Wednesday, July 14, 2004
End of day news and commentary
The Blakely news and corresponding media coverage is growing as everyone figures out how big this story is. The Wall Street Journal (which unfortunately does not provide content on-line without a subscription) may have on Wednesday another in its series of thoughtful articles about the Blakely fall out. In addition, here's a brief (and surely incomplete) run-down of other noteworthy Blakely news.
Federal Developments: this AP story reports that U.S. District Judge Stewart Dalzell (ED Pa.) sentenced Frederick Leach to a 15-year term in a drug case instead of the guideline recommended 30-year term citing Blakely; Martha Stewart's sentencing is scheduled for Friday though U.S. District Judge Miriam Goldman Cedarbaum has not yet ruled on Stewart's lawyers' request to declare the federal sentencing guidelines unconstitutional -- this thoughtful article details the strategic challenges Stewart faces in deciding whether to speak at the sentencing.
MORE: This article dicusses Blakely issues in a Virginia District Court; this article reports that U.S. District Judge Michael J. Reagan of SD Ill. has continued all his sentencings to September or October; this article reports that U.S. District Judge John Manos has concluded that "the Blakely case does not affect federal law"; and this article quotes Deb Phillips of the U.S. attorney's office in Nashville saying, ''Right now, [Blakely will] just be a blip.''
State Developments: according to this article, Tennessee Criminal Court Judge Rebecca Stern sentenced a man convicted of raping an 82-year-old woman to a minimum 25-year sentence on Monday and said her sentence was limited by the Blakely ruling; and according to this article, Washington State Superior Court Judge Richard Strophy reduced by 19 months the sentence of a convicted murderer Monday relying on Blakely.
Other Commentary: Jason Hernandez over at the Blakely Blog provides this thoughtful run-down of issues raised during today's Senate hearing; Professor Kyron Huigens over at Punishment Theory continues his analysis of the problems he has with Justice Breyer's metaethics.
My own two cents: I found the Senate hearing very heartening with its consistently thoughtful and balanced discussion of many tough issues and its hints that at least a few Senators might want to re-think some major elements of the existing federal sentencing scheme. In the debate over the current "chaos" and the need for a quick fix, I continue to think it is very signficant that the USSC asserts "that a majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely." USSC Written Testimony at p.2 (emphasis added). Finally, since DOJ representative Willaim Mercer's suggested that the time for legislative action might be in August, I am fearful that DOJ, if it feels that judges are low-balling sentences post-Blakely, will return to the Hill later this summer to seek a pro-prosecution "fix."
July 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Legislatures, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (71) | TrackBack
Tuesday, July 13, 2004
Written Senate testimony and comments
As promised earlier, I can and will now post here copies of the written Senate testimony that I have in hand which may not be otherwise available. In addition, as of this writing, you can find (only) the testimony of DOJ representative Bill Mercer and the statement of Senator Orrin Hatch on the Judiciary's Committee's official site here. I encourage readers to use the comments to discuss what they might have thought was especially noteworthy in these proceedings (or anything I missed in my summaries). I will also post additional testimony as I receive it and it is not otherwise available 9and recall you can access my testimony here).
Here's Judge Paul Cassell's written testimony (which has the most comprehensive account of Blakely coping efforts by district courts that I've seen):
Here's Ronald Weich's written testimony (which thoughfully details key considerations for thinking about short-term and long-term congressional fixes):
AND NOW I also discovered that the US Sentencing Commission has posted here the joint testimony of Commissioner John R. Steer and Judge (and Commissioner) William K. Sessions, III.
AND NOW Jason Hernandez over at the Blakely Blog has pdf versions of the testimony of Rachel Barkow and Alan Vinegrad here.
UPDATE: It now appears that all of the testimony (in html form) can now be found on theJudiciary's Committee's official site here.
Panel 2 Senate hearing highlights
After introductions, the Senate hearing's second panel got off to a fiery start by the usually fiery Professor Frank Bowman. He effectively hightlighted that Blakely is not the real problem, but a symptom of "profound, on-going, systemic dysfunction" in the federal sentencing system. He then stressed that there really is turmoil in the federal courts and that all the rapid court rulings are a sign of the coming "national judicial trainwreck." Frank said the new prospect, after the Fifth and Second Circuit decisions, of rapid Supreme Court consideration of Blakely's impact in the federal system changed his view about whether a quick congressional fix was needed now. But he also (rightfully in my view) highlighted that even a quick decision from the Supreme Court would not likely solve the uncertainty in the courts now or the underlying problems with the federal sentencing system.
Professor Rachel Barkow followed by stressing her concerns about the historic place of juries in the criminal justice system. She criticized the "Bowman proposal" (background here) for being a short-term fix that does not safeguard the place of juries, but only safeguards the place of the existing guidelines. She suggested an alternative short-term fix would be to make the guidelines simply advisory, and she advocated a long-term fix in which there is an effort to identify a short list of core aggravating circumstances that for all cases should be treated as distinct elements leading to full trial rights.
Ronald Weich highlighted the challenge that Blakely creates for effectively balancing competing concerns of fairness in sentencing, and he noted that his written testimony highlighted a range of fairness worries in federal sentencing even before the Blakely ruling. He then suggested Congress should do nothing in the short term, but if feeling compelled to do something, the only thing Congress should consider would be to make the federal guidelines simply advisory (which, he highlighted, would only require changing only one provision of the current US Code).
Alan Vinegrad urged short-term and long-term responses, and said some short-term action may be needed in part bacause an additional decision by the Supreme Court would not alone stem the on-going turmoil. Without specifying a short-term fix, he then outlined in some detail his approach to a long-term fix. But Senator Jeff Sesssions quickly followed up by suggesting that his proposed long-term fix was an effort to just "split the baby in half" which might not be viable. Alan, in turn, said he thought such compromises were exactly what gets done in the halls of Congress.
In questions, Senator Jeff Sesssions (who was now presiding) did his very best to argue that the Blakely decision ought to be reversed and he even predicted that "Justice O'Connor's view would ultimately prevail." He thereafter engaged in a dialogue with all the witnesses about deeper problems with the federal guideline system, and then came even closer to calling Justice Scalia an activist judge in a loaded question to (former Scalia clerk) Rachel Barkow concerning whether Justice Scalia would strike down any sentencing system he did not like. Senator Sesssions also indicated that he thought the statutory "25% rule," which defines the limits of the federal sentencing ranges under the current guidelines, might too tightly limit judicial discretion. Frank Bowman jumped in to stress his view that this "25% rule" is a significant structural impediment to meaningful federal sentencing reform.
Panel 1 Senate hearing highlights
The Senate hearing's first panel just ended, and it is all so interesting and thoughtful I'm not sure I can summarize it effectively. This is a "must-see" event now and in repeats (at least for sentencing geeks like me). The opening statements by Senators Hatch, Leahy, Kennedy and Sessions were rich and generally balanced. And all the panel speakers were effective in spotting the many challenging issues post-Blakely, although no firm solutions were put forth.
There did seem to be, however, a general consensus that, in Judge William Sessions' words, the "sky is not falling." Commission Vice-Chair Steer stated that, based on an examination of USSC data, he thought "only a minority" of all federal cases had Blakely problems. And other witnesses stressed the many coping efforts that courts and prosecutors are employing.
All five witnesses counseled caution in any congressional response, and Leahy's first question clarified that noone on the panel was asking for immediate congressional intervention. However, Hatch's first question suggested he thinks there might be a "crisis" that needs to be addressed. And Senator Jeff Sessions asserted that Blakely was the most consequential case in American criminal history, which was creating a "chaotic" situation. (Senator Sessions was especially critical of the Supreme Court's Blakely ruling, and he seemed to come amazingly close to calling Justice Scalia an activist judge!)
But all the witnesses stressed in responses that a short-term fix was not essential, and perhaps not effective, to deal with any perceived "crisis." DOJ representative William Mercer stressed that the problems created by Blakely really was a case-by-case story, and he suggested that August might be the time when the dust had cleared enough to figure out whether a fix was necessary. (Also, DOJ's Mercer got a nice bit of lashing from Leahy for inconsistencies between DOJ's advocacy of the Feeney Amendment and its claim now that the independency of the USSC distinguishes the federal guidelines from the state guidelines struck down in Blakely. And then Kennedy started his question period by lamenting the way the Feeney Amendment was passed. He then forcefully asked Mercer if he supported the judge-specific reporting requirements in that legislation while suggesting that this provision should be re-considered. What goes around come around!)
Interestingly, Senator Durbin made a very nice capital punishment analogy at the start of his questioning: he highlighted that Illinois Governor Ryan's death penalty moratorium lead to a healthy re-thinking of capital punishment practices, and then suggested that Blakely can likewise lead to a healthy re-thinking of 20 years of federal guideline sentencing. He asked whether it was time for "a fresh look at the whole concept" of sentencing guidelines in the federal system, and wondered whether we "could get the the bottom of Blakely" without a complete re-examination of fairness in federal sentencing.
Finally, I got to hear Senator Hatch enter my co-authored written testimony into the record. Cool!
Line-up cards are now complete
At the Senate Judiciary Committee's site here, you can find the complete list of witnesses for today's hearing (as well as the webcast link). Here's a scorecard so you can tell the players:
Witness List for Hearing before the Senate Committee on the Judiciary on "Blakely v. Washington and the Future of the Sentencing Guidelines" Tuesday, July 13, 2004 Senate Dirksen Office Building Room 226 at 10:00 a.m.
The Honorable Bill Mercer, United States Attorney, District of Montana, Helena, MT
The Honorable John Steer, Vice Chair and Commissioner, United States Sentencing Commission, Washington, D.C.
The Honorable William Sessions, Chief United States District Judge, District of Vermont, Burlington, VT, Vice Chair and Commissioner, United States Sentencing Commission, Washington, D.C.
The Honorable Lawrence L. Piersol, Chief United States District Judge, District of South Dakota, President, Federal Judges Association, Sioux Falls, SD
The Honorable Paul G. Cassell, United States District Court Judge, District of Utah, Salt Lake City, UT
Frank Bowman, Professor of Law, Indiana University Law School, Indianapolis, IN
Rachel Barkow, Assistant Professor of Law, New York University School of Law, New York, NY
Ronald Weich, Esq., Zuckerman, Spaeder LLP, Washington, D.C.
Alan Vinegrad, Esq., Former United States Attorney, Covington & Burling, New York, NY
Apparently C-Span 2 is showing the debate over the marriage amendment live rather than this hearing, but I think the webcast will be just as good for those near a computer.
Grab your popcorn, the show's about to start!
Now on deck...
Today's the day for the Senate Committee on the Judiciary's hearing on “Blakely v. Washington and the Future of the Federal Sentencing Guidelines.” Lots of background details about the 10am hearing (and how to hear it live) are here and here and here and here. The Committee's offical site does not yet have links to testimony, though you can access written testimony I submitted with my co-authors here and I will post other testimony I have received later today.
And while we're talking baseball, here's an article noting Utah's Chief District Judge Dee Benson's view that unless the federal guidelines are overturned by the high court, he will consider them valid. As the article details, apparently Judge Benson has cast the guidelines in the role of the Florida Marlins, with Judges Cassell and Posner and others finding the guidelines unconstitutional becoming the Chicago Cubs. The sure thing, according to Judge Benson, sometimes disappears:
Just last October, thousands of Chicago Cubs fans were certain of their team's first World Series appearance in  years, with a mere five outs to make against the Florida Marlins. ... Then one of the Cubs' own fans interfered with the catch of a foul ball, and the unraveling began. As Mark Twain observed in 1897 that 'the reports of my death are greatly exaggerated,' the sentencing guidelines may similarly defy present expectations of their impending demise.
Can the Kansas system work for the feds?
Because it's late, readers will have to make up their own Wizard of Oz jokes as we consider the virtues of following the yellow brick road of sentencing reform to Kansas. The New York Times today has an article suggesting "Justices' Sentencing Ruling May Have Model in Kansas." In a similar vein, The National Association of Criminal Defense Lawyers' (NACDL) has sent a letter to Senators Hatch and Leahy (available here thanks to our friends at TalkLeft), in which it is suggested that the Kansas approach of having a bifurcated trial to allow jury consideration of sentencing enhancements is the best way to give meaning to the constitutional rights announced in Blakely. I'll be interested to hear if the Kansas approach gets discussed at any length during the Senate Judiciary Committee hearing later today.
Monday, July 12, 2004
The ABA weighs in on Blakely
I have just received a copy of the letter sent by the American Bar Assocation President Dennis Archer to Senators Hatch and Leahy, which aparently responds to a letter from the Senators asking for the ABA's views on Blakely. The letter is available for downloading here:
The whole (brief) letter is an interesting read. Here are some choice quotes:
On behalf of the ABA, I urge the Committee not to respond in haste to the decision in Blakely.... Though the implications of Blakely may be considerable, prudence counsels that congressional action should await development of case law on the applicability of Blakely to the Federal Sentencing Guidelines... [T]oo hurried a response may result in unintended consequences that run counter to the fundamental tenets of prevailing sentencing theory and Blakely’s constitutional underpinnings.
We are particularly opposed to any reform measures, whether interim or permanent, that compel waiver of Blakely rights. ... [A]ny law or policy that relies upon the ability to force defendants to waive their constitutional rights for its effect must be regarded as extremely problematic in a just society.
Following Tuesday's Senate Judiciary Hearing
The crackerjack staff at The Ohio State University Moritz College of Law library have reported to me that Tuesday's Senate Hearing about Blakely, scheduled for 10am, will be webcast. This link here brings up a page with a webcast link for when the hearing gets going. The report also indicated that the hearing would be broadcast on C-Span at some time, but the broadcast schedule has not been set. C'mon C-Span, what could possibly be more important than live Blakely hearings? And please, C-Span, at least set a schedule so I can program my TiVo!
My two cents (and those of my casebook co-authors)
Along with the wonderful co-authors of my sentencing casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines, I have prepared written testimony that I hope might in some small way have some impact at tomorrow's hearing in the Senate Judiciary Committee. You should find it here attached. The theme and advice to Congress is captured in the first two words of our title, which is "Go Slow: A Recommendation for Responding to Blakely v. Washington in the Federal System."
Download final_bermanmillerdemleitnerwright_blakely_sen. Jud. Comm. Testimony (7.13.04).pdf
The "Bowman Proposal": White Knight or Force of Darkness?
During the coming week, and especially during Tuesday's Senate hearing, we will likley hear a lot about the "Bowman proposal." This will be a reference to an ingenious Blakely-fix that Professor Frank Bowman suggested in a memo sent to the US Sentencing Commission three days after Blakely was decided. The essence of the proposal is a legislative fix to essentially take the top off the existing guideline ranges -- i.e. "amend the sentencing ranges on the Chapter 5 Sentencing Table to increase the top of each guideline range to the statutory maximum of the offense(s) of conviction." The idea is that then guideline calculations technically become adjustments to only minimums and have no impact on applicable maximums. The current buzz is that this fix is the leading candidate for congressional action in response to Blakely.
Professor Bowman's memo in support of this approach is brilliant and a required read for anyone thinking about what should happen now. Here is a copy of Frank's original memo to the USSC (which I know has already been widely circulated):
Frank has asked me to highlight that his original proposal and thoughts have evolved a bit since this original memo was sent. He wanted me to stress that "the version now receiving most consideration would (a) be sunsetted, and (b) include a right of appellate review on an abuse of discretion standard for any sentence above the guideline minimum, and that one consideration in the abuse of discretion determination would be whether the sentence was 6 months or 25% greater than the minimum." Frank may have a final "new and improved version" of his legislative proposal for me to post in the next few days.
This proposal has engendered diverse reactions and diverse predictions about what would happen if it became law. It has emerged as a compromise, short-term solution that might or might not be a great way for Congress to start dealing with Blakely, but likely has the most chance of any suggested proposals. With this memo now in hand, I will leave you to decide for yourself whether the Bowman proposal should be championed as a white knight or a force of darkness in the post-Blakely world.
Saturday, July 10, 2004
Gearing up for the all-star event
I am already getting excited about the two all-star events planned for Tuesday. Of course, most of the country will be focused on the MLB All-Star game in Houston Tuesday night, but readers of this blog also know that an all-star line-up is scheduled to testify before the Senate Judiciary Committee about Blakely (background here). I've just received word that added to the roster for the hearing is William Mercer, US Attorney from Montana, who will serve as the DOJ witness. Mercer, also a contributor to FSR, is somewhat noted (some might say notorious) for his complaints about judicial abuse of downward departure authority. Prior to passage of the PROTECT Act and its Feeney Amendment, Mercer testified before the US Sentencing Commission about cases where judges "evaded" lawful guidelines by using their departure authority.
To add to the "pre-game" excitement, I can also pass along two letters addressed to the US Sentencing Commission, one from the Practitioners' Advisory Group and the other from the Federal Defenders, concerning Tuesday's hearing and recommendations to Congress.
UPDATE: Both of the letters to the Commission are fascinating (and short) reads, and each has distinctive themes. Here's a key section from the Defenders letter:
[W]e urge the Commission to ask Congress to amend 18 U.S.C. § 3553 and for emergency authority to implement the holding in Blakely to bring the federal sentencing guidelines into compliance with the Fifth and Sixth Amendments. We believe that can best be done by modeling the system that the state of Kansas adopted when faced by a ruling from its Supreme Court, which invalidated its sentencing guidelines for the same reason that the Blakely Court struck down the Washington state sentencing guidelines. That is, to provide for a jury determination beyond a reasonable doubt for “all facts legally essential to punishment.” Id.
We have attached what we believe is a workable recommendation to Congress to amend 18 U.S.C. § 3553. It is modeled on the legislative response in the state of Kansas. The Commission would additionally need to amend the guidelines accordingly. That would require, among other things, elimination of cross-references, elimination of a number of the real-offense characteristics of relevant conduct, and changes to Chapter Six. We believe the Commission should undertake such guideline amendments with the help of an Ad Hoc Advisory Group.
And here's a key passage from the Practitioners letter:
In light of the constitutional magnitude of the issues and their practical impact, we think the Commission should recommend that no immediate legislative action be taken. It took three years to consider and craft the federal sentencing guidelines and another fifteen years of practice and amendments to bring them to their current state. Little more than a week remains before Congress is scheduled to recess for the summer. This plainly is not enough time to carefully and thoughtfully design a constitutional federal sentencing system that preserves discretion and protects defendants’ due process rights. We do not believe that a viable solution can be crafted until the courts have first had a chance to work through the constitutional issues, and the potential options have been studied by an appropriate body with input from judges, defense lawyers, prosecutors and this Commission. While the courts are struggling with sentencing decisions in the short term, legislation will have only prospective impact. We fear that a short term solution, crafted in haste, may set the terms of the future. Therefore, we counsel caution and the time for full deliberation.
We are concerned that some of the proposals for interim legislative responses that have been proposed may not comport with the spirit or the letter of the fundamental Sixth Amendment right to a jury finding beyond a reasonable doubt granted in Blakely.
Thursday, July 08, 2004
Senate hearing plan
I have heard from various sources some rough particulars about what will likely be an amazing hearing next Tuesday before the Senate Judiciary Committee (background here). Apparently there will be two panels: the first panel will have (not-yet-determined) representatives from the DOJ and the USSC; the second panel will be Ronald Weich, Alan Vinegrad, Professor Frank Bowman, and Professor Rachel Barkow.
Because I know and admire greatly the work of the folks on the second panel --- all of whom, I am proud to say, are great friends of and contributors to the Federal Sentencing Reporter --- I feel confident that the senators will be hearing lots of wise advice. I really hope they will listen.
Tuesday, July 06, 2004
Various hearing reports
Mary Price from FAMM reports that there were "no fireworks" at today's House hearing on Sensenbrenner's drug bill (background here). Apparently, Sensenbrenner was not even there, and DOJ objected to some parts of the bill, though it was "enthusiastic about the new penalties." The ABA submitted a brief letter in opposition to the bill, which can be downloaded here:
Most noteworthy was Mary's report that "after the hearing we learned that staff members from House and Senate, both sides of the aisle, are meeting tomorrow to discuss Blakely and possible fixes."
Meanwhile, I also received reports from two sources that there were fireworks today at an oral argument before a Seventh Circuit panel consisting of Posner, Easterbrook, and Kanne in US v. Booker (03-4225). Apparently, after Blakely came down, the court granted defendant’s motion last week for supplemental briefing, and the whole argument focused on making sense of the post-Blakely world. According to reports, all three judges, and Easterbrook in particular, were taking an "all-or-nothing" approach. None seemed at all open to the idea of invalidated only enhancements and leaving the rest of the guidelines operable.
These reports indicated that this Seventh Circuit panel might try to rule quickly, though I've also heard that the Fifth Circuit heard argument on Blakely issues today and that at least three other circuits are moving quickly on the Blakely front. Feel free to use the comments to predict which circuit gets the first word.
UPDATE: Here's a link which enables accessing a (poor) recording of the Booker oral argument in the Seventh Circuit (and thanks to Bill Theis for the pointer). Type in docket # 03-4225.
As I eagerly await news from folks at today's scheduled hearing before the House of Representative's Crime Subcommittee concerning Sensenbrenner's drug sentencing bill (previewed here), I just got word that the Senate has now scheduled a hearing on Blakely for a week from today. Here's the full text of the notice I received:
The Senate Committee on the Judiciary will hold a hearing on Tuesday, July 13, 2004, at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building on “Blakely v. Washington and the Future of the Federal Sentencing Guidelines.” Chairman Hatch will preside.
Thursday, July 01, 2004
Hearings on Sensenbrenner bill
While we await word from the USSC and DOJ on Blakely, we can soon expect to hear from some Congress members about federal sentencing. A hearing scheduled for Tuesday, July 6 before the House of Representative's Crime Subcommittee, although it's formally to consider a drug sentencing bill that Congressman James Sensenbrenner (R-Wis.), introduced about a week before Blakely changed the sentencing universe.
Sensenbrenner's bill, H.R. 4547, is called “Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004.” Though styled as a measure to promote drug treatment while protecting children, the bill includes a broad slate of harsh mandatory minimum sentences for a wide rnage of drug crimes.
Families Against Mandatory Minimums has a thoughtful explanation of the bill's most troublesome features here as well as a full analysis of the bill's provisions here. Likewise, the folks at TalkLeft discuss the Sensenbrenner bill's problems here and here.
Of course, the Blakely decision will be an unavoidable topic of discussion during the hearings. But how will it be discussed? Will there be any bashing of Justice Scalia and Judge Cassell as "activist judges"?