Monday, June 24, 2013
Are 12 Alleyne GVRs (including one from Kansas) a sign of big Sixth Amendment things to come?
Busy on various fronts, I have not yet had time to think through all the impacts that the Supreme Court's Sixth Amendment work last week in Alleyne might produce. But today, via this SCOTUS order list, I see that there are 12 cases in which certiorari is granted and the judgment vacated, so the case can be remanded "for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."
Some GVRs after a big SCOTUS sentencing ruling are not always a big deal, as there can often be a number of cases in the cert pipeline that are just like the case in which the Supreme Court announced its new doctrine. But, in addition to being intrigued that there were at least a dozen Alleyne-type claims already in the SCOTUS pipeline that now led to these GVRs, I find especially notable that one comes from Kansas (Astorga v. Kansas) and thus involves a remanded "to the Supreme Court of Kansas for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."
My sense has been that Alleyne could and would not end up being nearly as disruptive to any state sentencing systems as Blakely had been. But this Kansas remand, as well my own sense that at least a few states relied on Harris for a while to keep some parts of their sentencing systems in tact, prompts the question in the title of this post.
June 24, 2013 in Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Monday, June 17, 2013
First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris
I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely. But I have three quick reactions about the ruling and its potential impact I wanted to share right away. I will give this trio of reactions these labels: big, not-so-big, could-be-huge.
The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system. That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris. And Harris is now a goner.
The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne. For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court. Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.
The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities. If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term. (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)
Prior related post on Alleyne ruling:
- Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums
June 17, 2013 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack
Sunday, January 08, 2012
Interesting new data on operation of death penalty in Connecticut
Thanks to this New York Times editorial by Lincoln Caplan, which carries the provocative headlined "The Random Horror of the Death Penalty," I saw this fascinating new study by Professor John Donohue concerning the operation of the death penalty in the Nutmeg State. First, from the study: it is titled "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution," and here is the start of the abstract:
This study explores and evaluates the application of the death penalty in Connecticut from 1973 until 2007, a period during which 4686 murders were committed in the state. The objective is to assess whether the system operates lawfully and reasonably or is marred by arbitrariness, caprice, or discrimination. My empirical approach has three components. First, I provide background information on the overall numbers of murders, death sentences, and executions in Connecticut. The extreme infrequency with which the death penalty is administered in Connecticut raises a serious question as to whether the state’s death penalty regime is serving any legitimate social purpose.
Specifically, of the 4686 murders committed during the sample period, 205 are death-eligible cases that resulted in a homicide conviction, and 138 of these were charged with a capital felony. Of the 92 convicted of a capital felony, 29 then went to a death penalty sentencing hearing, resulting in 9 sustained death sentences, and one execution (in 2005). A comprehensive assessment of this process of winnowing reveals a troubling picture. Overall, the state’s record of handling death-eligible cases represents a chaotic and unsound criminal justice policy that serves neither deterrence nor retribution.
Second, from the start and end of the NYT editorial:
The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime....
Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence. Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.
In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.
The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.
In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.
I may have a lot more to say about the implications of Professor Donohue's research once I have a chance to reads his entire study. But I will begin by suggesting that I do not think Furman can or should be read to hold or even imply that county-by-county differences in the application of the death penalty within a state serve to make the operation of the death penalty unconstitutional. A state's policymakers may surely decide that such geographic differences make for bad policy and should be addressed legislatively; but I do not think the judiciary can or should hold that such differences alone make the death penalty unconstitutional.
Friday, September 03, 2010
"Of Rebels, Rogues and Roustabouts: The Jury's Second Coming"
The title of this post is the title of this new piece from Professor Jenny Carroll now appearing on SSRN. As its abstract reveals, this paper would be a timely read for anyone eager to think about the labors of juries during this Labor Day weekend:
This article examines the role of the jury in a post-Apprendi justice system. Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences. I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability. In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate.
This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact. Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability. I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.
Monday, August 23, 2010
Interesting split Sixth Circuit ruling on Blakely-based habeas action from Ohio
Hard-core Blakely fans and/or hard-core habeas fans will want to be sure to check out today's work by a split Sixth Circuit today in Cvijetinovic v. Eberlin, No. 08-3629 (6th Cir. Aug. 23, 2010) (available here). Here is how the majority opinion in Cvijetinovic gets started:
Warden Michelle Eberlin appeals the district court’s order conditionally granting Ohio prisoner Alexsandar Cvijetinovic’s petition for a writ of habeas corpus. In the petition, Cvijetinovic claimed that his presumptive sentence was enhanced on the basis of judge-found facts, a practice forbidden by the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). Though it determined that Cvijetinovic’s Blakely claim was procedurally defaulted, the district court granted relief, holding that he had established cause and prejudice. The district court’s conclusion with respect to cause was premised on the notion that, at the time of his default, the legal basis for Cvijetinovic’s claim was not reasonably available. However, the principle at the heart of Blakely had already been articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), which spawned myriad Blakely-type claims in the months preceding Cvijetinovic’s appeal. We therefore reverse.
Here is how the dissent by Judge Keith in Cvijetinovic gets started:
The majority’s interpretation of Engle v. Isaac, 456 U.S. 107 (1982), in line with Eleventh Circuit precedent, would require defense counsel to anticipate and articulate constitutional arguments that are contrary to controlling Supreme Court precedent. See, e.g., Pitts v. Cook, 923 F.2d 1568, 1571 (11th Cir. 1991). This reading is not only unfounded but also poses worrying policy concerns. Because counsel’s failure to articulate a Blakely claim prior to Blakely, itself, constitutes sufficient cause to excuse procedural default, I respectfully dissent.
Wednesday, December 16, 2009
Notable and insightful Blakely habeas ruling from the Sixth CircuitThe Sixth Circuit has an effective little panel decision today in a habeas case concerning the application of Blakely to Ohio sentencing law. The ruling in Arias v. Hudson, No. 08-4513 (6th Cir. Dec. 16, 2009) (available here), has many notable aspects, and here is how the opinion starts and concludes:
The warden appeals an order conditionally granting habeas corpus to Manuel Arias on the ground that his sentence violates Blakely v. Washington, 542 U.S. 296 (2004). Arias’s sentence does not violate Blakely, however, because the judicial fact-finding at issue merely increased his minimum sentence. We accordingly reverse.
The continuing vitality of McMillan and Harris may be put to the test in a pending case at the Supreme Court. See United States v. O’Brien, ___ U.S. ____, 130 S. Ct. 49 (2009) (granting certiorari in a case involving fact-finding that increased a defendant’s minimum sentence). The case could be decided by overruling McMillan and Harris, but it also could be decided on statutory grounds, as the First Circuit decided the case below. See United States v. O’Brien, 542 F.3d 921, 924 (1st Cir. 2008). Regardless of what happens in O’Brien, however, this Sixth Amendment reality remains: At the time the judge imposed Arias’s sentence, the Supreme Court treated judicial fact-finding differently depending on whether it affected the minimum sentence faced by a defendant or the maximum sentence for which the defendant was eligible. Because the courts have not treated Blakely or United States v. Booker, 543 U.S. 220 (2005), as changes in law that should be applied retroactively to cases whose direct appeal concluded before their announcement, we see little prospect that the courts will apply any such (potential) change in the law retroactively to Arias. Cf., e.g., Duncan v. United States, 552 F.3d 442, 447 (6th Cir. 2009) (holding that Booker does not apply retroactively to cases pending at the time of Blakely).
In the last analysis: McMillan and Harris were good law at the time of Arias’s sentencing, and they remain so today; the two decisions allow judicial fact-finding that increases a defendant’s minimum sentence; Arias waived his right to have the jury make any findings of fact that might increase his maximum sentence; and an increase in the minimum term of this sentence is governed by Harris. All of this leaves Arias with no cognizable basis for challenging his sentence.
I am very pleased to see this panel opinion give voice to the possibility that the vitality of McMillan and Harris may be at issue int he upcoming O’Brien case. This ruling in Arias also provides a useful and important reminder that defendants whose case may turn in some way on the vitality of McMillan and Harris ought to be extra sure to be preserving (and prolonging?) this issue in their cases.
(On an somewhat unrelated front, the Sixth Circuit today also released this order in an immigration case which includes a dissent that has, among other flourishes, these two amusing footnotes: "Seriously, a Turkish prison" and "With a tip of the hat to M. Colbert of The Colbert Report".)
Friday, October 02, 2009
Should the ALI and other academics actively urge SCOTUS to reverse Harris in O'Brien?
I keep thinking about the suggestion by Professor Kevin Reitz, noted in this post, that the Harris mandatory minimum limit on the Apprendi Sixth Amendment rule might be subject to reversal in O'Brien. And the more I think, the more I get drawn to the idea that everyone who views Harris as a serious impediment to sound modern sentencing reforms ought to be actively urging Harris to be overruled in O'Brien. I say this because I genuinely believe that, if lots of thoughtful folks make a strong case that Harris is now harmful in light of the subsequent Blakely and Booker jurisprudence, few Justices may be eager to defend and uphold Harris.
Let me unpack this instinct by first highlighting that Justice Stevens and Justice Thomas seem likely and eager to embrace calls to overrule Harris. Both Justices have expressed interest in getting rid of undue limits on the Apprendi doctrine and neither seems too moved by stare decisis concerns in this setting. The fact that both Justices Stevens and Thomas may be deeply interested in getting rid of Harris seems quite significant (and Justice Ginsburg has almost always voted with Justice Stevens in this line of cases).
Also significant, especially for the vote of Justice Breyer (and maybe also for Justice Kennedy), is that the subsequent Blakely and Booker rulings largely brought down what Harris sought to preserve: binding guideline systems based on judicial fact-finding. After Blakely and Booker, the virtues of Harris are harder to see, while the vices remain on display.
In addition, the Recuenco decision declares Apprendi-Blakely errors subject to harmless error analysis. Recuenco can and should greatly reduce the fear that overruling Harris would have all sorts of negative consequences: in the vast majority of old cases, any "O'Brien error" in the application of a mandatory minimum sentence would likely be found to be harmless.
Finally, I think all the new Justices could be moved by arguments that preserving Harris is bad for modern sentencing reform as long as Apprendi and Blakely and Booker all remain good law. All the new Justices likely have a sense of the ugliness of modern Sixth Amendment jurisprudence and none have played a direct role in creating it. Consequently, they might readily be drawn to suggestions that the Court would be helpful and respectful to states and officials involved in sentencing reforms if they now did away with the Harris exception to Apprendi.
Ironically, these thoughts all take me back to Professor Kevin Reitz, who is the reporter on the ALI's on-going revision of the sentencing provisions of the Model Penal Code. If he could get the ALI and others to make the case that no sentencing code can be truly model with Harris still on the books, there may be even more than five votes to overrule Harris in O'Brien.
Some related recent posts:
- Might the Harris limit on Apprendi be at risk with O'Brien cert grant?
- Might Apprendi be at risk with O'Brien cert grant?
Friday, February 27, 2009
Alaska Supreme Court rejects Blakely retroactivity claim
Thanks to a helpful reader, I learned that the Alaska Supreme Court today issued a big ruling reversing a lower court determination that Blakely should be given retroactive application. Here is how the opinion in Alaska v. Smart, No. S-12493 (Ak. Feb. 27, 2009) (available here) gets started:
The question presented in these two cases is whether the right to a jury trial announced in Blakely v. Washington should be retroactively applied to two state defendants, Troy Smart and Henry Douglas, whose sentences were final before June 24, 2004, when Blakely was decided. Blakely requires that any fact — except a fact admitted by the defendant or the fact of a prior conviction — necessary to increase a sentence above the statutory presumptive maximum be proved to a jury beyond a reasonable doubt. We decline to give Blakely full retroactivity. We conclude that the purpose of Blakely does not raise serious questions about the accuracy of past sentences and must be weighed against the state’s reliance on the old rule for over twenty years and the administrative burden of implementing the new rule retroactively. We therefore reverse the rulings of the court of appeals in these two cases and remand.
Saturday, January 10, 2009
A (back-handed?) rejection of Booker retroactivity from the Sixth Circuit
In addition to the Sixth Circuit's affirmance of a long within-guideline child porn sentence (discussed here), the court yesterday also rejected a claim that Booker should be applied retroactively in Duncan v. US, No. 06-5021 (6th Cir. Jan. 9, 2009) (available here). A helpful reader sent me these astute observations about the Duncan opinion:
The panel affirmed a sentence against a Booker retroactivity challenge, but the short opinion was interesting since it almost read like a cert petition in favor of Booker retroactivity. (The specific issue was Booker retroactivity back to Blakely, as opposed to Apprendi.) The court made a lot of interesting arguments in favor of retroactivity..., but ultimately held that it was constrained by circuit precedent.
Thursday, February 07, 2008
Hawaii still dealing with Apprendi fix and fall-out
This local article reveals how long it can take for certain matters to make their way from the Supreme Court in DC all the way out to Hawaii:
State courts can resentence convicted felons to extended prison terms under a new law enacted just last year for cases dating to the year 2000, according to a state appeals court ruling issued last week. The ruling by the state Intermediate Court of Appeals upholds the constitutionality of Act 1, which brings Hawaii sentencing statutes in line with recent U.S. Supreme Court orders and rulings. The effective date of the law is retroactive to 2000, when the high court issued a ruling in a New Jersey case.
The new law requires juries to determine whether a convicted felon is eligible for a prison term longer than what is normally allowed, based on the danger he poses to the public. Previously, judges made that determination....
"We're happy with the ICA ruling, and it is our hope that the Supreme Court will see the issue similarly," said state Attorney General Mark Bennett. Oral arguments are scheduled for today. Public Defender Jack Tonaki said there already is a case that raises the same or similar issues pending before the Hawaii Supreme Court.
Thursday, September 20, 2007
A vehicle for addressing Booker retroactivity (and Teague)
I received today a copy of a cert petition flagging another set of interesting sentencing-related issues for the Supreme Court. The petition (which can be downloaded below) was filed in Soto v. US, and raises questions about the applicability to Teague and the retroactivity of Booker. Here are the questions presented from the petition:
1. Does the retroactivity test applied in habeas corpus challenges to state judgments of conviction, as set forth in Teague v. Lane, 489 U.S. 288 (1989), limit the availability of relief on a motion under 28 U.S.C. § 2255 asserting that a federal sentence must be corrected due to error under United States v. Booker, 543 U.S. 220 (2005)?
2. If Teague is applicable, did Booker announce a "watershed rule" of criminal procedure in holding that sentences imposed under the mandatory United States Sentencing Guidelines are constitutionally infirm unless every fact essential to sentence was proved beyond a reasonable doubt?
Some related SCOTUS posts:
- Amazingly interesting case for Fed Courts law geeks (like me)
- When will SCOTUS address the constitutionality of the death penalty for child rape?
- Serious SCOTUS sentencing fun soon to begin
- Apprendi / Blakely Retroactivity index
Thursday, August 16, 2007
Remarkable Apprendi ineffectiveness ruling from the Sixth Circuit
After seeing this ruling earlier today, I wanted to read it closely to be sure it was as big a deal as it seems. And, upon further review, I am sure that the Sixth Circuit's work today in Nichols v. US, No. 05-6452 (6th Cir. Aug. 16, 2007) (available here), is huge and perhaps gets intriguingly close to giving Booker retroactive potential for some federal defendants. Technically, Nichols concerns an ineffective assistance claim brought in a 2255 petition. But federal practitioners will understand from these excerpts what Nichols could mean:
Petitioner-Appellant Thomas Albert Nichols (“Nichols”) appeals from the district court’s judgment denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Nichols argues that his counsel was constitutionally ineffective for failing to challenge enhancements to his Guidelines range. Nichols argues that, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), his counsel should have raised a Sixth Amendment challenge to the sentencing enhancements, even though Nichols was sentenced in 2002, more than two years before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Because Apprendi cast the constitutionality of the Federal Sentencing Guidelines into considerable doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi, we conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence, and we therefore REVERSE the judgment of the district court, VACATE Nichols’s sentence, and REMAND the case for resentencing....
We recognize that, under our decision today, the performance of many attorneys who represented criminal defendants after Apprendi but before Blakely and Booker will be deemed constitutionally deficient. The question before us, however, is not what some or most attorneys actually did, but whether the performance of Nichols’s counsel “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Although we recognize that common practices may provide evidence of the objective standard by which we should measure the performance of individual attorneys, common practices can never be determinative lest we freeze our expectations of counsel at one moment in time, never to improve or change in response to developments in, for example, education, technology, or the law itself. In this case, we conclude that the performance of Nichols’s counsel was constitutionally deficient for failing to take into account and respond to the significant changes in the law effected by Apprendi.
For a range of practical and procedural reasons too complicated to explain briefly, the actual impact of Nichols may not be that huge for the hundreds of thousands of defendants sentenced between Apprendi and Booker. Nevertheless, the import of Nichols is still huge (and likely will lead to further appeals from the government).
Wednesday, May 16, 2007
When will SCOTUS address Booker retroactivity?
Amidst lots of thoughtful sentencing work by Sixth Circuit judges recently (examples here and here), Judge Martin's dissent in Valentine v. US, No. 04-2116 (6th Cir. May 14, 2007) (available here) stands out as an extraordinary tour de force making the case for Booker retroactivity.
As highlighted before, Judge Martin effectively documents that the Teague rule for retroactivity is driven in part by federalism and comity concerns not fully applicable to federal criminal cases. And this closing flourish from Judge Martin's opinion reminds me why the the Apprendi-Blakely five (or Cunningham six) might possibly be moved by arguments for Booker retroactivity:
[T]he Apprendi line of cases means much more than how long the government can send a defendant to jail — it speaks volumes about how we, as a democratic society, are able to follow the strictures that represent the very backbone of our legal and Constitutional system. Apprendi and its offspring — Blakely and Booker — recognize a critical, constitutionally mandated check on the sentencing process, through the grounding of sentencing determinations in facts that have been proved to the jury beyond a reasonable doubt. Our modern federal judiciary has been reluctant to recognize this Sixth Amendment limitation, probably due to the primacy of the mandatory sentencing guidelines that has been ingrained in our approach to sentencing for seventeen years. Although this is an innate and natural way for anyone to think, federal judges included, our personal experience over seventeen years clearly must take a backseat to the fundamental guarantees of the centuries-old Bill of Rights, with the benefit of the Supreme Court's reinvigoration of these values through Apprendi and its progeny (i.e. Booker).
For various reasons, the Valentine case appears to present a particularly good vehicle for the Supreme Court to consider Booker retroactivity issues. I hope the defendants in Valentine will seek cert, and I hope the Justices and their clerks recognize that these issues merit a place on the court's ever-shrinking docket.
Monday, May 14, 2007
Thoughtful work from the Sixth Circuit on Booker retroactivity
Continuing its tradition of thoughtful (and often divided) post-Booker work, the Sixth Circuit today in Valentine v. US, No. 04-2116 (6th Cir. May 14, 2007) (available here), has an extended discussion of Booker retroactivity issues. Valentine holds, in a 2-1 opinion, that Booker is not retroactive.
Judge Martin dissents in a terrifically interesting opinion which, among other insights, highlights that the Teague rule for retroactivity is driven in part by federalism and comity concerns not fully applicable to federal criminal cases. Here is one of many thoughtful parts of Judge Martin's dissent:
These quotations clearly reveal that the standard new rule inquiry and its reference to opinions of reasonable jurists is largely based on concerns with federalism and comity, and demonstrates deference to reasonable state court interpretations of the law. Even where the “reasonable jurists” to whom we look for guidance are federal judges, their opinions can serve as a proxy for whether a similar state court decision was reasonable. So long as state courts are applying Supreme Court case law in good faith, there is diminished justification for burdening their quasi-sovereign judicial machinery with the retroactive application of new rules in cases that have become final.
In a section 2255 case, however, where comity and federalism are irrelevant, there is much less need to defer to the divergent views of federal judges who, in hindsight, did not correctly apply existing precedent to a new case. We are, after all, members of inferior courts established by same sovereign (unlike state court judges), and if the Supreme Court says we were wrong, we should take our medicine and gladly apply the correct rule retroactively, rather than clinging to vacated misapplications of the law to prove that a Supreme Court rule is “new” (which conveniently allows us to convince ourselves that we could not have been wrong in the first place).
Friday, May 11, 2007
DC Circuit rejects Booker retroactivity (and suggests Blakely might be watershed?)
The DC Circuit today in In Re: Fashina, 06-3002 (DC Cir. May 11, 2007) (available here) rejects a Booker retroactivity claim (after working through some complicated AEDPA issues). Since no court ever decided that Booker was retroactive, this is not big news. However, Fashina has an extended discussion of whether Booker might qualify as a "watershed rule" exception under Teague which perhaps hints that the reasonable doubt part of Blakely might be fully retroactive. Here is the passage that especially caught my attention:
[W]e share [the defendant's] premise about the foundational role of the reasonable doubt standard of proof in criminal cases. [Long quote from In re Winship, 397 U.S. 358, 363 (1970)].... We also note that Winship was made retroactive, albeit prior to the Court's setting the current standard for retroactivity in Teague. See Ivan V. v. City of New York, 407 U.S. 203, 204-05 (1972).
Important as the reasonable doubt standard no doubt is, our task is to determine whether Booker works so "sweeping and fundamental" a change in its application as to constitute a watershed rule.
Wednesday, March 21, 2007
Big retroactivity SCOTUS development?!?
Minutes after I finish this playful SCOTUS post, I discover this thoughtful post at SCOTUSblog entitled "Court to study scope of Teague retroactivity." The report by Lyle Denniston details a notable retroactivity briefing request from the Court. Here are the basics from Lyle:
The Supreme Court indicated on Tuesday that at least some Justices are interested in claims by state prisoners that they should be able to get more retroactive benefit out of U.S. Supreme Court decisions that lay down new rules of criminal procedure. The Court's electronic docket shows an order asking the state of Minnesota to discuss that question.
Here is how the Court phrased its inquiry in the pending case of Danforth v. Minnesota (06-8273): "Are state supreme courts required to use the standard announced in Teague v. Lane, 489 U.S. 288 (1989), to determine whether United States Supreme Court decisions apply retroactively to state-court criminal cases, or may a state court apply state-law or state-constitution-based retroactivity tests that afford application of Supreme Court decisions to a broader class of criminal defendants than the class defined by Teague?" (emphasis added).
In other words, the Court seems prepared to explore (only two decades after Teague) response whether state courts are bound to apply Teague in state-court collateral attacks.
As Lyle details, the Danforth case is focused on a Crawford issue. But, this obviously could become a significant issue in efforts to apply Blakely (or even Apprendi) retroactivity. Indeed, a thoughtful reader e-mail this reaction to this development: "If they take up a Blakely retroactivity case too, then that will pretty much nail down, one way or the other, the state of Blakely retroactivity."
Wednesday, February 28, 2007
Can Bockting be read to support Apprendi and/or Blakely retroactivity?
As suggested here, and by commentors, it is not easy for sentencing fans to reader Bockting's discussion of Crawford's non-retroactivity under Teague and wonder what this all might mean for Apprendi and/or Blakely. My quick take is that I see nothing in Bockting that would seem to undermine the arguments that Blakely may at least be retroactive to Apprendi and that the burden-of-proof aspect of Apprendi might be "watershed" and thus fully retroactive. In fact, for reasons developed in some old posts linked below, I one might even mine passages in Bockting to try to enhance the argument for at least some measure of Apprendi and/or Blakely retroactivity.
Some related posts:
- Colorado Supreme Court says Blakely not retroactive
- Distinguishing finality interests between convictions and sentences
- What wrong with equitable Booker retroactivity in the Ninth Circuit?
- The human face of retroactivity
- Seeking retroactive Blakely "Justice for All"
- More academic arguments for Blakely retroactivity
Crawford not retroactive
SCOTUSblog is reporting here that the "Supreme Court ruled on Wednesday that its major ruling on the Confrontation Clause in Crawford v. Washington is not to be applied retroactively, to cases that were final before that ruling came down." I will comment on the opinion, and on what it might mean for Blakely retroactivity, later today. Commentors should feel free to get started ASAP.
UPDATE: Justice Sam Alito authored the Court's unanimous opinion in Whorton v. Bockting, and the Court's work can now be accessed at this link. Notably, there are no separate opinions, and so chack one up for the consensus-interested Chief Justices.
I am sure folks eager to seek Crawford wreck havoc with old convictions are disappointed with this outcome. But, with my sentencing blinders on, I am pleased to see the Court not use up too much of its limited political/legal/reputational capital by sending lots and lots of not-too-ugly old trials into a potential tailspin based on a confusing new rule about the application of the Confontation Clause. (Of course, I say this hoping the Court is prepared to use its political/legal/reputational capital by sending a few ugly old sentences into a potential tailspin.)
Wednesday, January 10, 2007
Final(?) follow-up on Burton
Thanks to How Appealing, at this link you can read Brent Kendall's thoughtful report in the Daily Journal of California on the Supreme Court's somewhat disappointing Burton ruling yesterday. The piece is entitled "Justices Reject 'Blakely' Follow-Up," and here is a taste:
A potentially important U.S. Supreme Court case on criminal sentencing fizzled out Tuesday as the justices announced that legal technicalities prevented them from deciding whether a landmark 2004 decision strengthening a defendant's jury-trial rights should apply retroactively....
Given the Supreme Court's interest in answering the Blakely retroactivity question, the justices could grant review in another case soon - if a good case is available to them. Stanford University law professor Jeffrey L. Fisher, who argued and won Blakely and argued Burton's retroactivity bid, said he and others were "shaking the trees" in search of a case that raised the same issue. The court could line up another prospect soon. "It looks like the court may well have something on its docket to take a shot at this," Fisher said.
Recent related posts:
Tuesday, January 09, 2007
Shouldn't SCOTUS have just DIG'd Burton?
Here is a question for SCOTUS gurus: shouldn't the Supreme Court in Burton have just dismissed the petition as improvidently granted (a DIG), rather than turn the case into a ruling on federal AEDPA law?
The Court's per curiam ruling in Burton v. Stewart can be found at this link, and the first two sentences of the opinion tell the heart of the story:
We granted certiorari in this case to determine whether our decision in Blakely v. Washington, 542 U.S. 296 (2004), announced a new rule and, if so, whether it applies retroactively on collateral review. We do not answer these questions, however, because petitioner — a state prisoner seeking postconviction relief from the federal courts — failed to comply with the gatekeeping requirements of 28 U.S.C. §2244(b).
Because Burton was supposed to be about Blakely retroactivity, the parties and amici focused on this complicated and very consequential issue. (The Burton briefs can be found here.) But the per curiam opinion, while avoiding Blakely retroactivity issues completely, turned into a fairly extensive exegesis of how to apply provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
The parties in Burton barely discussed AEDPA in their briefs, and the Solicitor General's amicus brief did not even mention this issue. Though I am not sure if Burton breaks any important AEDPA ground, wouldn't a truly reserved Court have just DIG'd this case rather than opine on a set of issues that were not fully briefed?
Because the AEDPA issue involved a jurisdictional matter, perhaps the Court considered a DIG inappropriate. But I still think a DIG followed by a grant in another Blakely retroactivity case would have been a much better way to deal with these matters after so many folks, upon the Court's decision to grant cert, spent so much time and energy on the important (and now still unresolved) Blakely retroactivity issue.
UPDATE: I'm convinced by commentors to this post and Howard that the jurisdiction issue and other related considerations justified the Court's decision not to simply DIG Burton. Left open, however, is whether, when and how SCOTUS will finally get to the issue of Apprendi and Blakely and Booker retroactivity.
Relatedly, I think the AP's headline reporting on the Burton ruling is telling: "High Court Rules Against Wash. State Rapist Who Wanted Sentence Reduced." I guess that headline is accurate, but it certainly gives the case a different flavor than one might expect.
ANOTHER UPDATE: In you really dig DIGs, be sure to check out a recent article just brought to my attention: Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 Wisconsin Law Review 1421.