Wednesday, January 02, 2013

"Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing"

The title of this post is the title of this new paper by Carlos Berdejo and Noam Yuchtman now available via SSRN.  Here is the abstract:

Whether judges respond to political pressure is an important question occupying social scientists. We present evidence that Washington State judges respond to such pressure by sentencing serious crimes more severely.  Sentences are around 10% longer at the end of a judge's political cycle than the beginning; deviations above the sentencing guidelines increase by 50% across the electoral cycle.  We conduct robustness and falsi fication exercises and distinguish between judges' election cycles and other officials' by exploring non-linear eff ects of electoral proximity.  Our fi ndings inform debates over judicial elections, and highlight the interaction between judicial discretion and the influence of judicial elections.

January 2, 2013 in Applicability of Blakely to FSG, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, August 30, 2012

Fourth Circuit vacates LWOP sentence for illegal gun possession premised on uncharged murder

A Fourth Circuit panel handed down an an intricate set of opinions today in US v. Horton, No. 11-4052 (4th Cir. Aug. 30, 2012) (available here). The ruling provides yet another reminder that, despite the Supreme Court's work in Blakely now more than 8 years ago, federal defendants still frequently face much longer sentences based on questionable judicial fact-finding by a perponderance of evidence under the federal sentencing guidelines. In Horton, however, the defendant got a break thanks to the Fourth Circuit view of how the guidelines should be applied, as this first paragraph from the majority opinion reveals:

Timothy Tyrone Horton appeals his conviction for possessing a firearm while a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and also appeals the district court’s imposition of a sentence of life imprisonment.  For the reasons set forth herein, we affirm Horton’s conviction.  We conclude, however, that the district court erred in applying the murder cross-reference provision in United States Sentencing Guidelines Manual ("USSG" or "Guidelines") § 2K2.1(c)(1) and in treating as relevant conduct a murder that occurred during the course of an unrelated and uncharged offense, which error substantially increased Horton’s advisory Guidelines range.  Accordingly, we vacate Horton’s sentence and remand for resentencing.

August 30, 2012 in Applicability of Blakely to FSG, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (1) | TrackBack

Monday, April 30, 2012

Do capital repeal and three-strikes reform initiatives help or hurt each other in California?

As noted in this prior post, it became official last week that Californians will get a chance to vote this fall on a ballot initiative to repeal the state's death penalty.  In addition, as reported in this effective press story from late last week headlined "Three Strikes Law initiative likely to qualify for Nov. ballot," it also now appears that voters at the same time will have a chance to reform the state's (in)famously harsh three-strikes sentencing law. Here are the basics on that front:

An initiative written by Stanford University professors to scale back California's tough Three Strikes Law has garnered more than 830,000 signatures of support, virtually ensuring the measure will make the November ballot and triggering the state's latest struggle over how harshly criminals should be treated.

California is the only one of the 26 states with three strikes laws to allow prosecutors to charge any felony as a third strike -- and then to lock up the offenders for 25 years to life. The proposed initiative would reserve that penalty for the baddest of the bad, including murderers, rapists and child molesters.

Supporters turned in more than 830,000 signatures to state election officials Thursday -- 504,760 more than needed. They also announced the endorsement of Los Angeles County District Attorney Steve Cooley -- a Republican -- marking a crucial step toward a bipartisan coalition.

"The Three Strikes Reform Act is right for California," Cooley said. "It will ensure the punishment fits the crime. Dangerous recidivist criminals will remain behind bars for life, and our overflowing prisons will not be clogged with inmates who pose no risk to public safety."

Under the existing Three Strikes sentencing scheme, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen to get something to eat and forging a check for $146 at Nordstrom have been sentenced to life in prison.

Cooley's support is particularly notable because he has taken a conservative position on two other criminal-justice controversies in California. He opposes a November ballot measure that would scrap the death penalty and has sharply criticized the Legislature's massive "realignment" program, which started in October to relieve prison overcrowding, for effectively reducing the amount of time low-level offenders spend behind bars.

But Mike Reynolds, a Fresno man who helped draft the Three Strikes Law after his daughter was slain in 1992 by two repeat offenders, said prosecutors like Cooley should have more discretion over how to charge anyone with two strikes on their record who commits another felony, no matter how minor. "It's easy if you live in Palo Alto, where Stanford is and where it's safe, to be for this," Reynolds said. "The only question voters need to answer is which of these offenders with at least two serious or violent convictions on their record would you like to have living next door to you? And if you wouldn't want them next door to you, why would you put them next to any California family?"...

The new measure would allow only certain hard-core criminals to be put away for life for any felony offense, including shoplifting, while restricting the third strike to a serious or violent felony for everyone else.  It also does not include changing the rules for second-strikers, which currently call for sentences to be doubled in many cases, even if the second offense is not serious or violent.  Although an effort to alter the law in 2004 required third-strikers whose last offense was nonviolent and nonserious to be resentenced, the new initiative would allow only third-strikers to ask the courts to resentence them.

District attorneys in the Bay Area are expected to support the initiative, though several were noncommittal about it Thursday.  A spokeswoman for Alameda County District Attorney Nancy O'Malley said she doesn't take a position on pending initiatives. Steve Wagstaffe, San Mateo's top prosecutor, said he would "not be bothered if it won" because it already is extremely rare for his office to seek life sentences for people who commit nonviolent or nonserious offenses, with the exception of sex crimes.

Santa Clara County District Attorney Jeff Rosen said he'll make a final decision after a meeting in June of the California District Attorneys Association.  "I believe the Three Strikes Law should be reformed," Rosen said through a spokesman.  "The Stanford initiative contains some good ideas."...

Advocates predict the savings will prove persuasive, particularly with critical swing voters, though they also plan to frame the campaign in terms of public safety and fairness.  A previous measure in 2004 failed by about 3 percentage points after a last-minute media blitz by then-Oakland Mayor Jerry Brown, then-Gov. Arnold Schwarzenegger and former Gov. Pete Wilson. Brown has declined to comment on the current effort.

Opposition to the new measure is expected to come largely from the Central Valley and parts of Southern California.  The previous measure, Proposition 66, sought to limit felonies that trigger a third strike to violent or serious crimes in every case.

This latest effort to reform California's three-strikes law via inititative is fascinating and worth watching closely in its own right.   But the fact that this reform effort will appear on the ballot (and likely get less attention both nationwide and within California) at the same time as an inititative to repeal yhe state's death penalty adds an extra important (and distorting?) element to the public discourse. 

I can readily imagine some (many? most?) criminal justice reform advocates urging a "yes" vote on both the death penalty repeal and the three-strike reform initiatives. For example, this recent editorial from the San Francisco Examiner, headlined "Time to end the death penalty, reform three-strikes law," wastes little time getting on record support for both initiatives. 

But, as the report above highlights, there is reason to expect some (many? most?) California prosecutors will be fine with the three-strikes reform initiative but will oppose repeal of the death penalty.  In addition, I would not be surprised if some hard-core death penalty abolitionists will express no more than luke-warm support for three-strikes reform if (when?) any polling data suggest that voters may be likely to vote for only one and not both of these sentencing reform proposals.

For a whole bunch of reasons, I do not think these distinct California reform initiative should necessarily stand or fall together.  And yet, I will not be surprised if they do, and I also cannot figure out if this reality makes me extra excited or extra concerned about crime and punishment debates in California over the next sixth months. 

April 30, 2012 in Applicability of Blakely to FSG, Death Penalty Reforms, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, July 17, 2011

New ACLU report claims California's death penalty is already dead

Easset_upload_file82_9465_e The ACLU of Northern California has released this notable new report on the Golden State's death penalty system. The report his titled, "California's Death Penalty is Dead: Anatomy of a Failure," and here is part of the executive summary:

California’s death penalty is dead.  Prosecutors, legislators and taxpayers are turning to permanent imprisonment with no chance of parole as evidence grows that the system is costly, risky, and dangerous to public safety.  New polls also indicate that voters favor replacing the death penalty with life in prison without the possibility of parole, with a requirement for work and restitution paid to the Victims’ Compensation Fund.

Most significantly, only three death sentences were handed down in California from January to June 2011, compared with the same period last year when there were 13.  This is the lowest number of new death sentences in a six month period since the death penalty was reinstated in 1978, and a clear indicator that district attorneys and jurors across the state are turning away from the death penalty.  On average, 49% of death sentences are decided in the first six months of the year.  This means that California may be on track for a total of less than 10 death sentences in 2011 -- the lowest number in 33 years.

Three other related developments reveal a system in total collapse:

California has not executed anyone since 2006 and there is no reason to believe that executions will ever resume.....

Death penalty promoters have been snubbed at the ballot box....

Death penalty costs are extraordinary and detrimental to public safety at a time of economic crisis.

Some recent related posts:

July 17, 2011 in Applicability of Blakely to FSG, Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, February 19, 2010

"Deciding When To Decide: How Appellate Procedure Distributes the Costs of Legal Change"

The title of this post is the title of this notable new piece from Professor Aaron-Andrew P. Bruhl that should be of extra interest to Blakely and Booker fans, as evidenced by this abstract:

Legal change is a fact of life.  The need to deal with legal change has spawned a number of complicated bodies of doctrine.  Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent.  How such questions are answered affects the size and the distribution of the costs of legal change.  Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, this Article focuses on lower courts’ discretionary decisions about when to decide the cases that come before them: should lower courts continue to decide cases in the regular course even when a change in law is in the offing, or should they delay adjudication until after the dust has settled?

The Article has both positive and normative aspects. It begins by drawing together several bodies of doctrine in order to present a unified account of what we can call our system’s law of legal change. The Article then presents a case study of the six-month interval between Blakely v. Washington, which invalidated a state sentencing scheme and cast substantial doubt on federal sentencing guidelines, and United States v. Booker, which then held Blakely applicable to the federal system. A majority of the appellate courts that addressed the question upheld the federal guidelines during this transitional interval.  Beneath the surface, however, the various courts upholding the guidelines managed cases very differently.  Some circuits bore much of the cost of legal change themselves, while others shifted some of the cost to litigants and other courts.

Based on the insights gleaned from this episode, I suggest a framework for evaluating and perhaps improving how courts process cases during transitional periods.  Case-management decisions are highly context-specific, which makes it difficult and perhaps undesirable to formulate general rules, but we might be able to improve courts’ handling of such matters by altering the institutional environment and modifying incentives.

February 19, 2010 in Applicability of Blakely to FSG, Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, February 08, 2007

An initial victory in Faulks

As detailed in this post, last month I helped a team of sharp young lawyers develop and file this cert petition in US v. Faulks.  (The case concerns the procedures for revoking supervised release and presents Blakely issues in an extraordinary factual setting).  As shown here, though the SG waived its right of response, the Supreme Court has now ordered the government to respond to the Faulks petition.

Folks with greater knowledge of SCOTUS practices tell me that this certainly does not mean that the petition will receive a grant, but it is a good sign suggesting the Justices saw something worth giving a closer look.  The SG's brief in opposition (BIO) is now due on March 9, and I am very much looking forward to seeing what the BIO says. 

February 8, 2007 in Applicability of Blakely to FSG | Permalink | Comments (3) | TrackBack

Saturday, June 04, 2005

1st Circuit addresses Blakely's applicability to revocation of supervised release

This past Friday was a day for interesting (and arguably ground-breaking) Apprendi/Blakely decisions.  In addition to the notable Second Circuit ruling on Apprendi's applicability to New York's persistent felony offender statute in Brown v. Greiner (basics here), Friday also brought from the First Circuit US v. Work, No. 04-2172 (1st Cir. June 3, 2005) (available here), which rules that Blakely is not applicable to judicial determinations in the course of revoking supervised release and ordering a term of imprisonment. 

Work is an interesting ruling for a number of reasons, and it provides useful background on both Blakely and the federal law of supervised release.  Here is the decision's opening paragraph:

In this appeal, defendant-appellant Timothy P. Work argues that the Sixth Amendment, as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time. He posits that when such a revocation leads to additional imprisonment above and beyond the top of the original guideline sentencing range, the facts underlying the revocation must be proven to a jury beyond a reasonable doubt.  We conclude that the appellant's argument is doubly flawed: it is premised not only on a misunderstanding of supervised release but also on an attempted importation of Sixth Amendment jury trial rights into an area in which they do not belong.

Among other interesting aspects of the Work court's discussion of these issue is this (debatable?) passage addressing not only the scope of the Sixth Amendment, but also due process concerns and requirements (citations omitted):

The difficulty with the appellant's argument is that this type of judicial factfinding [i.e., finding facts to confirm violation of supervised release conditions] does not pose a Sixth Amendment problem.  The law is clear that once the original sentence has been imposed in a criminal case, further proceedings with respect to that sentence are not subject to Sixth Amendment protections.  To be sure, the conversion of a less restrictive form of punishment, such as supervised release, to a harsher one, such as imprisonment, does entail a deprivation of liberty (albeit conditional liberty).  As such, the accused must be accorded a suitable panoply of due process protections.  The process that is due, however, does not encompass the full sweep of the Sixth Amendment's prophylaxis (such as a right to a jury trial on the facts of the alleged violation). Nor are facts required to be proven beyond a reasonable doubt in such a proceeding.

(First Circuit aficionados get only one guess as to the author of Work and its discussion of "the Sixth Amendment's prophylaxis.")

June 4, 2005 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Appellate Courts, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, December 30, 2004

A belated information present from the USSC

In my testimony last month to the US Sentencing Commission, I urged the USSC to examine post-Blakely developments, especially in the Seventh and Ninth Circuits where Blakely has been deemed applicable to the federal guidelines, to help assess whether a "quick legislative fix" would be truly essential after a possible ruling in Booker and Fanfan applying Blakely to the federal system.  Thus, I am very pleased to see that the USSC now has posted on its Booker/Fanfan page a document entitled "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here).

Here is how the USSC describes this fascinating new document on its Booker/Fanfan page:

While awaiting the submission and analysis of empirical data on the effect of the Blakely decision, the Commission staff conducted a survey of 40 sample subjects (judges, defense counsel, and probation officers) in the Seventh and Ninth Circuits to attempt to determine, through anecdotal means, how those jurisdictions are handling their criminal caseloads.

Though this document is, as stressed by the USSC, "preliminary" and "anecdotal" and only includes cases through October, it is still an extremely important and interesting (partial) report on the post-Blakely state of federal sentencing.  Along with this week's WSJ article on federal court doings, this document is a must read for everyone interested in assessing both the present and possible future of federal sentencing.

In subsequent posts over the next few days, I will highlight some of the most essential elements of this memo and also reflect on what it suggests for those planning for a post-Booker world.  For now, let me just lavish the USSC with praise for making this document publically available.  Perhaps this good deed will bring good karma for USSC Chair Judge Hinojosa's beloved Texas Longhorns (who will need to do a lot better against a Big Ten team in the Rose Bowl than another Big 12 team did against my Buckeyes in the Alamo Bowl last night).

December 30, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (1) | TrackBack

Tuesday, November 09, 2004

Booker and Fanfan pre-reading guide

If Booker and Fanfan are decided today — and that is still a big "if" — there will be so many ways to examine and assess what the Supreme Court says (and does not say). Besides obviously being concerned with the basic holding and vote count, I will also be thinking about:

1. Who writes the majority opinion and any concurrences or dissents.

2. Whether the Court's opinion discusses constitutional provisions other than the Sixth Amendment and how the Court handles precedents like Watts and McMillan and Williams.

3. Whether the Court's opinion, directly or indirectly, speaks to the continued vitality after Blakely of recent key precedents like Almendarez-Torres and Harris (background on these issues can be found here).

4. Whether the Court's opinion, directly or indirectly, speaks to issues relating to Blakely's retroactivity.

5. Whether the Court's opinion, directly or indirectly, speaks to issues confounding state courts such as Blakely's applicability to consecutive sentencing determinations or the scope of the "prior conviction" exception (or the dozens of other smaller "Blakely scope" issues).

I could go on — there are also many questions about permissible remedies for current cases and advising other branches about how to handle future cases — but I am already exhausted just thinking through all the issues. What I fear most before seeing any opinion is the prospect of a deeply fractured Court creating uncertainty on even those issues it directly addresses. Here's hoping that, no matter what the Court says, it speaks with a relatively clear voice.

November 9, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, October 14, 2004

Better than okay in OK

I have a fast hotel connection here in Oklahoma City (where I am participating in this exciting conference tomorrow). And to celebrate all things Sooner, I cannot help linking back to the great O'Daniel decision by Chief Judge Sven Erik Holmes of the Northern District of Oklahoma here, and also a great pre-Blakey report from the Oklahoma Sentencing Commission here.

October 14, 2004 in Applicability of Blakely to FSG, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Tuesday, October 05, 2004

A Fall Classic?

With a full slate of baseball playoff games starting today, hard-core baseball references will likely pervade this blog in the weeks ahead. As noted here and here, there are many compelling MLB playoff stories, and it is great fun to talk about Blakely through the lens of baseball lore. For example, it is easy to think of (Yankee fan) Justice Scalia as something of a modern-day legal Babe Ruth, with Blakely perhaps being his called shot.

Today I am thinking about whether we will have a World Series champion or a decision in Booker and Fanfan first. I encouraged guessing about the likely date of a ruling here, and a knowledgeable SCOTUS-watcher yesterday suggested November 1 as when we would see a decision (note that this schedule indicates the World Series will be wrapped up no later than October 31).

Though I continue to expect to see a decision in Booker and Fanfan sometime in November, the need for a quick ruling is considerable and yesterday's argument has me thinking we might see a decision this month. That possibility leads me to ask who could be the Supreme Court's "Mr. (or Ms.) October"?

Justice Thomas seems to have a bit of swagger like Reggie Jackson, the original Mr. October, and it is fun to speculate about the Justice's views on Booker and Fanfan. As is his custom, Justice Thomas did not say a word at yesterday's oral argument. But he has been one of the most "vocal" Justices in the Apprendi line of decisions, and I think there is a real chance he will get to write the opinion for the Court in Booker and Fanfan.

In honor of the greatest month in sports, I highly encourage readers to use the comments for more baseball-Blakely talk. Should we think of Justice Breyer as Abner Doubleday or Alexander Cartwright because of his role in creating the federal guidelines? Is Justice O'Connor the High Court's Jackie Robinson for breaking through the SCOTUS gender line (and might that in turn cast Justice Ginsburg in the role of Satchel Paige)?

Gosh this is fun, please join in. Football fans should feel free to chime in, too. However, since the departure of superstar Justice Byron "Whizzer" White — who was runner-up for the famed Heisman Trophy in 1937 — I think only Chief Justice Rehnquist has the stature to hold his own on the gridiron.

October 5, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Monday, October 04, 2004

Reflections on the SG's argument on Blakely's applicability

Arguing for the government, Acting SG Paul Clement very effectively framed the issues facing the Supreme Court in an effort to highlight the "carnage and wreckage" that would flow from applying Blakely to the federal guidelines. Clement noted at the outset that there are 1200 federal criminal sentencings each week, and he suggested they could all be suspect if Blakely applies to the federal system. He also strongly argued that Dunnigan, Witte, Watts and Edwards all conveyed a particular understanding of the guidelines as distinct from the statutory maximums enacted by Congress.

Clement cleverly focused on the fact that in Watts essentially the whole court, save Justice Stevens, in summary fashion rejected a challenge to the use of acquitted conduct in guidelines sentencing. He also ultimately asserted that the key precedent really at stake was Mistretta, as he suggested that Mistretta itself would have to be reversed because the respondent’s argument would essentially mean that the US Sentencing Commission has functionally created elements for thousands of new federal crimes.

I think Clement is right when saying that extending Blakely to the federal guidelines would essentially overrule Watts. But that is, in my view, another argument for extended Blakely. Every year I teach Watts in my sentencing courses, and every year students are aghast that the existing guidelines require judges, based on preponderance findings, to enhance sentences based on facts relating to charges on which a defendant was acquitted. It is very hard for a criminal justice system to endorse Watts and also claim to have a serious commitment to the jury right.

But I think Clement is wrong when saying that extending Blakely to the federal guidelines would essentially overrule Mistretta. This claim is based on the assertion that extending Sixth Amendment rights to guideline factors would turn them into de facto elements. But because such guideline factors require judges to impose longer sentences, they truly are already de facto elements (and this is why Ex Post Facto law limits the application of new guidelines to old cases). In other words, defendants now feel substantively the impact of guidelines factors as if they were elements, and the SG is just arguing that defendants should not be provided the usual procedural protections that accompany such elements. This is what gives the government's argument a "through the looking glass" quality: according to the government, defendants get full procedural rights when Congress substantive increases sentences, but they do not get these rights when a (less democratically accountable) administrative agency increases sentences.

As I noted in a prior post and as others have noted throughout the blogsphere and in the media, it does not seem Clement was winning any converts with his (well crafted but very uphill) arguments. Indeed, the most interesting interchange during this part of the argument was when Justice Kennedy started to explore with Clement whether different facts might get different treatment under the Blakely rule. This led me to wonder whether Justice Kennedy was hoping to engineering a more nuanced approach to the (still developing) Blakely doctrine. No one followed Justice Kennedy's lead at oral argument, but I think he may be on to something that could merit some time and energy as the Justices start writing all this up.

October 4, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (6) | TrackBack

Sunday, October 03, 2004

Ivory tower optimism meets inside the Beltway realism

I explained earlier this week here why I am optimistic about the future of sentencing reform, but I have conceded here that meaningful sentencing reform may seem much more possible when considered from the ivory tower than from inside the Beltway. Additional proof of these dynamics comes from a set of "DC Observations" I received from Baylor Law Professor Mark Osler this morning.

Long-time readers know that Professor Osler (writing now, of course, from the ivory tower) has suggested one of the most sensible and straight-forward "solutions" to reforming federal sentencing after Blakely. (Professor Osler's thoughtful "3x Solution" can be accessed here.) But, after a trip to DC for research purposes, Professor Osler shares these sobering observations of the future of federal sentencing reform:

Below are my four principle observations from my DC adventure:

1. In the end, Booker and Fanfan aren't very important (unless the Court does not apply Blakely to the Guidelines). As you have written, given the composition of the Blakely majority it is hard to believe that anyone in the majority will defect, and it is clear that Blakely will be applied to federal sentencing. All of our fussing about severability, however, will be pointless. Once Blakely is applied to federal sentencing, Congress will act, regardless if all or part of the Guidelines fall. It is Congress, not the Court or the USSC, that will remake sentencing — the Court's role will be just to provide the impetus for change, and the USSC's job will be to follow very specific Congressional mandates, ala Feeney.

2. Once the Guidelines fall, there will be no great debate on what comes next. Rather, as with Feeney, the new rules will come down without significant debate. Newt Gingrich has a lot to do with this. When he became House Majority Leader, he did two things to the process: (1) He curtailed the power of the committee chairs, increasing the power of the party whips; and (2) He halved the staffs of the committees. This latter change had profound effects. Because there are no longer enough staffers to write legislation, this job is largely performed now by lobbyists. On any given bill, the Republican powers assemble relevant lobbyists to draft legislation (at least on the House side) and pass it in party-line votes. For sentencing matters, the relevant lobbyists are from DOJ — they will, in the end, write the new legislation in the House. This means more mandatory minimums are on the way because that will be Main Justice's preference (as evidenced by the recent letter-to-the-editor campaign by DOJ bolstering current minimums), despite the opposition to same from AUSA's who actually try cases.

3. Don't count on decision-makers caring much what you think. Once I was convinced that the House was not approachable based on the above, I put on a full-court press to meet with someone from the office of Sen. John Cornyn (R-Tex), who is on the Senate Judiciary Committee. I contacted Cornyn's office by phone, email, and fax seeking only a few minutes with a staff member. In my communications, I made it clear that I was a constituent, and that I was a former AUSA who now teaches sentencing law in Texas. My pleas were ignored, and my calls went unreturned.

4. Finally, in all of the academic discussion of these matters, almost no one has discussed what may be ultimately most important: The election. That may be because many of us (myself included) are not very partisan politically. However, we can't ignore politics in making our prognostications. If Bush wins (and a Republican majority remains in the House, a near-certainty), all of the above will remain true. If Kerry wins, all of the above may also remain true, but there is a chance it won't. If the new legislation is stalled until a new administration comes in, the difference won't be at the end of the process (Kerry's ability to veto) but the front end — it is likely that the new AG will be less inclined to lobby for mandatory minimums, and will have a broader mind as to what reforms will be considered.


All of Professor Osler's observations are trenchant and provocative, and I hope I might reflect and comment on them late tonight. But, as I will explain in a following post, I am soon to be heading inside the Beltway myself, and I am now ever more fearful of what I will discover upon leaving the lovely confines of the ivory tower.

October 3, 2004 in Applicability of Blakely to FSG, Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, September 29, 2004

A judicious judicial "amicus"

I know I am biased, but it seems that judges who used to be law professors do the most amazing sentencing work these days. (Realize that many authors of some of the most interesting and important Blakely decisions — including Judges Cassell, Easterbrook, Gertner, Posner, Sutton, Wilkinson (and, of course, Justices Scalia and Breyer) — once did or still do teach at a law school. And this list likely overlooks some other great judges/professors who have written on Blakely.)

Continuing this trend, former Columbia Law Professor Gerard Lynch, who was a an intellectual leader in the field of sentencing even before becoming a judge, has followed up his work in US v. Emmenegger (available here with commentary here), with what is another humdinger in US v. Jackson, 2004 U.S. Dist. LEXIS 19219 (Sept. 22, 2004).

Judge Lynch's analysis and commentary in Jackson is too sophisticated and nuanced to briefly summarize here. But through the quotes below, readers should get a sense of why Jackson is a must read. Indeed, as suggested by the title of this post and revealed in the following snippets, Jackson really serves as yet another "amicus brief" for the Supreme Court as it tries to sort through all the issues it faces in Booker and Fanfan:

This case presents sentencing issues that demonstrate the occasional complexity of the federal Sentencing Guidelines. Although the intricacies of the guideline application here are interesting and significant in themselves, the case also illustrates aspects of the Guidelines that are of crucial relevance to both the constitutional questions currently under consideration by the Supreme Court, and to questions of sentencing policy that should be of concern to the Commission and the Congress....

The guideline calculation in this case illustrates both the complexity of the system that follows from its excessive detail and the constitutional awkwardness of at least certain provisions of the Guidelines that require sentencing judges in effect to declare defendants guilty of crimes of which they have not been convicted by a jury. At the same time, the case illustrates why simplistic analysis of "the constitutionality of the Guidelines in light of Blakely," which purports to find the entire system unconstitutional, radically oversimplifies a complicated and diverse sentencing system which in many of its aspects presents no constitutional difficulties at all.


Jackson is noteworthy in part because, as Judge Lynch explains, the applicable guideline "apparently requires the Court to consider whether he is guilty of the far more serious offense of attempted first-degree murder, an offense with which he has never been charged, let alone convicted by a jury." It is also noteworthy because it highlights the operation and availability of upward departures in a way which shows that such departures may be a key mechanism for avoiding "sentencing windfalls" (as suggested here).

September 29, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, September 28, 2004

Give the SG points for persistence

The Acting Solicitor General's reply brief (available here) makes a game effort to stick to its game plan, but both the reasoning and the strategy still leaves me puzzled. Let me detail some initial questions/concerns here:

On the applicability of Blakely to the federal sentencing guidelines: The logic of the SG's argument now seems to be that applying Blakely to the guidelines would essentially convert all guideline enhancement into elements, which is constitutionally problematic because only Congress can pass criminal statutes that create elements. It is a nice effort, aided clearly by the work of the Fourth Circuit in Hammoud, to try to make this case about the validity of Mistretta rather than about defendants' constitutional rights. But each step in this argument creates new puzzles.

First, it is long-established and essentially uncontested that Ex Post Facto doctrine limits the application of new guideline provisions; but that conclusion seems subject to the same concerns that the SG now raises about the application of Blakely. If treating the guidelines as the functional equivalent of statutes/elements for Ex Post Facto purposes has long been accepted and thought appropriate, I do not see why doing the same for the Sixth Amendment should be a real concern.

Second, though the line of cases culminating in Blakely have thrown around the term "element," the Court has also emphasized that effects and not form dictate the reach of the Sixth Amendment. Call it an element or a factor or Mary Jane, when the law makes a fact essential to the legal upper-limit of available punishments, five member of the Supreme Court have now said consistently for five years that such a fact must be proven to a jury beyond a reasonable doubt.

Third, as I suggested here in discussing Hammoud, there is a "through the looking glass" quality to the government's argument, especially given the Framers' apparent interests in democratic checks and balances and in safeguarding individual rights through the Bill of Rights. The consequence of the SG's argument, as I understand it, is that if and when Congress creates binding sentencing laws though traditional legislative means (securing approval by both houses and signature by the President), then defendants have the benefits of full constitutional procedural rights in the application of those laws. But if and when Congress finds a way to writing binding sentencing laws through non-legislative means (e.g., by creating an agency whose rules will be deemed legally binding despite never being traditionally enacted), then defendants have no procedural rights in the application of those laws.

On the severability of the federal sentencing guidelines if Blakely applies: The SG finally bites the bullet and explains with a bit more candor its complete views on severability. Parole is not back: footnote 3 of the SG's reply brief says the abolition of parole can be severed. Indeed, it seems all part of the SRA remain in place except the guidelines are no longer binding. But, clarifies the SG, the guidelines are completely jettisoned only in cases with Blakely factors, the guidelines should still apply with full binding force in cases without Blakely factors. The SG concedes that this suggested "use of two different sentencing schemes would no doubt lead to less proportionality and uniformity in sentencing," but that apparently is the price we must pay to avoid the prospect of "windfall sentences."

As I have explained here and here and here, the SG's proposed dual system with advisory guidelines in Blakely cases raises a host of critical administrative questions. But, most fundamentally, it makes it especially important, as I suggested here, to know exactly how many cases have Blakely factors. If only 20% of all federal cases have Blakely factors, the impact of the SG's proposed dual system with advisory guidelines used in 1 in 5 case is not all that dramatic. But the SG in its reply brief now represents that 65% of cases involve Blakely factors, which would mean that the SG is now urging the use of an advisory guideline system (a system which we know was expressly rejected by Congress when passing the SRA) in roughly two-thirds of all federal cases.

Beyond all these concerns, I wonder if DOJ and the SG fully appreciate the potential for bizarre and harmful gamesmanship which could (and likely would) result from its proposed dual sentencing system. Consider a defendant in a case without Blakely factors who might reasonably think she has a chance of a lower sentence without the guidelines' limits on the consideration of mitigating circumstances. (Martha Stewart or the defendant in this Ninth Circuit case come to mind.) That defendant would seem to have an incentive to obstruct justice, in order to create a Blakely factor, so that then a judge could be free to sentence lower than the guidelines.

Does DOJ really want a sentencing system in place which could create incentives for defendants to obstruct justice? Or, more importantly, do we really think this model of dual sentencing which could create these incentives better comports with Congress's goals when passing the SRA than simply requiring the government to actually prove all sentencing-enhancing guideline facts?

September 28, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (3) | TrackBack

Tuesday, September 21, 2004

The Respondents' Briefs in Booker and Fanfan

I have now received the brief filed on behalf of Respondent Fanfan in the Supreme Court. It can be downloaded here:
Download fanfan_respondent_brief.pdf

I expect to have the Booker brief for posting soon, too.

UPDATE: And here it is:
Download booker_respondent_brief.pdf

September 21, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (2) | TrackBack

Here come the amici for Respondents

In what I suspect is just the first two of a number of amicus filings, I have received the amicus briefs being filed by Families Against Mandatory Minimums and by the National Association of Criminal Defense Lawyers with the Supreme Court today in the Booker and Fanfan cases. The FAMM and NACDL efforts, both which address the applicability of Blakely to the federal guidelines and severability issues, can be downloaded here:

Download famm_amicus_brief.pdf

Download nacdl_amicus_brief.pdf

I hope to add any and all the other amicus filings I receive to this post and to use a separate post for the filings of the parties. Check back in later in the day, since I believe all the briefs must be filed this afternoon.

UPDATE: And now I have in copies of amicus briefs filed by the Washington Legal Foundation and by the National Association of Federal Defenders and by the New York Council of Defense Lawyers. The WLF and NAFD and NYCDL efforts can be downloaded below:

Download wlf_amicus_brief.pdf

Download nafd_amicus_brief.pdf

Download nycdl_amicus_brief.pdf

September 21, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (3) | TrackBack

Wednesday, September 15, 2004

Martha Stewart speaks (on Blakely)!!

Well, the headline above may be a bit misleading, but according to this NY Times/AP story, Martha Stewart has decided to surrender for prison as soon as possible in order to "put this nightmare behind me and get on with my life."

Blakely nuts like me of course recall that, as discussed here, Judge Cedarbaum had cited Blakely when granting Martha's application for a stay of sentence pending appeal. According to the NY Times/AP story, Martha's lawyer Walter Dellinger "said he still believed she had a chance to win a reversal of her conviction [but he] had asked a federal judge to withdraw the stay of her sentencing pending appeal."

I cannot help but speculate about what sort of Blakely-related advice Martha received. I would guess that, despite my musings here and here, Martha's lawyers sensibly concluded it was unlikely Martha would be able, because of Blakely, to do a lot better at any resentencing. Or, to be more precise, Martha's lawyers probably said that she likely could serve her 10 months and be free before the all the questions surrounding federal sentencing law would be resolved. Thus, the case stands as another example of a point Jason Hernandez made here last month: many defendants are as interested in certainty as leniency; like Martha, they just want to do their time and be done with it.

September 15, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Monday, September 13, 2004

Surplusage split

As previously discussed here, last week in US v. Mutchler, 2004 U.S. Dist. LEXIS 18053 (S.D. Iowa, Sept. 09, 2004), District Judge Robert Pratt granted a defense motion to strike allegations of aggravating factors in a "Blakely-ized" superseding indictment. But around the same time, in US v. Baert, 2004 U.S. Dist. LEXIS 17911 (D. Maine Sept. 8, 2004), District Judge Brock Hornby (of Fanfan fame) refused to strike allegations pertinent to sentencing because his interpretation of Blakely requires the government to "include such allegations in order to obtain what it considers an appropriate sentence" under the guidelines.

In short, we have an understandable, but still significant, "surplusage split."

And, interestingly, I also recently discovered that US District Judge Robert W. Gettleman, in US v. Brown, 2004 U.S. Dist. LEXIS 17835 (N.D. Ill. Aug. 13, 2004), granted "defendant's motion to dismiss indictment or, alternatively, to strike surplusage from indictment in part" based on the government's addition of "sentencing allegations" in a superceding indictment. But, in the same order, Judge Gettleman granted, over the defendant's "vigorous" objection, the government's motion "to continue the trial date from August 16, 2004, to a date in the future after the court receives guidance from the US Supreme Court in US v. Booker and US v. Fanfan." Based on the surplusage skirmish, I will leave it to others to figure out who won the battle and who won the war in Brown.

September 13, 2004 in Applicability of Blakely to FSG, Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Friday, September 10, 2004

Different view of deep structural arguments

As discussed here, Judge J. Harvie Wilkinson's concurrence in the Fourth Circuit's Hammoud ruling provides a fascinating "separation of powers" argument for why Blakely does not apply to the federal guidelines.

Professor and FSR editor Aaron Rappaport has just completed a draft of an article — entitled "What the Supreme Court Should Do: Save Sentencing Reform, Gut the Guideliens" — which provides another and quite different perspective on these deep structural issues and their impact on the applicability of Blakely in the federal system. This article (which can be downloaded below) will be forthcoming in the next issue of the Federal Sentencing Reporter (FSR's second rapid-fire issue covering Blakely). Here's a taste:

I argue ... that a principled rationale for the Supreme Court's Apprendi and Blakely decisions can be identified, a rationale that provides a basis for distinguishing the two kinds of sentencing regimes, at least in some circumstances. At the same time, this analysis does not imply that the federal sentencing system necessarily withstands constitutional scrutiny. Rather, the more nuanced understanding of Blakely and Apprendi generates a specific test for evaluating whether administrative schemes survive review. It is a test the federal sentencing guidelines may not pass, at least absent significant restructuring.

This analysis provides a preliminary attempt to ground the Apprendi and Blakely decisions on deeper constitutional values. It does not aspire to be comprehensive and, in the press of time, the discussion passes over some important issues quickly. Nonetheless, my hope is that this effort will encourage further debate about the logic of the Court’s decisions.


Download rappaport_should_do.pdf

September 10, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack