Saturday, April 07, 2007
Should departures depart after Booker?
I am very proud to recommend a terrific new Note on SSRN authored by an OSU student, Lee Heckman. The piece, available here [new fixed link], is entitled "The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World." Here is the abstract:
Since the Supreme Court decided United States v. Booker, much scholarly debate has focused on what weight the Sentencing Guidelines should be given by district courts in sentencing and appellate courts reviewing those sentences. But this focus does not advance what should be the central issue in all sentencing decisions: whether the purposes of sentencing are being fulfilled by the sentence imposed. The Booker opinion should be seen not only as creating a system of advisory Guidelines, but also as an attempt to refocus the sentencing inquiry on 18 U.S.C. Section 3553(a). Nowhere is this more relevant than in the case of a defendant seeking a reduced sentence. Prior to Booker, this was limited to narrowly defined departures from the applicable Guideline Sentencing Range. But because pre-Booker departure decisions were largely devoid of Section 3553(a) analysis--and in the case of departures based on discouraged factors, were only based on the extraordinariness of the defendant's situation--many departures were purposeless. Therefore, pre-Booker departure precedent should largely be discarded. Thus far, only the Seventh Circuit (and the Ninth Circuit to a lesser degree) has declared departures obsolete. Departure obsolescence, however, should be recognized by all courts and should be replaced with a jurisprudence that reduces sentences based on Section 3553(a)'s purposes of sentencing.
As Larry Solum might say, "Download it while its hot!"
Friday, March 30, 2007
Archive of AFDA webcast
As noted here, earlier this week Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), enabled me to again utilize the AFDA's cool Audio Webcast System for a lengthy discussion of various state-of-post-Booker-sentencing realities. Greg has now kindly created this audio file of the webcast for anyone who would still like to hear what I had to say.
As noted before, Greg provides a complimentary password registration system for members of the federal court community (judges, law clerks, federal public defenders, probation officers), and members of academia, at this sign-up page. And everyone should want to sign up for the next AFDA webcast, which is scheduled for April 23 with Alan Dorhoffer, senior staff attorney at the Sentencing Commission, discussing guideline application topics.
Monday, March 26, 2007
Another AFDA webcast on Booker developments
I have been working again with Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), to again utilize the AFDA's cool Audio Webcast System. As detailed here, my second audio webcast is scheduled for this Tuesday (March 27) at 12noon EST.
The basic plan is to provide an "informal, 90-minute discussion covering key developments in federal sentencing." I expect to focus on what we might take away from the Claiborne and Rita arguments and other current legal and political realities surrounding federal sentencing these days.
Unlike other groups seeking big bucks for such webcasts, the AFDA only charges a nominal fee for participating and the webcast is made available free to all federal court personnel, federal public defenders, and full-time law professors and students. I am grateful to Greg and the AFDA for putting this event together, and I hope to continue participating in these sorts of user-friendly webcasts on a regular basis if it helps folks trying to sort out the post-Booker world.
Wednesday, March 07, 2007
The latest USSC Booker data
I am very pleased to see a new quarterly update with the latest, greatest post-Booker sentencing data available at this link over at the US Sentencing Commission's Booker webpage. Here's how the USSC describes this data:
Quarterly Sentencing Update (Published March 7, 2007): An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2007. The numbers are prepared using data sentenced by close-of-business on December 31, 2006 and received, coded, and edited by the Commission by February 27, 2007.
I am about to head into a faculty meeting, and this data report makes for great multi-tasking materials. I'll update this post later if any really suprising numbers jump out of this new data snapshot.
UPDATE: Based on Figure C in this report, it appears that average sentences after Booker continue to rise, and may have experienced a (statistically significat?) up-tick from October 1 to December 31 2006. Also, the circuit-by-circuit variations in prosecutor-inititated and judge-initiated below-range sentences are quite intriguing.
Monday, February 12, 2007
More mile-high Booker insights
Last year the Denver University Law Review published Judge Michael McConnell's great insights on "The Booker Mess" (discussed here). Now I have learned that another insightful Booker piece is in the works at the DULR in the form of a forthcoming law review comment from student Jeff Hurd, entitled "Federal Sentencing and the Uncertain Future of Reasonableness Review." Jeff kindly arrange for advance posting in this space, and the piece can be downloaded below. The comment laments the circuit courts' guideline-centric approach to reasonableness review since Booker (which is termed "Booker minimalism"), and provide another nice and valuable read as folks rev up for next week's oral arguments in Claiborne and Rita.
When will there be more official post-Booker data?
As I have mentioned before, the US Sentencing Commission initially did a great job producing (on this page) real-time data on how Booker was affecting (or not affecting) federal sentencing outcomes in the district courts. But, after its March 2006 report on the first year after Booker, real-time sentencing data from the USSC has been in short supply. And, even more disappointingly, the Commission has not publicly explored some of the most dynamic post-Booker data issues such as defendants' fates after remands (cf. Judge McConnell's insights in Medley) or post-Booker sentencing outcomes for white-collar or other particular types of offenders.
The absence of new and up-to-date sentencing data from the USSC is especially troubling given that the Supreme Court is exploring post-Booker sentencing realities and reasonableness review in Claiborne and Rita. In addition, transitions in Congress could and should facilitate new conversations about post-Booker legislative reforms, and the USSC ought to be prompting such conversations through sophisticated data analysis about post-Booker sentencing realities.
I continue to want to hopeful and optimistic about the USSC's ability to encourage sensible, data-focus post-Booker reforms. But, as the Booker data silence grows more deafening, the USSC's post-Booker work is looking even more uninspiring.
Some recent (and older) related posts:
- Will the USSC have more data for Claiborne and Rita?
- Please feed the data junkies, USSC
- What's the USSC doing these days?
- Key questions for USSC: Now what...?
Tuesday, February 06, 2007
AFDA federal sentencing audio webcast today
Self-promoting reminder: As noted here, my first AFDA audio webcast is scheduled for this morning (Feb. 6) at 12noon EST. The plan for this webcast is to provide an "informal, 60-minute discussion covering key developments in federal sentencing." The AFDA only charges a nominal fee for participating is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.
PM UPDATE: Though there was a mid-session technical glitch, I enjoyed the opportunity to use the AFDA's audio webcast to prattle on about Booker, Cunningham and Claiborne and Rita through a different medium. If any readers listened in, I hope they wll provide feedback in the comments to this post. Thanks.
Saturday, January 13, 2007
A belated Booker birthday wish
I forgot to note yesterday that Booker is now two years old; the decision converting the federal guidelines from mandates to advice was handed down the morning of January 12, 2005. Happy (belated) birthday Booker!
As Booker begins the terrible twos, I am not sure what I find most surprising: (1) that the ruling has changed so little about the operation of the federal sentencing system; (2) that Congress passed fewer ugly federal sentencing laws in the two years after Booker than it did in the two years before Booker; or (3) that we still do not have answers to a lot of the issues and questions I discussed on this blog in the first 24 hours after the ruling.
Friday, December 08, 2006
Another notable Note on the Sixth Amendment's reach
In this recent post, I spotlighted a new Columbia Law Review Note exploring how Blakely might affect orders of restitution and forfeiture. Today it's time to note a notable Note in the Yale Law Journal. This Note is entitled "Sentencing Organizations After Booker" and is available at this link. Here is the abstract:
In United States v. Booker, the Supreme Court held that courts violate individuals’ right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. The Supreme Court, however, has never decided exactly when organizations are entitled to a criminal jury. Accordingly, Booker's full implications for the organizational sentencing guidelines are not immediately clear. Nonetheless, a careful reading of the law suggests that organizations are entitled to a jury in at least most federal criminal cases and thus that Booker's logic should apply to the organizational guidelines.
Thursday, December 07, 2006
What the latest USSC data reveal
Though I have not yet assessed all the particulars, the latest USSC sentencing data (basics here) suggest that the circuits' anti-defendant tilt in their approach to reasonableness review is significantly impacting the rate at which district judges go below the guidelines. (Some recent evidence of the circuits' anti-defendant tilt appears here and here, older evidence is here.)
Here's what I noticed from the last three data reports from the USSC's Booker page. District judges were going below the guidelines (either via departures or variances) in 12.4% of all cases through June 1 in Fiscal Year 2006. The data through June 30, however, showed judges going below the guidelines in only 12.1% of all cases in FY 2006. The latest stats through September 30 now show that judges went below the guidelines in only 11.9% of all cases for all of FY 2006.
Because these number are cumulative, this accounting does not reflect the particularly low variance rate for the last two quarters of FY 2006. My rough guess is that judges have been downward varying in less than 1 of every 10 cases over the last two quarters of FY 2006. Also Figure I in this latest data run shows that some average drug sentences have gone way up the last two quarters (especially for crack and meth); Figures A and B suggest this may be because district judges now varying less in these cases.
Wednesday, December 06, 2006
Latest Booker stats from the USSC
I am pleased to discover that, over at the USSC's Booker page, one can now find the latest "Quarterly Sentencing Update." Available at this link, this data update provides an "extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2006. The numbers are prepared using data sentenced by close-of-business on September 30, 2006 and received, coded, and edited by the Commission by November 27, 2006."
The timing is great for me, because I now have to go into a faculty meeting in which a USSC data report will seem interesting. Late tonight I hope to provide some commentary on what this latest data might show, but for now I'll just link below to some of my prior data commentaries:
Recent posts on past Booker data and related issues:
- Please feed the data junkies, USSC
- Latest USSC data: "traditional" departures making a comeback
- A new (and new type of) data report from the USSC
- Key questions for USSC: Now what...?
Tuesday, November 28, 2006
Please feed the data junkies, USSC
For over a year following Booker, the US Sentencing Commission did a great job producing (on this page) real-time data on how Booker was affecting (or not affecting) federal sentencing outcomes in the district courts. (During that time, it also did a great job catching up on pre-Booker data responsibilities). But, over the last six months, real-time data from the USSC has been in short supply; the last official post-Booker district court sentencing data only captures sentencings through June 30, 2006.
Moreover, and more disappointingly, the Commission has not publicly discussed some of the more dynamic post-Booker data issues such as defendants' fates after post-Booker remands or post-Booker sentencing outcomes for white-collar offenders. And even though the Supreme Court has now taken up reasonableness review in Claiborne and Rita, the USSC has not produced any data at all about post-Booker appeal rates or outcomes.
I am hopeful (and fairly optimistic) that we will soon see a new batch post-Booker district court sentencing data. I am also wishing (and far less optimistic) that some new and different kinds of post-Booker data will emerge from the USSC before the year is out.
Wednesday, November 08, 2006
The big other branch questions after the election
In response to prior posts here and here, commentators have suggested that Democrats now in power in Congress are unlikely to push significant sentencing reform that could subject them to attacks for being "soft on crime." Though I am hopeful that split federal government might lead to a more balanced sentencing policy discussion, I think the really big questions now are how the sentencing work of other branches are impacted by the changes in Congress:
1. Will DOJ continue to push for topless guidelines? Though I was never sure the Justice Department really wanted a topless guidelines system, its express advocacy for this sort of Booker fix has influenced both the politics and practices of the post-Booker world. I am eager to see if, when and how DOJ might change its Booker fix tune in light of the new balance of power in Congress.
2. Will the Sentencing Commission and federal judges be bolder? Over the last two years, I have repeatedly heard the USSC and federal judges express concerns about possible congressional backlash to any pro-defendant changes in the federal sentencing system. Sentencing Commissioners have suggested Congress would might react poorly if the USSC made a bold move on the crack/powder guidelines. The high within-guideline sentencing rate after Booker reflects, in part, district judges' concerns about Congress's response if judges too frequently varied from the guidelines. Might these inter-branch dynamics change significantly now?
A prosecutorial perspective on Booker
I was recently sent this link to a fascinating Booker resource: the September 2006 issue of the US Attorneys' Bulletin, which has a series of articles on Booker written from a prosecutorial perspective. Here are the articles you will find:
- Booker 101 by Ed Hagen
- Responding to the Fast-Track Disparity Argument by Paul W. Hahn
- Preparing for a Sentencing Hearing by Lori A. Hendrickson
- The Presumption of Reasonableness for Within-Guidelines Sentences by Elizabeth A. Olson
- Guideline "Departures" at Sentencing by Robert Don Gifford
- Off The Beaten Path: A Case Study of Unusual Post-Booker Litigation In United States v. Harper by Traci L. Kenner
Friday, October 13, 2006
Is a Booker reasonableness cert grant on the horizon?
Among other fun matters to debate after the SCOTUS Cunningham oral argument this week (debated here and here) is whether the Court might now be more (or less) likely to grant cert soon on a Booker issue. As detailed in posts linked below, I believe the Court needs to take up a federal sentencing case ASAP to provide lower courts with clearer and more uniform guidance about the rules and procedures for post-Booker federal sentencing.
A helpful reader noticed that two paid cases from the Seventh Circuit, Boscarino and Lister, are both listed for the Court's October 27 conference (see SCOTUS schedule here and here, case background here and here). These cases, and surely lots of pauper petitions also before the Court, likely focus on the question of whether it is proper for a guideline sentence to be deemed presumptively reasonable on appeal.
- When and how should SCOTUS take up reasonableness review?
- Taking stock of post-Booker circuit splits
- Time to take some more Blakely and Booker cases....
- Roberts, the cert pool, and sentencing jurisprudence
- Problems with the SCOTUS docket
- The central flaw in reasonableness review
- Crack reasonableness review should be as easy as 1, 2, 3
Tuesday, September 26, 2006
Seeking cert-worthiness: good post-Booker SCOTUS vehicles?
As noted here, the Supreme Court did not grant cert on any major criminal cases today. But, as discussed here, the Cunningham and Burton cases already scheduled for fall argument satisfy my ache for post-Blakely issues on the SCOTUS docket. The big brewing question, as I have previously discussed here and here, concerns when and how the Supreme Court will take up a post-Booker federal sentencing case.
Late last week I received a copy of a cert petition filed in US v. Thurston, a case coming from the First Circuit (discussed here) where the panel ruled that a large downward variance was unreasonable (despite being supported by two district court rulings), and then strangely declared that a sentence of at least 36 months was likely needed to survive reasonableness review. I view Thurston as one of perhaps many suitable cases that the Supreme Court might use to provide much-needed clarity about post-Booker sentencing procedures and reasonableness review. Interested readers can download the Thurston petition here:
A few recent related posts:
- When and how should SCOTUS take up reasonableness review?
- Taking stock of post-Booker circuit splits
- SCOTUS preview season in high gear
- Time to take some more Blakely and Booker cases....
- A criminal start to OT '06 for SCOTUS
- Joint advice for SCOTUS on Cunningham
- Ideas for starting a SCOTUS fantasy league?
Thursday, September 21, 2006
What's next on crack sentencing after Gunter?
I have received calls from reporters following up the Third Circuit's Gunter ruling (basics here, commentary here and here) asking about the decision's broader significant for crack sentencing in the federal system. Because the Gunter decision is so nuanced, as discussed here, a lot depends on how others react to it. (For more background and one thoughtful reaction, check out this long post on Gunter from the Third Circuit Blog.)
Though I though the government might seek en banc in Gunter, another brewing Third Circuit case on crack sentencing might also lead it to hold its powder for now. Most important to these broader stories, at least in the short term, may be whether and how other circuits react to Gunter. Long-term, crack sentencing may depend a lot on when and how the Supreme Court and the US Sentencing Commission (which has a public meeting today) starts dealing with broader Booker issues.
A few related crack sentencing posts:
Wednesday, September 20, 2006
"Chaos in Sentencing"
In this interesting column entitled "Chaos in Sentencing" for the Washington Post, Andrew Cohen writes about "two vital court rulings were issued in August highlighting the extent to which our federal sentencing rules and policies are broken." Here are a few highlights:
Last month, the irrepressible U.S. District Court Judge William G. Young in Boston dropped upon an unsuspecting nation a 125-page ruling -- a mini-treatise, really -- on what is currently wrong with federal sentencing law, why this is so, and what judges and elected officials can and should do about it. Then, a few days later, a divided 8th U.S. Circuit Court of Appeals [typo alert: should be 6th Circuit] overturned a capital sentence for a fellow name Jason Getsy after concluding that his punishment from the Ohio courts was "arbitrary" and unfair and thus a violation of the Eighth Amendment's prohibition against "cruel and unusual" punishment.
Taken together, the two rulings represent the sorry state of the art in an area of the law that the United States Supreme Court tried to revamp last year in United States v. Booker when it held unconstitutional the mandatory nature of the Federal Sentencing Guidelines. Both orders focus primarily upon plea bargains and their corrosive impact upon fairness in federal sentences. Both orders take to task the existing sentencing regime, such that it is. Both remind us of the constitutional need for a nexus between crime and punishment, verdict and judgment. Both make compelling cases for how and why Congress and the Supreme Court have utterly failed to fix sentencing problems that have been apparent and growing worse for years.
I am not sold on the link between Booker and the Sixth Circuit's habeas work in Getsy. But I do very much like Cohen's promotion of Judge Young's terrific Kandirakis opinion (basics here), as well as the overall spirit of Cohen's kvetching about the modern state of sentencing. Of course, as detailed in some posts below, there are plenty of suggested solutions.
Some related posts:
Thursday, August 17, 2006
Extraordinary paper on post-Booker sentencing
Amy Baron-Evans, the National Sentencing Resource Counsel to the Federal Public and Community Defenders, has produced an extraordinary memorandum entitled "The Continuing Struggle for Fair, Effective and Constitutional Sentencing After United States v. Booker." This document, which can be downloaded below, is filled with 70+ pages of insights worth quoting. Here is just one of many passages worth highlighting:
Defense counsel must help to ensure that judges retain and exercise their sentencing power by providing arguments to support reasoned decisions that will be upheld on appeal (or not appealed at all), that Congress can respect, and that the public can understand. There are powerful arguments to be preserved below and raised in petitions for certiorari that post-Booker sentencing violates the sentencing law under basic principles of statutory construction, the Sixth Amendment right to jury trial, the Fifth Amendment right to proof beyond a reasonable doubt, and the Sixth Amendment right to confront and cross-examine adverse witnesses. But, as we have seen, legal arguments are not enough.
Even in circuits that have rejected presumptive guidelines, the guidelines provide a comfortable numerical anchor, and many judges have little knowledge of the guidelines' history and development other than what they are being told by advocates of the status quo.... Thus, regardless of what circuit you are in or what stage of the litigation, it is necessary to demonstrate as a factual matter that the guidelines do not comply with 18 U.S.C. § 3553(a), and that a lower sentence does a far superior job.
Wednesday, August 16, 2006
Taking stock of post-Booker circuit splits
In this recent post, where I pondered when and how the Supreme Court will take up a case addressing post-Booker reasonableness review, I mentioned that the circuits are split on a various aspects of federal sentencing after Booker. Here I want to briefly chronicle major splits and ask for reader help in identifying any I have overlooked.
1. The presumption of reasonableness: The circuits are nearly evenly split on whether a within-guideline sentence should be afforded a presumption of reasonableness on appeal. But, since nearly every within-guideline sentence gets affirmed with or without the presumption, this split seems more a matter of style than substance.
2. The persistence of Rule 32(h): The circuits are nearly evenly split on whether Rule 32(h) requires a district court to give advance notice before varying from the advisory guidelines range. Though this is significant split, I suspect most district courts give the parties some opportunity to address key 3553(a) factors before sentencing, and thus I doubt this split is very consequential in most cases.
3. The role of "traditional" departures: The Seventh Circuit has pioneered the notion that "traditional" departures are obsolete after Booker, and the Ninth Circuit has recently echoed this sentiment. But most other circuits (and the Sentencing Commission) have expressly called for district courts to conduct a departure analysis before considering 3553(a) factors. Though this might seem like a matter of semantics, the role of departures can ripple through many aspects of the post-Booker world (as discussed here and here); I think this is an important issue that someone needs to resolve in order to have a more uniform federal sentencing system.
4. The applicable version of the guidelines: The Seventh Circuit's recent Demaree ruling (discussed here and here) held that, after Booker, district courts may (and should?) apply the most recent version of the now-advisory guidelines even when they recommend a longer sentence than the guidelines applicable at the time of the defendant's crime. But other courts and litigants have been operating under the pre-Booker rules for using the guidelines applicable at the time of the crime. Though an intricate ex post facto matter, this issue could have more impact on post-Booker sentencing than any other issue listed here (especially in white-collar cases and other cases in which the guidelines have changed a lot in recent years).
There have been, of course, lots of post-Booker splits in the district courts about crack sentencing, fast-track policies, acquitted conduct, burdens of proof and other large and small issues. But some of these issues have been harmonized by circuit rulings, and none have to date produce a tangible circuit split. There may be, however, other important splits I have not mentioned, and readers are encouraged to supplement my list.
Tuesday, August 15, 2006
Federal sentencing around the blogosphere
The federal defender blogs, as well as the White Collar Crime Prof Blog, have a lot of recent posts about notable recent federal sentencing developments:
- The Sixth Circuit Blog discusses quite critically here the circuit's reasonableness work in Davis (basics here).
- The Ninth Circuit Blog discusses in this post the circuit's new take on the place of departures in Mohamed (basics here).
- The WCCP Blog has insightful commentary here and here on a few high-profile white-collar sentencings. Notably, in both cases discussed the defendant received below guideline sentences.
Thursday, August 10, 2006
When and how should SCOTUS take up reasonableness review?
With the Eleventh Circuit today in Hunt thoughtfully rejecting a presumption of reasonableness for within-guideline sentences (details here), I am wondering when and how the Supreme Court will take up a case addressing post-Booker reasonableness review. The circuits are split not only on this presumption issue, but also on a range of other large and small aspects of the standards and nature of appellate review after Booker.
Because I think the circuits are very wrong when forcing district courts to follow the crack guidelines (as discussed here and here), I am hoping SCOTUS might explore reasonableness through review of a cracked-up crack ruling like Jointer from the Seventh Circuit or Eura from the Fourth Circuit. But these cases raise so many hot button issues, perhaps the Court would be wise to take a lower profile case. (Of course, the Court did use the high-profile Rodney King case a decade ago to consider departure authority in Koon.)
Given that a legislative Booker fix does not seem likely in the short term (as discussed here), the Supreme Court should no longer resist exploring reasonableness review on the assumption that the Booker remedy may not last. Of course, the Court might indirectly address these issues in the Cunningham case from California to be argued in October. Nevertheless, the federal sentencing world could be much more orderly (and less disparate) if the Supreme Court were to directly address reasonableness review ASAP.
Wednesday, July 12, 2006
Booker developments (that I can't fully process)
For some reason, I cannot currently access pdf files with my on-the-road computer. This means I can provide only a vague report on two notable Booker developments:
- From the 11th Circuit, this article reports that another below-guideline sentence has been reversed for being too lenient. The decision in US v. Martin, No. 05-16645 (11th Cir. July 11, 2006) (available here), is newsworthy in part because it involved a HealthSouth executive.
- From the Sentencing Commission, I see on this Booker webpage that the USSC has released another batch of post-Booker data. I doubt the broad data story has changed recently, but small new trends might be appearing as the Booker remedy settles in further.
If I get access to a pdf-friendly computer anytime soon, I might have some commentary on these developments.
Sunday, July 09, 2006
Will there be any Booker fireworks this summer?
A few weeks ago, I noted here how quiet the post-Booker world seems. After Congressman James Sensenbrenner sent up incediary Booker bottle rockets back in March (details here and here), I was prepared for a summer filled with Booker fix fireworks. But, with July 4th now come and gone, I am thinking we might have an unusually calm pre-election sentencing summer.
Though my ivory-tower perspective may be skewed in various ways, here is my current branch-by-branch take on the post-Booker landscape:
The legislative branch: The Booker ruling put the sentencing ball in Congress's court, but Congress has shown little interest in playing over the last 18 months. A few bills for topless guidelines have been discussed, but no serious Booker fix momentum has ever developed. I am, of course, pleased that the many dire predictions about what Congress would do after Booker have not (yet) come true. Post-Booker legislative (non)developments provide another reminder of the complicated and dynamic political and practical realities that surround sentencing reform.
The executive branch: The Justice Department has been advocating a "minimum guideline system" since last summer, but its push for such a system seems tepid. My latest thinking is that DOJ does not want all the messy litigation and uncertainty that would follow enactment of a topless guideline system. Rather, advocacy of such has been an effective means for encouraged federal judges to play nice with advisory guidelines, which in turn has presereved much of the pre-Booker system.
The judicial branch:
- The Sentencing Commission has crunched a lot of numbers since Booker, but it has done precious little policy work and has avoids post-Booker "hot spots" like crack sentencing or the use of acquitted conduct. Because the guidelines have remained king after Booker, it is perhaps not surprising that the USSC is content to produce lots of data and few recommendations.
- The lower courts have divided over many post-Booker particulars, but the circuits have ensured that the guidelines are still the center of the federal sentencing universe.
- The Supreme Court has steered clear of any Booker follow-up so far, but next Term's consideration of Blakely's applicability in California in Cunningham could have significant ramifications for federal sentencing after Booker. Also, if Congress continues to show little interest in a Booker fix, I suspect the Court will seriously consider taking up some post-Booker issues directly next Term.
Wednesday, June 28, 2006
All quiet on the Booker front?
With the Supreme Court issuing lots of criminal law opinions and with the death penalty doing its usual job of hogging up attention, I have not given much thought to the post-Booker world lately. Moreover, except for the regular wins by prosecutors in the Eighth Circuit (examples here and here and here), there have been surprisingly few notable Booker opinions in the circuit courts recently. And the Sentencing Commission, which was producing updates of post-Booker sentencing statistics on this page every few weeks not long ago, now has only produced one update in the last three month.
So I am now wondering, as we approach a full 18 months since the Booker ruling, has everyone started to settle in for the long haul with the Booker remedy?
Of course, the most critical institution to focus upon is Congress, which could use a debate over a legislative Booker to make crime and punishment issues the next political rhetoric topic du jour. As noted in this this recent post, a "topless guidelines" Booker fix bill has been in draft form for a number of weeks. But this bill has not yet even been introduced in the House, and there is no evidence that either body of Congress is ready to move quickly on a massive restructuring of the federal sentencing system.
Last September in this post, I had the temerity to ponder whether the Booker remedy might be here to stay. Nearly a year later, the prospects seem even brighter. Then again, maybe this is just the calm before the storm.
Wednesday, June 07, 2006
Encouraging a critical race examination of post-Booker developments
During the Miami FSG conference, one troubling idea kept coming to mind: white defendants seem to be doing better than minority defendants in the post-Booker world.
Notably, the Sentencing Commission's March Booker report asserts that, after Booker, "black offenders are associated with sentences that are 4.9% higher than white offenders." And here are other notable data from post-Booker statistics:
- According to Table 25 in the USSC Booker report, roughly 1 in 5 first offenders who are white are getting a below-guideline sentence after Booker. For black first offenders, the number is roughly 1 in 6; for hispanic first offenders, the number about 1 in 9.
- The theft/fraud category of crimes — crimes which have a statistically higher percentage of have white defendants — have the highest rate of Booker variances according to the most recent post-Booker data.
In addition to these data points from the post-Booker world, consider also these qualitative realities:
- Though the crack-cocaine debate has an obvious racial dimension, circuit rulings rejecting efforts to impose lower crack sentences have not fully grappled with the racial impact of the 100-1 crack/powder ratio.
- As evidenced by this recent (record?) variance, it seems some of the larger Booker breaks have gone to white-collar defendants.
With these comments, I do not mean to make a blanket assertion that racial bias infects the post-Booker world. But I do hope to encourage everyone to examine closely post-Booker developments through the lens of race and to explore critically whether there may be skews in how increased discretion is being applied in the federal sentencing system after Booker.
Some related posts on race and federal sentencing:
- Noticing different legislative reactions to meth and crack
- New ACS issue brief on crack sentencing disparity
- Race and reform
Tuesday, May 30, 2006
Interesting split Fifth Circuit ruling on "execution impact" testimony
Splitting on an intriguing issue about capital sentencing procedure, the Fifth Circuit today in Jackson vs. Dretke, No. 05-70031 (5th Cir. May 30, 2006) (available here) resolves a habeas case by refusing a certificate of appealability to a defendant on "his challenge to the exclusion of execution impact testimony." (At the sentencing phase of his state trial, the defendant sought "to question his friends and family on (1) whether they wanted him to die and (2) what the impact on them would be if he were executed.")
The majority opinion authored by Judge Smith concludes that "it was not objectively unreasonable for the state court to decide that extant Supreme Court holdings should not be extrapolated to include testimony as to the impact of a death sentence on family and friends." The dissenting opinion by Judge Dennis reasons that the habeas challenge merits further exploration, in part because "[e]xecution impact testimony easily satisfies [a] sentencing relevance test — it is testimony as to the value of the defendant's life and cost of his death to family and friends, and this value or cost could serve as a basis for the sentencer to determine that the death penalty should not be imposed."
Wednesday, May 24, 2006
Latest FSR issue now on-line
The latest issue of the Federal Sentencing Reporter (Volume 18, No. 3), which is entitled "Taking Stock a Year After Booker" and discussed in this post, is now available on-line through the Caliber service at this link. FSR's publisher has kindly made these two articles from the issue available free on-line:
- Lynn Adelman & Jon Deitrich, Disparity: Not a Reason to "Fix" Booker (available here)
- Adam Lamparello, The Unreasonableness of "Reasonableness" Review: Assessing Appellate Sentencing Jurisprudence After Booker (available here)
Details on other recent FSR issues:
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 18.1: State of Blakely in the States
- FSR Issue 17.5: Is a Booker Fix Needed?
- FSR Issue 17.4: The Booker Aftershock
Monday, May 15, 2006
A revised draft of "Conceptualizing Booker"
Back in February, I posted here an early draft of my article entitled "Conceptualizing Booker," to appear in the Arizona State Law Journal as a follow-up to this great sentencing conference. I now have a revised draft, which can be downloaded below. In my prior post, I set out a portion of the article's introduction, so this time let me provide snippets from the final Part of the paper:
The Supreme Court's development of its modern Sixth Amendment jurisprudence over the last decade has been contentious and convoluted, and the Booker decision made a conceptually muddled jurisprudence concerning sentencing procedures even more opaque. Unfortunately, a fractured Supreme Court has been unable (or at least unwilling) to work together to forge a modern sentencing jurisprudence that is conceptually clear, and lower courts and legislatures have had to try to make the best of a chaotic doctrine that has emerged in fits and starts and evolved with unexplained gaps and unexpected growths. Tellingly, Professor Kevin Reitz has come to describe the Supreme Court's recent Sixth Amendment jurisprudence as "a kind of constitutional 'Swiss cheese.'"
The vision of Booker developed in this Article could perhaps provide a conceptual framework for reordering the Supreme Court's Sixth Amendment jurisprudence. Because the Court's sentencing jurisprudence is necessarily still in development as it confronts new and challenging constitutional questions that emerge from modern sentencing systems (and because the Court has some new members who might bring new perspectives to this jurisprudence ), a conceptual view of Booker focused on sentencing as a distinctive judgment-centered enterprise could have important implications for the Court's continuing work in this area. In this concluding Part, I will briefly sketch the possible implications of conceptualizing Booker for the Supreme Court's recent Sixth Amendment jurisprudence, as well as for the proper approach to federal guideline sentencing in the wake of Booker.
Latest issue of FSR off to press
I am happy to announce that another issue of the Federal Sentencing Reporter is about to go to press. This forthcoming issue (Volume 18, No. 3) is titled "Taking Stock a Year After Booker" and it follows up themes covered in these three recent FSR issues covering Booker and post-Booker developments:
- FSR Issue 17.4: The Booker Aftershock
- FSR Issue 17.5: Is a Booker Fix Needed?
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
(Regular readers may recall a Blakely interlude is all the Booker coverage through FSR Issue 18.1: State of Blakely in the States.)
My opening commentary to this latest FSR Booker issue, entitled "Now What? The Post-Booker Challenge for Congress and the Sentencing Commission," can be downloaded below. The full contents of this latest FSR issue are listed below, and the Federal Sentencing Reporter can be ordered here and accessed electronically here.
- Douglas A. Berman, Now What? The Post-Booker Challenge for Congress and the Sentencing Commission (Download fsr_18.3 Ed Obs.pdf)
- Lynn Adelman & Jon Deitrich, Disparity: Not a Reason to "Fix" Booker
- Mark Osler, Ball in a Cup: The Case for Stability and Patience
- Carissa Byrne Hessick, Prioritizing Policy Before Practice After Booker
- Stephen R. Sady, Guidelines Appeals: The Presumption of Reasonableness and Reasonable Doubt
- Adam Lamparello, The Unreasonableness of "Reasonableness" Review: Assessing Appellate Sentencing Jurisprudence After Booker
- Douglas A. Morris, FYI: Supervised Release and How the PROTECT Act Changed Supervised Release
- Evan Lee, Should the ALI Take a Position on Capital Punishment?
- U.S. Sentencing Commission, Executive Summary of Booker Report (March 2006)
- Judge Paul Cassell, Statement as Chairman of the Committee on Criminal Law on Behalf of the Judicial Conference of the United States (March 2006)
- U.S. Attorney William W. Mercer, Statement Before the House Judiciary Subcommittee on Behalf of the United States Department of Justice (March 2006)
- The Constitution Project Sentencing Initiative, Principles For The Design And Reform Of Sentencing Systems: A Background Report (March 2006)
Monday, April 24, 2006
Judge McConnell on "The Booker Mess"
Thanks to a tip from a helpful reader, I see here that Tenth Circuit Judge Michael W. McConnell has authored the Foreword to the latest issue of the Denver University Law Review on a topic dear to my heart. Judge McConnell's article is entitled "The Booker Mess," and the full cite for the article, is 83 Denv. U. L. Rev. 665 (2006). The article, which is available at this link, discusses the data on post-Booker reversal rates and sentencing trends. After a quote from the Disney movie version of the Pirates of the Caribbean: The Curse of the Black Pearl, the article starts with this paragraph:
Each year, over 65,000 criminal defendants are sentenced in the federal courts; about 1,200 are sentenced each week. Since 1984, Congress has required sentences to be determined according to a strict and detailed set of Sentencing Guidelines. On January 12, 2005, in United States v. Booker, the Supreme Court declared this sentencing system unconstitutional. The Justices left many questions unanswered regarding how the lower courts should treat defendants sentenced under the prior regime and how to sentence defendants in the future. These issues occupied much of the attention of federal courts during 2005. The Tenth Circuit alone rendered two en banc decisions and some 226 panel decisions (as of this writing), addressing how to deal with defendants who were sentenced before Booker was decided. Nationwide, this retrospective question produced a four-way circuit split and literally thousands of panel decisions. And it will require many more decisions to figure out how to apply Booker moving forward.
And Judge McConnell's article closes with these sentiments:
I am inclined to think that a modest increase in the discretion of district judges, exercised judiciously, could enhance justice. In this sense, I welcome the Booker result, even though I cannot endorse its reasoning. But it was more important to take a serious look at the statutes governing sentencing. This is a matter for Congress. I fear that Booker, by putting forward an extravagant claim of constitutional principles coupled with an anemic and self-contradictory remedy, may have set back the cause of reform, to relatively little purpose.
Monday, April 03, 2006
House Booker hearing follow-up
Today I received a copy of very interesting supplemental written testimony from attorney James Felman, who testified at the March 16 House hearing on Booker (and whose original testimony can be accessed here). This supplemental written testimony, which can be downloaded below and is a very interesting read, addresses issues such as sex offender sentencing and cooperation discounts that were some of the focal points during the House hearing.
Some related prior posts:
- Topless guidelines bill in the works from Sensenbrenner
- A viewer's guide to Booker House hearing
- Following the standard script at House hearing
- More reports from House Booker hearings
- Sensenbrenner takes the gloves off ... will the judiciary fight back?
- Quotes from Sensenbrenner press conference
- Updates on Booker hearings
- Let's get ready to Booker rumble...
April 3, 2006 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Two thoughtful (and unlinkable) reviews of the post-Booker world
The former article, titled "Not so free after all," is effectively summarized here by David Oscar Markus at the Southern District of Florida Blog. It is primarily focused on the post-Booker world in South Florida. The latter article, which is titled "Sentences: Run-On or Reduced?," covers the national scene more fully and highlights again why Booker fix buzz is not likely to subside anytime soon.
UPDATE: The Daily Business Review article is now available via law.com at this link. It is a long and comprehensive article that covers a lot of ground effectively and includes a number of interesting quotes.
Tuesday, March 28, 2006
Editorial lauding post-Booker sentencing system
Sunday's Milwaukee Journal Sentinel included this effective editorial about federal sentencing, which endorsed current post-Booker realities. Here is a snippet:
Early last year, the nation's top court changed how federal judges set the sentences they issued. Before the Supreme Court decided United States vs. Booker, judges had to fit sentences within specific limits. Afterward, they could treat those limits as suggestions, not mandates. The switch served the cause of justice....
The old system straitjacketed judges too much, such as Utah's U.S. District Judge Paul Cassell, known as a hard-line conservative. He lamented from the bench that he had no choice but to put a first-time offender in prison for 55 years for dealing marijuana. Justice demands that judges be allowed to exercise discretion. Otherwise, you may as well replace him or her with a computer program.
The rationale behind mandatory sentencing is that it keeps punishment uniform. But it only seems to do so. It simply transfers discretion from the judge to the prosecutor, who exercises it by choosing which charges to bring or whether to bring any at all. Prosecutors use the draconian sentences as a club to extract plea bargains. The system allows U.S. attorneys to dish out leniency in exchange for cooperation. Thus, suspects with much information to trade can get light sentences. One consequence is that drug ringleaders have gotten much shorter sentences than defendants only tangentially connected to the ring, such as a leader's girlfriend, since the latter has little information to swap. Giving the judge discretion can prevent such injustices.
Saturday, March 25, 2006
Another assessment of the post-Booker world
The Drug War Chronicle has this recent article reviewing the state of the post-Booker world, which discusses both the recent USSC report and House hearing about post-Booker sentencing (background here). The piece mostly reflects a defense perspective on these issues, and here is how it begins:
Fourteen months ago, the US Supreme Court upset the federal sentencing apple cart when it ruled in US v. Booker that the sentencing guideline scheme in place for nearly two decades unconstitutionally allowed judges to sentence defendants based on facts not heard by a jury. As a remedy, the Supreme Court held the guidelines could no longer be mandatory, but only advisory. While some sentencing reform advocates hoped that more humane drug sentences would result, and conservative congressmen and the Justice Department worried that somebody somewhere would not do enough prison time, after a year of post-Booker sentencing, little has changed.
Monday, March 20, 2006
The USSC Booker report is back (with corrections)
As I noted here late Friday, the US Sentencing Commission's 277-page Booker report released last week (discussed here and here) went missing from the USSC website so that the Commission could do one last check for any typographical, technical, or computational errors. I am pleased to report that the Booker report is now back on the USSC website, and it appears to be bigger and better than ever.
Specifically, the Booker report is now titled "Final Report on the Impact of United States v. Booker on Federal Sentencing" and it now runs a full 338 pages(!!) at this link. In addition, this errata note explains that there have been some corrections. Here is how the errata sheet begins:
On March 13, 2006, the Sentencing Commission released on its website an electronic version of its report on the impact of United States v. Booker on Federal sentencing. This report endeavors to provide sentencing data in a format relevant and meaningful to post-Booker analysis and therefore reports data outside of the Commission's customary fiscal year reporting practices. In the process of finalizing the report for printing, three programming errors were identified that required correction of certain data.
The most notable correction/change seems to concern the within-guideline sentencing rate after the PROTECT Act and before Booker: "As a result [of a programming error], for the post-PROTECT Act time period, the preliminary report understated the percent of cases sentenced within and above the applicable guideline sentencing range, and overstated the percentage of cases sentenced below the applicable guideline sentencing range."
UPDATE: An eagle-eye reader has now discovered that, as of Tuesday morning, the Final Booker report from the USSC at this link is back down to its original size of a svelte 277 pages. I do not know exactly what accounts for the miraculous slimming overnight, but perhaps the extra 60 pages that appear late on Monday was all water weight.
Eighth Circuit affirms another lengthy sentence for an uncharged murder
In his opinion for the Court in Blakely, Justice Scalia assails the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge." The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it...."
If this possibility truly concerns Justice Scalia and other members of the Blakely majority, the Supreme Court ought to be interested in a cert. petition coming from today's unpublished decision by the Eighth Circuit in US v. Rashaw, No. 05-1839 (8th Cir. Mar. 20, 2006) (available here). As detailed in the first paragraph, the Rashaw case fits Justice Scalia's description:
A jury convicted Geoffrey L. Rashaw on two counts of being a felon in possession of a firearm and one count of possessing an unregistered firearm. At Rashaw's post-Booker sentencing, the government presented evidence that Rashaw possessed firearms in connection with a double homicide. Based on the evidence, the district court set Rashaw's base offense level at 43 ... [which under the] sentencing guidelines set the sentence at life imprisonment. Because statutory provisions limited the sentence on each count to ten years, however, the court sentenced Rashaw to three consecutive 120-month terms of imprisonment under U.S.S.G. § 5G1.2(d).
As the Eighth Circuit explains, "Rashaw appeals arguing the 360-month sentence is unreasonable because the district court expressly based the sentence on a finding that he had committed an unrelated, uncharged double murder." In addition, Rashaw "argues that under United States v. Booker, 543 U.S. 220 (2005), the double murder had to be found by a jury beyond a reasonable doubt, rather than by a judge on a preponderance of the evidence." The Eighth Circuit is unconvinced:
Because the district court applied the guidelines in an advisory manner, the court could find sentence-enhancing facts by a preponderance of the evidence.... The double murder was relevant conduct that was properly considered in deciding Rashaw's guidelines range and the factors in 18 U.S.C. § 3553(a).
So, as Justice Scalia feared, Rashaw is convicted at trial of illegal possession of firearms, and gets 30 years for uncharged murders. But this case does not exactly fit Justice Scalia's description: the Eighth Circuit notes that "Rashaw points out the guns he possessed with respect to his sentence were not involved in the double homicide." No problem, says the Eighth Circuit: "The § 2K2.1 enhancement for using a firearm in another felony need not be the same firearm involved in the offense of conviction." Wow!
If Blakely's procedural rights are ever going to have any bite in an "advisory" federal sentencing system, this Rashaw case would seem to be a good vehicle for testing the courage of the Blakely five's convictions. And I continue to wonder what Justice Alito and Chief Justice Roberts, if they share aspects of Justice Scalia's judicial philosophy, might think about cases of this sort.
Related posts on uncharged murder sentencing:
- Sentenced for an uncharged murder
- Sentenced for three uncharged murders
- Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes
- Eleventh Circuit approves sentences based on hearsay evidence of uncharged murders
March 20, 2006 in Blakely Commentary and News, Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack
Sunday, March 19, 2006
Reviewing a week dominated by Booker talk
As detailed below, when not focused on my NCAA bracket, my time this week was mostly occupied with all the Booker action taking place inside the Beltway.
BOOKER REPORT AND OTHER USSC DEVELOPMENTS AND COMMENTARY
- Sentencing Commission releases Booker report!
- Initial reflections on the USSC Booker report
- Editorial on USSC Booker report and reaction
- Interesting testimony at USSC hearing
- Where's the USSC's Booker report!?!?
BOOKER HOUSE HEARING DEVELOPMENTS AND COMMENTARY
- A viewer's guide to Booker House hearing
- Following the standard script at House hearing
- More reports from House Booker hearings
- Sensenbrenner takes the gloves off ... will the judiciary fight back?
- Quotes from Sensenbrenner press conference
- Updates on Booker hearings
- Let's get ready to Booker rumble...
STATE SENTENCING DEVELOPMENTS AND COMMENTARY
- California's sentencing and corrections woes
- Rhode Island considering reducing drug sentences
- Ohio AG response to reconsideration motion in Foster
- Foster's impact on plea bargains and appeals
OTHER NOTABLE SENTENCING DEVELOPMENTS AND COMMENTARY
- The federal litigation shock of Blakely and Booker
- Judge Presnell on crack/powder disparity
- Constitution Project releases report on sentencing reforms
- Why did Justice Alito withdraw from Sentencing Initiative?
Thursday, March 16, 2006
Following the standard script at House hearing
TI have just returned from speaking at the Ohio Northern University Pettit College of Law (where I was wonderfully hosted), and I see that today's House Booker hearing is now web archived at this link along with the written testimony of all four witnesses. I surmise from the written testimony that each witness largely played the expected roles: DOJ representative Bill Mercer pushed for topless guidelines as a Booker fix, while everyone else highlighted that there was no need for an immediate legislative response to Booker.
I hope to comment more about the House hearing after having a chance to watch the full webcast late tonight. (First, keeping my priorities straight, I have to watch some basketball and check my brackets.) But one line in Mercer's written testimony really caught my eye. In calling for a Booker fix, Mercer says DOJ believes "the simplest, most efficient, and most effective way of reinstituting mandatory sentencing is through a minimum guidelines system."
In at least one sense, this is blatant falsehood: the simplest way to reinstitute mandatory sentencing would be for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker. As Justice Stevens explained, that remedy would not require any changes to the Sentencing Reform Act; Congress could simply express its intent for the guidelines to be mandatory even though aggravating facts triggering longer sentences would have to be proven to a jury or admitted by the defendant. This solution would clearly be constitutional and reinstitute mandatory sentencing, but DOJ does not seek a legislative solution that — gasp! — might actually give defendants the procedural rights that Blakely and Booker were supposedly about.
Wednesday, March 15, 2006
Updates on Booker hearings
Tomorrow at 10:30 am is the big oversight hearing in the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security entitled "United States v. Booker: One Year Later -- Chaos or Status Quo?". Subcommittee Chair Rep. Howard Coble (R-N.C.) has issued this news advisory which confirms the witness list I detailed in this post and reveals that testifying on behalf of DOJ will be William Mercer.
Today, the comments by House Judiciary Committee Chair James Sensenbrenner's (detailed here and here) overshadowed the hearing held by the US Sentencing Commission. The USSC just posted this agenda/witness list from the hearing, and I would be eager to hear a report from anyone in attendance.
Back to the House heing, the US Courts has this press release about Judge Paul Cassell's planned testimony on behalf of the Criminal Law Committee of the Judicial Conference of the United States. As the press release details:
Congress is being told there is "no need for ... 'Booker fix' legislation" because federal judges' practices in sending convicted criminals to prison remain much the same as they were before the Supreme Court's 2005 decision that invalidated mandatory sentencing guidelines.
Judge Cassell's full prepared written testimony (all glorious 80 pages) which fills out this point — and many other astute points — can be accessed at this link. And when you've consumed Judge Cassell's amazing effort, you can then also read the prepared written testimony of attorney James Felman, who kindly sent his text for me to post here: Download felman_testimony.pdf
Sensenbrenner takes the gloves off ... will the judiciary fight back?
As I explained in posts here and here, I read the US Sentencing Commission's impressive (and massive) Booker report to suggest major Booker fix legislation is not needed. But, as evidenced by the fiery statements in this press release from House Judiciary Committee Chair James Sensenbrenner, one can have a different take on the post-Booker world. Here are snippets from Sensenbrenner's statement:
Last year, I stated that the Judiciary Committee would take no action in response to the Supreme Court's decision, but would evaluate this issue one year later after there was sufficient experience with the "advisory" guideline system.
The data is now in and the picture is not pretty. The Sentencing Commission's report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act, and jeopardized the basic precept of our federal court system that all defendants should be treated equally under the law.
The PROTECT Act enacted in 2003 ensured that appropriate sentences would be administered to sex offenders, pedophiles, child pornographers, and those who prey on our children. Thus, I am troubled that the Commission's Report shows that these fundamental sentencing reforms have been effectively eliminated. That is neither good nor acceptable for justice and public safety.
While the overall average sentence length increased after the Booker decision, such an increase reflects the fact that Congress amended numerous criminal statutes, thereby increasing the applicable sentencing range for crimes such as identity theft, terrorism, cybercrime, and sex offenses. Even with these increased guideline ranges, the sentencing data shows that Federal judges have not embraced, and in many cases, have undermined, Congress' specific intent in these areas.
In response to the problems described in this report, the Judiciary Committee intends to pursue legislative solutions to restore America's confidence in a fair and equal federal criminal justice system. I look forward to working with the Sentencing Commission, the Justice Department, and others to bring together a practical and effective solution to this problem.
I am highly discouraged by Sensenbrenner's heated rhetoric and troubled by a number of his claims. The idea that Booker produces "unrestrained judicial discretion" is inaccurate, as is the suggestion that federal judges are undermining the purposes of the Sentencing Reform Act or Congress' specific intent. And this statement certainly indicates that Sensenbrenner is eager to pursue Booker fix legislation.
Of course, if Sensenbrenner was truly committed to a "fair and equal federal criminal justice system," he could propose legislation to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker. As Justice Stevens explained, that remedy would not require any changes to the Sentencing Reform Act; Congress could simply express its intent for the guidelines to be mandatory even though aggravating facts triggering longer sentences would have to be proven to a jury or admitted by the defendant. This solution would (1) clearly be constitutional, (2) make the guidelines mandatory again, and (3) produce a "practical and effective solution" to the problems Sensenbrenner claims to be concerned about.
The federal litigation shock of Blakely and Booker
With thanks to How Appealing, I see that the Administrative Office of the U.S. Courts has issued this news release which documents some of the impact of Blakely and Booker on the workload of the federal courts. Here are some criminal law filing details from the release:
Criminal appeals jumped 28 percent in FY 2005 to 16,060, with growth in cases related to nearly all types of crimes. The most significant increases were in appeals related to drug offenses (up 31 percent to 6,099); immigration (up 55 percent to 2,896); firearms and explosives (up 23 percent to 2,505); and property (up 15 percent to 1,967)....
Original proceedings [in circuit courts] climbed 23 percent to 5,017 as state and federal prisoners filed 3,617 second or successive motions for permission to file habeas corpus petitions (up 42 percent) following the Supreme Court's decisions in Blakely v. Washington and U.S. v. Booker....
The new release also has some interesting data in changes in the case mix of criminal filings in the federal district courts:
Nationwide, criminal filings in the U.S. district courts fell 2 percent to 69,575 in FY 2005, and the number of defendants in these cases dropped 1 percent to 92,226. Despite the overall decline, increases occurred in cases involving drugs other than marijuana, sex offenses, and immigration offenses.
Tuesday, March 14, 2006
Initial reflections on the USSC Booker report
As noted before, the US Sentencing Commission's impressive (and massive) Booker report (available here) is a bit overwhelming. Nevertheless, having completed a quick first pass, I want to explain why the report reinforces my view that major Booker fix legislation does not seem necessary.
To begin, we must recall key reasons why the pre-Booker system cannot be the sole metric for judging the post-Booker world. As I explained in this Legal Affairs debate with Frank Bowman:
[There are] two fundamental reasons why pre-Booker realities cannot nor should not be our gold standard for assessing the current state of federal sentencing: (1) the pre-Booker sentencing system, according to the Supreme Court, violated defendants' Sixth Amendment rights, and (2) the pre-Booker sentencing system, according to nearly all observers, distinguished itself by virtue of its overall complexity, rigidity and harshness. Consequently, because the pre-Booker sentencing system was both unconstitutional and unsound, evidence of "decreased compliance" with the guidelines perhaps should be a cause for celebration and not concern.
With this important backdrop, three findings from the report especially caught my attention:
- "Despite the increase in the rate of imposition below-range sentences in the post-Booker era, the average length of sentences imposed actually has increased in the caseload taken as a whole." USSC Report at p. 69.
- "In general, sentence reductions in the post-Booker era tend to be distributed more heavily among the smaller reductions than among the large ones." USSC Report at p. 63.
- It appears that, generally speaking, post-Booker departures and variances are going to offenders who perhaps most merit a small break from the guidelines (e.g., first offenders and those with overstated criminal histories; offenders with small roles in offenses; offenders with significant family ties and responsibilities).
Add all this up, and I come to the basic conclusion that federal judges are, generally speaking, using their new post-Booker discretion quite cautiously and wisely. As the old proverb goes, "If it ain't broke, don't fix it." I see little evidence in the USSC's report of federal sentencing being broken (or at least being broken in new ways).
Of course, federal sentencing has arguably become a bit more complex and harsh after Booker, even as it has become slightly less rigid. I would favor reforms that would ease the complexity and harshness of the current system (though these reforms could and should come from the USSC after further study). Disconcertingly, the "minimum guideline system" that the Justice Department fancies would increase the rigidity and the harshness of federal sentencing — while also, of course, raising new constitutional and practical questions that would also increase complexity.
Some recent Booker fix posts:
- Booker March madness set to begin with a hearing double-header
- Buzz about the House hearing on Booker
- Latest FSR Issue on post-Booker world
- Professor Bowman's latest fix on the post-Booker world
- Dead Booker walking?: disparity in theory and practice
- Dead Booker walking?: a "drift toward lesser sentences"
- Bad Booker fix arising?
March 14, 2006 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (2) | TrackBack
Sentencing Commission releases Booker report!
Now appearing on the US Sentencing Commission's Booker webpage is the Commission's long-awaited — at least by me — Booker report. Available at this link, the report is simply entitled "Report on the Impact of United States v. Booker on Federal Sentencing," and the full pdf runs 277 pages(!). I will, of course, comment at length as I consume what the USSC has to say about the post-Booker world.
UPDATE: There is so much of interest in the USSC Booker report; I am a bit overwhelmed. The Commission is to be complimented for producing such a massive and detailed report in anticipation for this week's hearings on federal sentencing (background here and here). From a quick scan, I do not see any concrete recommendations from the USSC in this Booker report, though perhaps that will come in a subsequent documents or in USSC Chair Ricardo Hinojosa's testimony at the House Judiciary Committee hearing (details here). Also based on a quick scan, here is a notable sound-bite: "The severity of sentences imposed has not changed substantially across time. The average sentence length after Booker has increased." USSC Report at p. vii.
I now have to dash off to this event, but I hope to be able to comment on the report more this afternoon.
ANOTHER UPDATE: I sequestered myself in a local coffee shop for a couple hours this afternoon to consume the USSC Booker report. I have three basic reactions, which I hope to elaborate upon in subsequent posts:
- This is a fantastic report that is a must-read (or at least must-skim) for all policy-makers and practitioners interested in federal sentencing developments.
- The report has a lot of intricate analysis, but relatively few broad assessments, of the post-Booker world.
- Though the Justice Department might find bits of data from the report to make a case for a Booker fix, I see the report as reinforcing my own view that the post-Booker world is not badly broken.
Tuesday, March 07, 2006
A gendered look at the post-Booker world
Professor Myrna Raeder has just posted on SSRN, available at this link, an interesting article entitled "Gender-Related Issues in a Post-Booker Federal Guidelines World." Here is a portion of the abstract:
This article updates, expands and revises the author's previous works concerning gender in sentencing in light of Booker. It describes the dramatic increase of the female incarcerated population in the federal system due primarily to drug offenses. It discusses the Guidelines concerted effort to produce identical sentences for men and women who commit similar crimes, which imposed draconian costs on families as well as on women who do not resemble the violent male drug dealers who inspired the severe federal drug penalties. Gender related differences concerning the impact of sentencing policy on children and on loss of parental rights by mothers are discussed. Booker's reasonableness analysis is analyzed as providing the flexibility to approve non-guidelines sentences based on gender-related factors. The practice of requiring judges to decide the appropriateness of discouraged downward departures before issuing non-guidelines sentences is critiqued as hindering more holistic sentencing of defendants.
The author also criticizes the guidelines discouragement of family ties departures, and argues that a completely gender-neutral sentencing scheme is bad policy because it has the potential of increasing intergenerational crime by ignoring the gendered realities of caregiving in our current society. A Guidelines amendment is proposed making children a legitimate departure factor in assessing the sentence of nonviolent sole and primary caretakers in light of constitutional and policy considerations viewing the family as a fundamental liberty interest....
Tuesday, February 28, 2006
Latest FSR Issue on post-Booker world
I am pleased to announce that another issue of the Federal Sentencing Reporter has gone to press. This latest issue continues the Booker beat — recently covered in issues examining "The Booker Aftershock" and "Is a Booker Fix Needed?" — with a focus on "Defense Perspectives on the Post- Booker World." (Recall that, as detailed here, another recent FSR issue zeroes in on the state Blakely scene.)
Below I have listed this latest issue's contents and also made my Editor's Observations, entitled "Perspectives on the Booker's Potential," available for download. General information about ordering FSR can be found here and the journal can accessed electronically here.
- Douglas A. Berman, Perspectives on Booker's Potential (Download 182_ed_obs.pdf)
ARTICLES AND RELATED MATERIALS
- Alan DuBois & Anne E. Blanchard, Sentencing Due Process: How Courts Can Use Their Discretion to Make Sentencings More Accurate and Trustworthy
- Timothy Cone, Booker Waivers in Plea Agreements: Are They Permissible?
- Jon M. Sands & Robert J. McWhirter, Federal Sentencing Adventures in Jurisdictional Wonderland: Blakely, Booker, and Special Federal Jurisdiction Issues
- Letter from Federal Defenders to U.S. Sentencing Commission about Federal Sentencing Since United States v. Booker
- Panel Discussion from The Constitution Project's Sentencing Initiative
- Ryan S. King & Marc Mauer, The Sentencing Project, Sentencing with Discretion: Crack Cocaine Sentencing After Booker
- New Jersey Commission to Review Criminal Sentencing, Report on New Jersey's Drug Free Zone Crimes & Proposal for Reform
Friday, February 24, 2006
Amicus brief on Booker sentencing and review
As detailed in this post, earlier this month there was an en banc argument in two First Circuit cases concerning the standards for post-Booker sentencing and appellate review, and I am hoping that the First Circuit recognizes the troubling aspects of a "presumption of reasonableness" for within-guideline sentences. As documented by the amazing amicus brief filed by the NACDL in the First Circuit (which is available for download below), others are likewise calling on the First Circuit to take a different path than other circuits have.
UPDATE: Thanks to a helpful reader, I can now provide copies of both the NACDL's amicus brief and an amicus brief filed by the federal public defenders in the First Circuit. (I will happily also post the government's brief if someone can send me an electronic copy.)
MORE: Thansk to another hepful reader, I can now provide a copy of the Government's brief in the First Circuit: Download government_1st_cir_en_banc_brief.rtf
Related reasonableness posts:
- Reasonableness review round-up . . . calling Justice Scalia
- Why a "presumption of reasonableness" is troubling
- The ugly look of reasonableness review
- Reasonable complaints about reasonableness review
MORE: At Appellate Law & Practice, S. COTUS adds this great line to all the serious debate over reasonableness review:
"Presumption of Reasonableness" is beginning to sound like the name of a "Law and Order" which, apparently, is a TV show watched by non-lawyers in which prosecutors are saints and fight crime or something.
Thursday, February 23, 2006
The latest must-read on Blakely/Booker
Professor Ron Wright, throughout his copious work on federal and state sentencing systems, always adds an insightful and distinctive perspective to our understanding of sentencing reform. (Bias acknowledgment: Ron is a co-author on my casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines.) Ron's latest paper (available here), entitled "The Power of Bureaucracy in the Response to Blakely and Booker," is no exception. Here is part of the abstract:
How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences? The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy. Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible. The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing systems to the upset from Blakely and Booker.
February 23, 2006 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, February 14, 2006
My love letter to Booker?
Perhaps as a fitting follow-up to my Valentine week sentencing wish list, today I am able to post what might be viewed as my own personal love letter to Booker. I now have a complete first draft of an article entitled "Conceptualizing Booker," which is due to appear in the Arizona State Law Journal following this great conference. The draft article, which can be downloaded below (and is still rough in many spots), tries to bring conceptual order of both parts of the Booker opinion. Here is a overview from the introduction:
As explained in Part I of this Article, Booker comes into sharper conceptual focus when located within broader stories about sentencing reform and constitutional jurisprudence. Indeed, reflecting on sentencing history and recent reforms reveals a simple idea that helps unlock the conceptual mystery presented by Booker. This idea is that sentencing is a distinct enterprise in the criminal justice system — and thus should permit a distinct constitutional structure — only if and when sentencing decision-makers are exercising reasoned judgment.
Building on this foundation, Part II of this Article will explain how the two parts of the Booker opinion can be conceptually harmonized around the idea that broad judicial power at sentencing can be justified if and only when judges are exercising reasoned judgment. In other words, Part II will explain that Booker's conceptual core — what we might call the tao of Booker — is best understood not in term of vindicating the role of juries and the meaning of the Sixth Amendment's jury trial right, but rather in terms of vindicating the role of judges and the meaning of sentencing as a distinct criminal justice enterprise defined and defensible in terms of the exercise of reasoned judgment.
Part III of this article will then briefly explore some implications of this conceptual vision of Booker. As explained in this Part, conceptualizing Booker as a decision vindicating the role of judges exercising reasoned judgment at sentencing has important implications for the Supreme Court's still developing Sixth Amendment jurisprudence and also for how lower courts should approach federal guideline sentencing in the wake of Booker.
Monday, February 13, 2006
Professor Bowman's latest fix on the post-Booker world
Now available via this link at SSRN is Professor Frank Bowman's latest opus, "The Year of Jubilee...or Maybe Not: Some Preliminary Observations about the Operation of the Federal Sentencing System After Booker." As the SSRN abstract explains, Frank's article explores "available data on the operation of the federal sentencing system during the eleven months" following Booker. Providing a much fuller elaboration of some points rehearsed in this Debate Club debate, Frank's article is chock full of important observations and trenchant insights about post-Booker developments.
There is much to highlight in this work, and I especially recommend Frank's concluding thoughts in the final part of the article. Here is a sample from that section:
[C]onsider four facts about 2005. First, in 2005, the majority of all federal judges were appointed by Republican presidents and the United States Department of Justice was in the hands of a Republican Administration. Second, in 2005, prosecutors initiated sentences below the guideline range twice as often as did judges. Third, in 2005, prosecutors as well as judges sought sentences below the guideline range more often than they had in 2004. Fourth, during 2005, in an advisory sentencing guidelines system operated by a predominantly Republican judiciary and a markedly conservative Republican Justice Department, almost forty percent of all sentences were outside the guideline range and the ratio of sentences below the applicable guideline range to those above it was roughly 22-to-1.
These facts about the post-Booker experience reinforce conclusions many observers have reached about federal sentencing throughout the Guidelines era. First, the behavior of the careful, cautious, public-safety-conscious judges and prosecutors who run the federal criminal justice system strongly suggests that they believe the severity of sentences called for by the guidelines is often (though by no means always) greater than necessary to achieve the ends of justice. Second, the high severity levels that characterize the federal system can only be maintained by unremitting efforts at central control of the federal criminal process....
The simplest lesson is that we have a federal sentencing system with a severity level that, at least for some common offenses, is pegged higher than the day to day judgments of the legal professionals who operate it will support. Because the severity level of the system is consistently at odds with the professional judgments of federal judges and prosecutors, only tight centralized controls can keep it propped up. Those tight central controls in turn breed resentment, evasion, and institutional conflict. If one is willing to grant that the judgment of frontline sentencing actors is entitled to considerable deference when making sentencing rules, one component of any post-Booker reform proposal should surely be a serious, bipartisan, inter-branch, and interdisciplinary re-examination of at least those sentencing levels and guidelines rules most productive of evasion by the front-line actors who know the system best....
[S]omeone needs to remind federal policymakers of an obvious truth — if laws are widely and persistently evaded by the very officials assigned to enforce them, at some point one should start questioning the wisdom of the laws rather than the fidelity of the enforcers. In the end, one very good way to promote guidelines compliance is to write guidelines that produce outcomes those who run the system are happy to accept.