obama's lower court judges are doing on sentencing issues?
The question in the title of this post is prompted in part by this new AP piece, which is headlined "Quiet deal on Obama's judge nominees in the Senate." Here are the basics from the article:
After a months-long blockade, Senate Republicans have agreed to let at least 19 of President Barack Obama's non-controversial judicial nominees win confirmation in the waning days of the congressional session in exchange for a commitment by Democrats not to seek votes on four others, according to officials familiar with the deal.
Among the four is Goodwin Liu, a law school dean seen as a potential future Supreme Court pick, whose current nomination to the 9th U.S. Circuit Court of Appeals in San Francisco has sparked strong criticism from Republicans.
As part of the arrangement, the Senate has approved 10 judges in the past few days without a single dissenting vote. One of them, Albert Diaz, had been awaiting confirmation to the 4th Circuit Court of Appeals in Richmond, Va., since clearing the Judiciary Committee in January.
The agreement was worked out between Senate Majority Leader Harry Reid and his Republican counterpart, Sen. Mitch McConnell of Kentucky, with the knowledge of the White House, officials said. Spokesmen for the two Senate leaders declined comment....
In addition to the 10 nominees confirmed since Thursday, the Senate is expected to approve at least nine more before lawmakers adjourn for the year. All have been pending in the Senate since Sept. 23 or before. Another 15 have been awaiting a vote for less than a month.
The unconfirmed nominations will expire when Congress adjourns for the year. Obama is free to reappoint them, but Republicans will have more seats in the Senate in 2011, and there is no assurance the most controversial among them would be approved quickly, if at all. Apart from Liu, they include Edward Chen, Louis B. Butler Jr. and John J. McConnell, Jr., all nominated to become U.S. District Court judges.
I have not kept up closely with all the lower court judicial nomination debates lately, though I continue to believe that the judges President Obama appoints to the lower courts likely will have a huge impact on the future of sentencing law and policy. I am aware of a few notable sentencing ruling coming from a few of Obama's lower court appointments, but I am sure many Obama newer judges have just barely started developing a significant record on various sentencing issues. Consequently, in the wake of this new nominee news, I thought it might be useful to encourage readers to chime in with any special thoughts or insights on this front.
Thorough and thoughtful pitch for sentencing reforms in Arizona
As detailed in this op-ed and in this press release, Professor Carissa Byrne Hessick at Arizona State University is making a thorough and thoughtful pitch for sentencing reforms in Arizona. Here is part of Hessick's op-ed:
As part of the new Public Policy Incubator Program at Arizona State University's Sandra Day O'Connor College of Law, several students and I recently wrote a report on sentencing reform in Arizona. Drawing on recent reforms in states like Texas — a state that since 2005 has reduced both its spending on prisons and its crime rates — the report makes a number of recommendations.
Those recommendations include increasing diversion programs, establishing mental-health courts, expanding drug treatment and enlarging the ability of prosecutors and defense attorneys to plea bargain.
The report also recommends the creation of an Arizona State Sentencing Commission. The commission would collect data about crime in Arizona, study successful sentencing-reform programs in other states, and suggest further changes to the Legislature. As many other states have recognized, an objective sentencing commission is necessary to prevent unsubstantiated beliefs about the criminal-justice system from stopping the development of sentencing policies that are economically wise and reduce crime.
The House of Representatives and the Senate should give sentencing-reform recommendations the serious consideration that they deserve, rather than resorting to the unthinking tough-on-crime politics that created our present problems.
And here is the start of the press release from ASU, followed by a link to the extensive report referenced here:
The Public Policy Incubator Program at the Sandra Day O’Connor College of Law at Arizona State University, tackling the issue of the state’s skyrocketing prison costs and a high crime rate, has released a report, “Sentencing in Arizona: Recommendations to Reduce Costs and Crime.”
The report proposes several changes, including increasing pretrial diversion programs, expanding mandatory probation for drug possession, requiring drug treatment programs to use practices proven to reduce repeat offenses, establishing a statewide system of mental health courts with specialized public defenders to deal with mentally ill defendants, and encouraging plea bargaining. It also suggests creation of a Sentencing Commission to collect data, study successful sentencing reform in other states and suggest further changes to the Legislature.
“Adopting these proposals will not only reduce the costs of incarceration,” the report states. “In reducing recidivism, they will also reduce the other costs associated with crime, such as the costs of court, law enforcement, and the damage suffered by crime victims.”
Read the report here.
More great news on crime rates from the FBI
We’ve just released our first peek into crime in 2010 — with a snapshot of the first six months of the year.
The early returns are encouraging. According to the Preliminary Semiannual Uniform Crime Report, January-June, 2010, the nation saw a 6.2 percent decrease in the number of reported violent crimes and a 2.8 percent decrease in the number of reported property crimes compared to data for the same time frame during 2009.
The report specifically covers the violent crimes of murder, forcible rape, robbery, and aggravated assault ... and the property crimes of burglary, larceny-theft, and motor vehicle theft. It also includes arson, which is considered a property crime but is tracked separately for this report.
Some of the preliminary findings:
- Reported incidents of violent crime as a whole decreased in all four regions of the country — falling 0.2 percent in the Northeast, 7.2 percent in the Midwest, 7.8 percent in the South, and 7.2 percent in the West.
- In the Northeast, reported incidents of murder were up 5.7 percent, forcible rapes were up 1.1 percent, and aggravated assaults were up 2.4 percent.
- Reported incidents of property crime as a whole declined in all four regions of the country — dropping 0.2 percent in the Northeast, 2.5 percent in the Midwest, 3.6 percent in the South, and 3.1 percent in the West.
- In the Northeast, however, reported incidents of burglary rose 3.9 percent.
- Population-wise, cities with 500,000 to 999,999 residents saw the greatest decline in reported violent crimes (8.3 percent) and in property crimes (4.8 percent).
Since 1930, the FBI has been tasked with collecting, publishing, and archiving reliable uniform crime statistics for the nation. Our hope is that this report will continue to assist community leaders and law enforcement managers with formulating crime-fighting and crime prevention strategies....
As always, we caution against drawing conclusions about specific locations by making direct comparisons between cities. Valid assessments are only possible by carefully analyzing the range of unique conditions affecting each local law enforcement jurisdiction.
This continuation of the great crime decline is notable and exciting for lots of reasons. First, crime rates in 2009 were already relatively low (especially compared to crime rates in the 1980s and 1990s), and yet further reductions were achieved in 2010. Second, given that the economy has not been great and that many states have been taking steps to reduce their incarceration rates, there were crime rate reductions in 2010 despite the presence of legal and social factors that many folks believe contribute to crime increases. Third, low crime rates should help skittish politicians feel more comfortable backing "smart on crime" policy initiatives over the "tough on crime" political rhetoric.
"Think outside the prison walls"
The title of this post is the headline of this Indianapolis Star editorial endorsing proposals to restructure Indiana's sentencing system. Here are excerpts:
Gov. Mitch Daniels' endorsement of proposed corrections reforms should add needed momentum to legislative action that is long overdue.
The details will be devilish, of course, as the Indiana General Assembly sets about overhauling a penal code that's nearly four decades old. More than 100 laws have been passed in that span that have lengthened prison sentences, and not a one that has taken the other direction.
The result: Indiana's prison population has soared in this decade while those of neighboring states have grown only modestly. The same is true of costs, which are projected to reach $1 billion a year by 2017. This, in a state enduring serial revenue shortfalls....
Reduced and alternative sentencing for nonviolent offenders is the key recommendation in a detailed report from The Pew Center on the States and the Council of State Governments Justice Center.... The merits of alternatives to incarceration are manifest when it comes to reclaiming lives. Even if that were not enough to move lawmakers from their politically comfortable get-tough posture, the monetary cost of locking up nearly 30,000 Hoosiers ought to compel them to think and act beyond the walls.
This piece from another local paper, which is headlined "Panel recommends graduated sentencing for drug, theft crimes," provides more details on the reform proposals being discussed in Indiana. It also highlights that political rhetoric might still get in the way of needed policy reforms:
Gov. Mitch Daniels said he supports sentencing changes that save money and reduce prison population growth. But [state Rep. Linda] Lawson, deputy leader of House Democrats, said she's not sure the restructuring plan will be approved by the Republican-controlled General Assembly, even with the Republican governor's endorsement.
"I can see right now several legislators getting up on the House floor and holding direct-mail pieces and saying, 'See this right here; if you vote for this you're going to be soft on crime and they're going to do a piece of literature on you that's going to look just like this,'" Lawson said. "It just depends on how persuasive those legislators are.
Incoming California AG plans to shake up state's approach to crime and punishment
Yesterday's Los Angeles Times had this notable piece about California's new Attorney General-elect, which is headlined "The time may be right for Kamala Harris; She hopes the tough economy, shifting public opinion and her savvy transition team will bolster her prison reform goals." Here are snippets from the piece:
Kamala Harris, the state's next attorney general, last week announced a transition leadership team that was a marvel in its political heft... [which] underscored Harris' intent to ... upend decades of California attitudes about crime and punishment.
Along with some of the better-known names were a number of reformist police chiefs, like Los Angeles' former leader William Bratton, San Francisco's George Gascon and Oakland's Anthony Batts, who in the future may serve as symbolic assurance to voters as Harris works to make the criminal justice system reform criminals rather than lock them up perpetually.
Californians have been far more ensconced in the lock-'em-up camp, of course, loading ballots with measures to extend sentences and preclude judicial flexibility. But Harris believes that she has a new and powerful ally: the foundering economy.
Harris, currently San Francisco's district attorney, has made no secret of her desire to shake up the prison system. Nine days before the election, from the pulpit of Greater Zion Church in Compton, she mocked those who called her views "radical."
"We need to incorporate that age-old concept of redemption into the work that we do in the criminal justice system in California," she said, to murmurs of support from the congregants. "It is a broken system and there has to be reform…. Yes, I am radical in my belief in what we can do to improve the system. How we can change without being caught up and burdened with just a blind adherence to tradition. How we can be smart on crime and not just talk about 'Are you soft? Are you tough?'"...
"Smart on Crime" is something of a Harris franchise, the name of her 2009 book. In it, and during her campaign, Harris argued that criminal justice money is wasted on the "revolving door" that prison has become as 70% of the 120,000 convicts released annually end up being caught committing new crimes.
She believes that prison should be the punishment for serious offenders and that greater pains should be taken to prod milder offenders with education, counseling, probation and other community-based support. "I firmly believe in and advocate accountability and consequences when you are talking about rapists and murderers and child molesters — you've got to lock them up," she said. "But you've also got to look at the fact that crime is not monolithic."
Policy-wise, what Harris is talking about is an extension of the statistics-based policing advocated by chiefs like Bratton and used to help drive down crime in Los Angeles and elsewhere. Her argument is that at a time when California's budget is under siege, it makes no sense to spend tens of thousands of dollars housing prisoners who could be helped by programs that cost one-tenth the amount.
"Because of the crisis that we are facing in terms of the economy, we now have an opportunity to be very practical," she said, noting that voters she met this year "don't want to have a conversation about rhetoric and ideology."...
Politics-wise, however, elected officials and voters themselves usually recoil from reform efforts that could be painted as coddling criminals.... But recent polling suggests that, more than in past years, Californians may be in the mood to at least entertain changes to the system. Poll after poll has found that Californians want cuts in the prison budget, and those cuts would be entertained during the present period of lower crime rates rather than in the emotion of high-crime years.
New law review article on post-Booker disparity makes headlines in Boston
This morning's Boston Globe has this effective new article reporting on this important new academic research just published in the Stanford Law Review about post-Booker sentencing realities in the District of Massachusetts. The Globe article is headlined "Disparity cited in sentence lengths; Analyst studying Hub’s US judges alleges bias risk," and it does a nice job summarizing the basic findings of Professor Ryan Scott's just published article titled "Inter-Judge Sentencing Disparity After Booker: A First Look." Here are excerpts from the Globe coverage:
Since the US Supreme Court struck down mandatory sentencing guidelines five years ago in a landmark ruling, the difference in the average sentences of the most lenient and most severe federal judges in Boston has widened, according to a new study that says the trend threatens to undermine fairness.
Now that the guidelines are only advisory, the three most lenient jurists impose average prison sentences of slightly more than two years for all crimes, said the study in the Stanford Law Review published this week. The two toughest impose average sentences double that.
The findings are troubling, said the author of the study, Ryan W. Scott, an associate professor at Indiana University’s Maurer School of Law, because they raise the specter of defendants getting markedly different punishments depending on the politics and biases of the judges before whom they appear. "It offends our notions of equality and consistency and the rule of law that an offender’s sentence should depend on which judge happens to be assigned to the case," Scott, who analyzed 2,262 sentences imposed by 10 judges in Boston, said in an interview.
Scott uses the letters A through J to identify the judges when comparing sentencing patterns, and declined to identify them by name. But he describes four judges who have increasingly set sentences at below guideline ranges as "free at last judges." He calls two whose sentencing patterns have remained largely unchanged "business as usual judges."
The "free at last judges" sentence defendants below the guideline range three or four times as often as they did before the Supreme Court ruling — as much as 53 percent of the time, he wrote. The "business as usual judges" sentence below the guidelines at essentially the same rate they did before the ruling — as little as 16 percent of the time.
Thus, the effect of a judge on sentence length has increased in importance, Scott said. But it still pales in comparison with other factors, he said, including the crime for which a defendant was convicted, the offender’s criminal history, and what the advisory sentencing guidelines recommend.
Two of the US district court judges whom Scott studied, Nancy Gertner and William G. Young, said they welcomed his analysis, a draft of which has been circulating in legal circles for several months. But both judges, whom Scott thanks in the 68-page article for cooperating, said he gives short shrift to the importance of tailoring sentences to individual defendants....
Chief Judge Mark L. Wolf, the top judge in the Massachusetts district court, said he has no idea which judge he is in the study. But he acknowledged that he has increasingly sentenced some defendants, particularly those accused of dealing crack cocaine, below the guideline ranges since the framework became advisory, he said. Wolf is among many federal judges who have long criticized the disparity between the harsh punishments for dealing crack and the less severe penalties for powdered cocaine, a disparity the federal government has narrowed in recent years.
Although Wolf has sentenced more drug offenders to less than the guidelines recommend in recent years, he said, he has increasingly sentenced white-collar offenders to more than the guidelines advise....
The Supreme Court rulings [in Booker and its progeny] transform[ed] what had been a mandatory framework into an advisory one. But that has caused the difference in the length of the average sentence imposed by the most severe and most lenient judges in Boston to grow, Scott writes.
Before the Booker case in 2005, the difference stood at 15 months, in cases where crimes carried no mandatory minimum sentences, according to Scott’s findings. Since the three Supreme Court rulings, the difference has grown to almost 40 months. "I’m just pointing out that the differences among judges have become more stark since Booker, and that’s a worrying development," Scott said.
Another federal judge in Boston, Patti B. Saris, has been nominated by President Obama to be a member and chairwoman of the Sentencing Commission. The Senate Judiciary Committee recently voted, 18-1, to confirm her nomination. The full Senate is expected to vote shortly.
Even the most casual follower of federal sentencing developments since Booker should not be surprised by the findings in the Scott study. Indeed, Justice Breyer himself candidly acknowledged when he invented the Booker advisory guideline remedy that this system likely would increase disparity, and he stressed that it was up to Congress to decide whether an alternative system to the one he was creating to deal with constitutional problems with sentence-enhancing judicial fact-finding was to be preferred. That Congress has left the Booker advisory system entirely unchanged now for six full years continues to surprise me much more than empirical documentation of increased post-Booker sentencing disparities.
Perhaps one reason Congress has not responded to Booker legislatively is the sense, even among the most ardent fan of mandatory federal sentencing guidelines, the increased disparity since Booker is not really such a bad thing in light of the alternative ways of reforming the federal sentencing system. We got an advisory system in the first place largely because federal prosecutors balked at the prospect of having to comply with the new constitutional requirements for proving up sentence enhancements set out in Blakely, and there has been little evidence in the last six years that federal prosecutors have become bigger fans of Blakely rights. Moreover, as Scott's research shows, even with the effect of a judge on sentence length has increasing after Booker, legally relevant factors like the defendant's crime and criminal history still are the principal drivers of sentence lengths. Thus, to paraphrase Pangloss from Candide, perhaps despite increased disparity, after Booker we may be living in the best of all possible federal sentencing worlds.
December 20, 2010 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
"Search for guidelines on death penalty cases continues to consume justices' time"
The title of this post is the headline of this new article in today's Washington Post. Here are some excerpts:
When the Supreme Court hands down a list of the (few) cases it has picked for its docket and the (many) petitions it has rejected, it sometimes is accompanied by a commentary from one or more of the justices. More often than not, the subject is the death penalty.
Even as the number of executions falls and the death sentences handed out decrease, the court still spends a remarkable amount of its time deciding whether someone receives the ultimate punishment. Or at least deciding when other judges have made the right decision.
The court's decision to deny certiorari and leave the ruling of the lower court in place draws complaints from both ends of the bench. Liberals complain that lower courts are ignoring the justices' increasingly complex and exacting standards on what must happen before someone is executed in America. Conservative justices complain that the lower courts ignore Congress's attempts to make sure death sentences that are imposed properly are actually carried out....
A recent essay in the New York Review of Books by retired justice John Paul Stevens reiterated his statement two years ago on "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes."
It has brought new criticism both of the court's jurisprudence and its preoccupation with capital punishment — and Stevens's role in creating whatever confusion exists. But the work of the court will go on — the search for apparently elusive rules and regulations that identify who deserves the death penalty and who does not.
December 19, 2010
Federal education stimulus dollars covering prison costs in Alabama
As detailed in this local article, which is headlined "Prisons the biggest recipient of Alabama's education stimulus dollars," a big chunk of federal dollars earmarked for education has been going to prison spending in Alabama. Here are the details:
Alabama’s biggest recipient of federal education stimulus dollars thus far is not a local school system or a college: It’s the Department of Corrections, according to a Press-Register analysis.
The agency has received $118 million of $1.1 billion in stimulus funding doled out to the state by the U.S. Department of Education since 2009. The money covered health care costs for 26,000 inmates, and salaries and benefits for about 4,200 corrections officers and other employees for three and a half months, officials said.
The spending was legal: Governors were allowed to give up to 18 percent of the funding to areas other than education, such as public safety. Nonetheless, Alabama spent about $4,500 in education stimulus dollars per prisoner, about four times the amount per student in kindergarten through 12th grade....
“If we could’ve had that $118 million,” Baldwin County schools Superintendent Alan Lee said of school systems in general, “we could’ve given the prisons less business.” Studies have shown that students who fail classes and drop out are more likely to go to prison than those who do well in school....
Steve Brown, associate commissioner over administration for the Department of Corrections, said the injection of federal stimulus dollars was vital to the 31 prison facilities across the state. Without it, he said, his agency might have petitioned the Legislature for permission to release inmates, something that Brown said would not have been well-received. Or, the state would have had to skim money from all of its other departments, including education, to cover a corrections budget that has been ailing for years.
Prisons are overcrowded and the corrections department is staffed only at 80 percent of what it should be, he said. “We’ve done ‘what if’ drills before. We would’ve had to release 40 percent of our inmates. That’s not a viable option,” Brown said. Brown said that federal auditors examined the corrections department spending and gave their OK.
Notable new perspective on reasonableness review after Booker
I have long thought that appellate review was a weakest link in the Booker remedy, both jurisprudentially and practically. Thus, this new piece on SSRN by Briana Rosenbaum really caught my eye. The piece is titled "Righting the Historical Record: A Case for Appellate Jurisdiction Over Appeals of Sentences for Reasonableness Under 28 U.S.C. § 1291," and here is the abstract:
This Article is the first to critically analyze the jurisdictional basis for the Supreme Court’s mandate in United States v. Booker, 543 U.S. 220 (2005), that all courts of appeals review the length of criminal sentences for “reasonableness.” In Booker, the Court created a new kind of appellate review: review of all criminal sentences for “reasonableness.” As a result, the availability of appellate review has expanded greatly. Data from the U.S. Sentencing Commission shows that, since Booker, the number of sentence appeals has risen.
Unfortunately, the Court in Booker did not explain the jurisdictional basis for its expanded “reasonableness review.” The omission is not trivial. For decades, federal courts have held that courts of appeals do not have jurisdiction to review the length of criminal sentences. The Supreme Court may not increase the jurisdiction of these courts; the Constitution gives this power to Congress alone. Accordingly, if there is no basis for jurisdiction, the Supreme Court usurped Congress’ power to expand the jurisdiction of the federal courts. Despite this, courts of appeals have unanimously followed the Supreme Court mandate to review sentences for reasonableness, with little more justification than “because the Supreme Court said so.”
This Article, for the first time, examines the historical and legislative underpinnings of appellate review of criminal sentences in an attempt to find a justification, if any, for Booker’s expanded appellate review. The Article concludes that courts of appeals have indeed had jurisdiction under 28 U.S.C. § 1291 to review the length of sentences, and have had such jurisdiction since at least 1891. Although courts routinely rejected appeals of the length of sentences for lack of “jurisdiction” before Booker, they did so erroneously, relying on older case law without fully analyzing the basis for those decisions. In fact, this “rule of non-review” was based not on jurisdiction, but on a policy of deference to the sentencing judge -- a policy that can be changed at any point, by either Congress or the Supreme Court. In Booker, the Supreme Court exercised such a power. For the first time, this Article provides the correct jurisdictional basis for the Booker decision, and, at the same time, rights the historical record on jurisdiction over appeals of criminal sentences.