Sentencing Law and Policy

A year-end perspective on various sentencing-related topics

paThough I have already provided this quickie sentencing year-in-review, I am pleased to see around the web more thorough year-end reviews on various sentencing-related topics:

• The Sentencing Project here has a review of 2007 developments in felon disenfranchisement reform.

• The Drug War Chronicle here has a review of the "Top Ten Drug War Stories of 2007"

• White Collar Crime Prof Blog here gives out "2007 White Collar Crime Awards"

• The Death Penalty Information Center (as previously discussed here) has made available here its 13th annual Year-End Report.

Thinking about the top sentencing stories for 2007

Over at TalkLeft, Jeralyn in this post rightly takes Time magazine to task for this extraordinarily lame  list of the top 10 crime stories of 2007.  Of course, this got me thinking about the top sentencing stories of 2007, and I am feeling a bit overwhelmed by all the possibilities.  By any measure, 2007 has been an amazing sentencing year, and I am not sure how to rank the significance of all these events:

• New USSC reduced crack guidelines
• USSC decision to to make its new guidelines retroactive
• Supreme Court's post-Booker decisions in Rita and then Gall and Kimbrough
• The "celebrity" sentencings of Conrad Black, Paris Hilton, Lewis Libby and Michael Vick
• Commutation of Lewis Libby's sentence by President Bush
• Hub-bub and eventually striking down of Genarlow Wilson's mandatory sentence
• Continued hub-bub over the former border agent's mandatory sentences
• California and other states' on-going struggles with its prison over-crowding problems
• Sex offender GPS tracking become more common and thus more costly
• Georgia state supreme court striking down state's sex offender residency restriction
• Heightened debate over child rape as a death-eligible offense
• Abolition of the death penalty in New Jersey
• De facto moratorium on executions as a result of Baze case before the Supreme Court

I have listed the death penalty stories last because they likely impact the fewest defendants, even though they tend to get the most media attention.  Readers are, of course, encouraged to note in the comments any other big stories I missed in this quick list.

Recapping a remarkable sentencing week

Though I still think the weeks surrounding the Supreme Court's 2004 Blakely decision may have been the most remarkable for sentencing developments in modern times, this past week certainly was remarkable for so many reasons.  Here is a abridged review of what make this past week so noteworthy:

SUPREME COURT BOOKER RULINGS AND COMMENTARY

• SCOTUS rules for the defendants in Gall and Kimbrough!!
• A quick take on winners and losers in Gall and Kimbrough
• A quick Justice-by-Justice review of Gall and Kimbrough
• FSG are truly advisory (even in crack cases), but what about....
• Judicial reactions, formal and informal, to Gall and Kimbrough
• The weighty guidelines question after Gall
• One (of many) tough questions after Gall and Kimbrough
• Is Kimbrough as big as Brown v. Board of Ed?

SENTENCING COMMISSION CRACK RETROACTIVITY AND COMMENTARY

• A preview of USSC crack retroactivity vote
• USSC unanimously votes to make new crack guidelines retroactive...
• Official USSC press release on crack retroactivity
• USSC's "Reader-Friendly" version of retroactivity amendment
• Some legal particulars around crack retroactivity implementation
• Latest crack retroactivity FAQ from FAMM
• "Give them McDeath, not McLiberty"

NEW JERSEY DEATH PENALTY ABOLITION DECISION

• New Jersey on path to kill its moribund death penalty
• NJ legislature passes bill to abolish state's death penalty
• Media wonders "what if we can no longer obsess about the death penalty"

CLEMENCY DECISIONS AND COMMENTARY

• A new batch of Bush pardons and a crack commutation
• Another bipartisan call for President Bush to commute border agent sentences
• Republican Kentucky Gov. grants many pardons and commutations

NOTABLE INDIVIDUAL SENTENCING DECISIONS

• Michael Vick gets 23 months in prison
• Conrad Black gets 78 months (after a favorable guideline ruling)
• Scooter Libby drops appeal ... is a holiday pardon on the way?
• SCOTUS also rules for the defendant in Watson
• Sixth Circuit affirms 1,772-month over Eighth Amendment challenge

Set your DVRs for "The Trials of Darryl Hunt"

A favorite reader reminded me than tonight at 8pm is the HBO premiere of the "The Trials of Darryl Hunt," an award winning documentary about a wrongful conviction in North Carolina.  Here is a snippet from HBO's synopsis of the movie:

In 1984, Deborah Sykes, a young white newspaper reporter, was assaulted, raped, sodomized and stabbed to death just blocks from where she worked in Winston-Salem, North Carolina.  Though no physical evidence implicated him, Darryl Hunt, a 19-year-old black man, was ultimately convicted of the crime and sentenced to life in prison.

Ten years later, DNA testing proved that Hunt did not rape Sykes, and cast serious doubts on his involvement in her murder, but he spent another decade behind bars for a crime he did not commit. The eye-opening HBO documentary THE TRIALS OF DARRYL HUNT tells his riveting story — and the story of those who fought to clear his name.

More than a decade in the making, Ricki Stern and Annie Sundberg's THE TRIALS OF DARRYL HUNT examines a community and criminal justice system subject to racial bias and tainted by fear. Hunt was charged with Deborah Sykes' murder largely on the strength of an eyewitness identification by a former Ku Klux Klan member, and convicted by a jury of 11 whites and one black.  It wasn't until 2004, through the help of an investigative series by Winston-Salem journalist Phoebe Zerwick, that he was finally cleared.

Over that 20-year span, his defense attorneys and public supporters never stopped fighting for him. In February 2007, the city of Winston-Salem compensated Hunt $1.65 million for his wrongful conviction and incarceration, and he also received $358,545 in compensation from the state of North Carolina.

Told from the point of view of the principal subjects — Mark Rabil, the unyielding defense attorney, and Hunt, the wrongfully convicted man — the film challenges the assumption that all Americans have access to unbiased justice.  Hunt's real-life courtroom drama reflects systemic issues of broad national concern: the liabilities of cross-racial eyewitness identification, prosecutorial misconduct, inexperienced defense attorneys assigned to capital cases, racial bias in death penalty cases, and errors in police procedure....

As Hunt's story unfolds, it becomes a textbook example of how the presumption of innocence can be subverted when a city's need to solve a gruesome crime, fed by sensational media coverage, leads to a rush to judgment that validates a flimsy case. In addition to clearing their own client, the defense team is ultimately instrumental in identifying the real killer, who is now behind bars.

Busy non-capital sentencing times

January has already been quite a sentencing month.  Though death penalty issues are capturing a lot of attention (details here and here and here), the sentencing news has been dynamic on many fronts.  Because I am always eager to ensure capital stories do not eclipse other developments, here is a recap of some of this month's non-capital highlights:

SCOTUS DEVELOPMENTS AND COMMENTARY

• My effort to help with the SCOTUS docket problem
• The wait for Cunningham continues
• Speculating about Cunningham's composer
• CJ Roberts and sentencing law: a series
• CJ Roberts and sentencing law: the virtues (and vices?) of consensus

BOOKER DEVELOPMENTS AND COMMENTARY

• Who will be supporting the government in Claiborne and Rita?
• NLJ coverage of Patrick Lett appeal
• Report on USSC public hearing
• Judge Gertner keeps contributing to a post-Booker common law
• Sentencing federalism: Judge Weinstein on state-federal disparity

STATE SENTENCING DEVELOPMENTS AND COMMENTARY

• A push for a sentencing commission in California
• Strong commentary on California reforms and the incarceration bias
• When tough-on-crime bills come due
• Calls for a sentencing commission in Colorado

SEX OFFENDER DEVELOPMENTS AND COMMENTARY

• First(?) test of the new federal crime for failing to register as a sex offender
• Another (ineffective?) sex offender restriction
• NPR story about elderly sex offender prisoners
• Potent commentary on the Genarlow Wilson case

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Seeking information on state restrictions on clemency
• An early sentencing take on the Libby trial
• Is going to state prison good for your health?
• Interesting federal focal point for pardon/clemency debate
• Recommended reading

Holiday season highlights

With nearly everyone now back to the grind at the close of the holiday season, I cannot help but review some of the notable sentencing highlights over the last two weeks.  A complete review, is available through these weekly archives, but these posts were among my favorite and/or generated the most comments:

REVIEW AND REFLECTION POSTS

• Top 10 sentencing stories from 2006
• A personal sentencing year in review
• Branch-by-branch sentencing stories to watch in 2007

BOOKER REASONABLENESS DEVELOPMENTS AND COMMENTARY

• My friendly efforts in Claiborne and Rita
• All the amazing top-side briefs in Claiborne and Rita
• The stunning data on circuit reasonableness decisions
• Third Circuit karate chops the parsimony provision [update: and so does the Fourth Circuit]
• An eventful holiday week in the circuits

LETHAL INJECTION DEVELOPMENTS AND COMMENTARY

• Isn't it finally time for Congress to do something about lethal injection problems?
• Who will demonstrate lethal injection leadership?
• Calling out the Sixth Circuit for making a capital mess
• Is it time to seriously consider alternatives to lethal injection?
• Commentaries about lethal injection mess
• Seeking balanced scholarly wisdom on lethal injection mess

GEORGIA WILSON CASE DEVELOPMENTS AND COMMENTARY

• A Georgia case calling for executive clemency?
• Provocative questions about Georgia sentencing injustice
• Should the prosecutor request clemency for Genarlow Wilson?
• NYT adds to chorus calling for Genarlow Wilson to be freed

OTHER DEVELOPMENTS AND COMMENTARY

• The right's prison conversion
• Shouldn't we be much, much tougher with drunk drivers?
• Strong editorial against residency restrictions
• Examining crack sentencing in the new Congress
• Schwarzenegger's plan to reform California's prison problems

Top 10 sentencing stories from 2006

Generally speaking, 2006 was a much calmer year for sentencing developments than 2004 (discussed here) and 2005 (reviewed here and here).  Nevertheless, the year brought plenty of eventful sentencing stories, and below I provide my take on the top 10. 

10. The paucity of "tough-on-crime" politicking.  Reports of rising crime rates and a Republican party with few good election themes had me expecting "tough-on-crime" political rhetoric throughout the election season.  But this political dog did not bark, perhaps because Democrats have been consistently "tough" or perhaps because Republicans have found a new prison religion.

9. Continued rise in US incarceration.  Though the politics of crime may no longer be out-of-whack, the impact of 20 years of tough-on-crime attitudes continued to be seen in record incarceration rates and overcrowded prisons in state after state.  In California, the situation has gotten so bad, some sensible reform might even emerge (details here and here).

8. High-profile white-collar sentencings.  Defendants Jack Abramoff, Bernie Ebbers, Andrew Fastow, Jamie Olis, George Ryan and Jeff Skilling all made sentencing headlines this year.  Interestingly, Andrew Fastow and Jamie Olis got the same sentence, but the others' sentences were all over the map (and Ken Lay missed the sentencing fun by dying).  White Collar Crime Prof Blog has other related year-end highlights here.

7. Continued decline of death.  As perhaps spotlighted by Moussaoui escaping the death penalty, there was more mounting evidence that the death penalty is continuing to die a slow death.  In 2006, there was another reduction in the number of death sentences and in the number of executions. (This DPIC report covers this story from all the angles.)

6.  More discussion of executive clemency.  Though notably grants of clemency remained rare in 2006, clemency issues continued to garner much attention.  Ken Starr played a high-profile role in a California clemency request, Maryland's out-going governor keep using this historic power.  Also, chief executives in Ohio, South Dakota, and Virginia put off scheduled executions for various reasons. 

5.  Stability in Supreme Court Sixth Amendment doctrine.  The addition of two new Justices could have prompted another round of Apprendi mania.  But, after 2004 brought Blakely, and 2005 brought Booker, 2006 lacked a major Sixth Amendment ruling because the Justices avoided cert on various issues and disposed of cases like Recuenco in disruption-avoiding ways.  However, as #3 below spotlights, 2006 may have been the calm before the storm...

4.  Stability in the federal sentencing system.  Nearly everyone (except me) predicted that Congress would respond legislatively to Blakely and Booker.  But, despite some posturing about a Booker fix, the Booker remedy remained in place as circuits resolved an array of post-Booker sentencing questions (almost always against defendants).  However, as #3 below spotlights, 2006 may have been the calm before the storm...

3.  Brewing instability for 2007.  The Supreme Court is poised to issue a number of major sentencing rulings in the first half of 2007.  Cunningham could (and likely will?) greatly impact the application of Blakely in the states (details here), and Claiborne and Rita could (and likely will?) greatly impact the application of Booker in federal courts (details here).  In addition, at least a few elected officials in other branches seem eager to disrupt some sentencing status quos.

2.  More sex offender mania and some pushback.  The severity and creativeness of sentencing for sex offenders reached new heights in 2006.  This category archive and the new blog Sex Crimes document that nearly every jurisdiction in the country was dealing with legislation or litigation involving sex offenders.  And though getting tougher remained the chief talking point, concerns about the impact of broad residency restrictions or severe mandatory sentences started to garner more attention.

1.  The lethal injection scrummages.  Karl Keys here provides a great account of "The Year of the Needle,"  and DPIC has kept this page updated with all the latest lethal injection developments.  In practical terms, lethal injection problems have disrupted the application of the death penalty far more than innocence concerns or any other issue.  The Supreme Court jump started this issue in January through its work in Hill v. Crosby, and December brought  moratoria in the two states — California and Florida — with the largest death rows.  In addition, nearly a dozen other jurisdictions have had executions blocked or delayed because of lethal injection issues.

Whew!  Quite a year.  Thoughtful readers, did I forget anything?

A personal sentencing year in review

In a future post, I will review the major sentencing highlights of 2006.  Here I start my reflective blogging by reviewing my sentencing scholarship and related activities for the year (roughly in chronological order with links to posts with more information).

Major Articles

• Conceptualizing Booker
• Tweaking Booker: Advisory Guidelines in the Federal System
• Finding Bickel Gold in a Hill of Beans
• Making Sentencing Sensible (with Stephanos Bibas)

Major Commentaries

• Reasoning Through Reasonableness
• Perspectives on Booker's Potential
• Now What? The Post-Booker Challenge for Congress and the Sentencing Commission
• The Real (Sentencing) World: State Sentencing in the Post-Blakely Era (with Steve Chanenson)

Major Amicus Efforts

• Crack sentencing in many circuits
• Reasonableness review in the Ninth Circuit
• Reasonableness review of veteran's variance
• Claiborne and Rita: Reasonableness review in the Supreme Court

Journal Issues

• OSJCL Issue 3.2: The Mind of a Child
• OSJCL Issue 4.1: Blakely in the States

• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 18.3: Taking Stock a Year after Booker
• FSR Issue 18.4: Sentencing at the Supreme Court
• FSR Issue 18.5: Toward Real Reform: Model Federal Sentencing Guidelines 
• FSR Issue 19.1: Victims and Sentencing I

Of course, I have also done more posts than I can count on this blog and also started a new group blog, Law School Innovation.  And, speaking of blogs, I also wrote this article, "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs," as part of this year's Harvard Law School symposium, "Bloggership: How Blogs are Transforming Legal Scholarship Conference."

A December to remember

As if October and November weren't exciting enough (as detailed here and here and here), this month has had nearly a full year's worth of notable sentencing events.  Of course, this month is only half over and, among other coming events, tomorrow brings the top-side briefs in the Claiborne and Rita cases (background here).  Nevertheless, since some are already celebrating Festivus, I could not help doing a mid-month review of sentencing highlights:

LETHAL INJECTION DEVELOPMENTS AND COMMENTARY

• Major California ruling on lethal injection protocol
• Governor Jeb Bush orders moratorium after botched execution
• An ugly (and fitting?) end to the capital year
• Isn't it finally time for Congress to do something about lethal injection problems?
• Who will demonstrate lethal injection leadership?

OTHER DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Recapping the capital year
• All the death data
• Major capital ruling from en banc Fifth Circuit
• Crazy capital developments in two states
• Executions and clemency in Ohio

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• At least another month until Cunningham
• Slow-poke SCOTUS: a sign of division?
• SCOTUS takes up three new criminal cases
• Solving the SCOTUS docket mystery
• Additional SCOTUS docket dissection
• Recapping the SCOTUS docket discussion

BOOKER DEVELOPMENTS AND COMMENTARY

• What wrong with equitable Booker retroactivity in the Ninth Circuit?
• Laughing all the way to the (en) banc after Booker
• Seventh Circuit upholds another large upward variance
• Eighth Circuit follows the herd on crack sentencing
• Ninth Circuit decides to punt reasonableness en banc
• What the latest USSC data reveal
• Shouldn't express statutory text trump perceived policy?

ALTERNATIVE SENTENCING DEVELOPMENTS AND COMMENTARY

• The virtues of faith-based prisons
• Another shame(ful?) sentencing example
• Opposition to Iowa's residency restrictions
• Is the future parole with GPS and other techno-reentry devices?

A week+ to remember

As if October wasn't exciting enough (as detailed here and here), the first part of November has produced many memorable sentencing moments.  Here are just some of the highlights:

ELECTION-RELATED SENTENCING AND COMMENTARY

• How could and will this election impact federal sentencing policy?
• A sentencing view of election day
• Figuring out election results for sentencing fans
• The big other branch questions after the election
• FAMM's view of the new political lanscape

CLAIBORNE AND RITA DEVELOPMENTS AND COMMENTARY

• SCOTUS to take up Booker reasonableness!!
• SCOTUS Booker questions presented ... and more questions
• How many amici briefs will there be in Claiborne and Rita?
• How do Cunningham and Claiborne and Rita intersect?
• The facts and decisions in Claiborne and Rita
• The district court sentencing in Claiborne and cert briefing
• Lovely Rita, SCOTUS case...

OTHER SCOTUS SENTENCING DEVELOPMENTS AND COMMENTARY

• Oral argument in James ACCA case
• Oral argument in Burton retroactivity case
• Latest OSJCL issue with lots of sentencing coverage

SEX OFFENDER DEVELOPMENTS AND COMMENTARY

• California's new sex offender law enjoined
• More on Proposition 83 in California
• Is GPS tracking a better way?

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• Fanfan's guideline sentence affirmed by First Circuit
• A Booker pair from the Third Circuit
• Seventh Circuit reverses another below-guideline sentence
• Tenth Circuit affirms two above-guideline sentences
• Pondering the USSC's upcoming crack/powder hearing
• A prosecutorial perspective on Booker

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Could Ohio and Wisconsin chart a path to a better death penalty?
• California's defense of its lethal injection protocol
• A new world of death penalty politics?
• More on the modern politics of the death penalty
• The federal death penalty in America's paradise

Scary(?) late October sentencing highlights

October has been quite a sentencing month.  I recapped the first half of the month here, and now below I have taken advantage of today's extra hour to provide highlights from the second half:

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• My amicus effort to support our troops (includes reasonableness brief)
• What exactly is the Sixth Circuit rehearing in Vonner?
• On Vonner, the en banc Sixth Circuit reasonableness case
• "Today's [Booker] opinion from Judge Posner is so truly bizarre and harmful that it took my breath away."

OTHER FEDERAL SENTENCING DEVELOPMENTS AND COMMENTARY

• Members of Congress like judicial discretion ... when their friends are sentenced
• A great response to the recent up-tick in violent crime
• Crime, sentencing and politics
• Two decades of crack(ed) sentencing and More crack attention at two decades
• Why isn't there a prior good works guideline?

HIGH-PROFILE FEDERAL SENTENCING AND COMMENTARY

• High-profile terrorism lawyer to be sentenced today
• Lynne Stewart gets 28 months ... reasonable?
• Tastes great, more Skilling
• Skilling gets guideline sentence of 292 months

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Remarkable circuit judge speech on capital punishment at mass
• The insidious distraction of innocence (and death)
• Tracking the execution rate as lethal injection scrummages rage on
• NJ Supreme Court decides on Atkins procedures
• Busy times for state killing

SEX OFFENDER DEVELOPMENTS AND COMMENTARY

• The scattered law of sex offender residency restrictions
• California's sex offender residency restriction proposition
• In the SL&P mailbag: a book on sexual predator laws
• A new legal attack against local sex offender residency restrictions
• Sex offenders as our modern day witches

A mid-month review in quite a month

October is probably my favorite month of the year, with lots of great sports, the days still warm and long enough for golf, and the beauty of the change of seasons.  Also, for law geeks, we get the start of a new SCOTUS term and the run-up to an election.  This October has not disappointed so far, and below are just some of the highlights of all the sentencing action:

SUPREME COURT CUNNINGHAM DEVELOPMENTS AND COMMENTARY

• Cunningham looks to be another state case about federal sentencing
• Reflections on the Cunningham oral argument
• Cunningham predictions, anyone?
• What will Alito and Roberts do in Cunningham?
• OSJCL symposium on state sentencing after Blakely
• Proofs of Making Sentencing Sensible

OTHER SUPREME COURT DEVELOPMENTS AND COMMENTARY

• Is a Booker reasonableness cert grant on the horizon?
• Victims' rights and Wednesday's other SCOTUS case
• SCOTUS grants cert to supervise Texas capital work
• Still more Texas capital clean-up for SCOTUS
• Read all the Blakely retroactivity SCOTUS arguments
• SCOTUS opening day fever ... read it!

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Is the Sixth Circuit's Vonner a goner?
• Oral argument in Ninth Circuit en banc reasonableness cases
• Second Circuit finds above-guideline sentence reasonable
• Tracking reasonableness review outcomes ... final update?
• Are more than 99.9% of guideline sentences reasonable?

OTHER FEDERAL SENTENCING DEVELOPMENTS AND COMMENTARY

• A terrific district court opinion on acquitted conduct
• Representative Ney cuts a deal for 27 months imprisonment
• Another Enron cooperator gets shortened sentence
• Early reactions to topless guidelines bill

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Eleventh Circuit shuts down another lethal injection litigant
• Regulating executions in California 
• Uncovering lethal injection realities

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• What punishments really undermine human dignity?
• Shaming punishments and communitarianism
• Ninth Circuit upholds 159-year mandatory term of imprisonment
• California's state of (prison) emergency
• Important new report on felony disenfranchisement

Summer sentencing highlights

Labor Day serves as the unofficial end of summer, so I thought I might review some of the biggest summer sentencing highlights.  In the recap below, I have excluded the end-of-Term action from the Supreme Court in late June, though I start with some notable post-term analysis and developments:

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• A criminal start to OT '06 for SCOTUS
• Biggest SCOTUS death penalty developments
• Biggest SCOTUS non-capital sentencing developments
• When and how should SCOTUS take up reasonableness review?
• Great new FSR issue for SCOTUS followers
• New Justices and the evolution left on criminal justice matters

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Tracking reasonableness review outcomes ... final update?
• Taking stock of post-Booker circuit splits
• The central flaw in reasonableness review
• Crack reasonableness review should be as easy as 1, 2, 3
• Third Circuit specifies issues for Grier en banc
• Still more reasonableness fun from the Sixth Circuit
• Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
• Ninth Circuit clarifies en banc reasonableness issues
• YLJ Pocket Part review of appellate review after Booker

BOOKER DISTRICT DEVELOPMENTS AND COMMENTARY

• Latest USSC data: "traditional" departures making a comeback
• Another extraordinary magnum opus from Judge Young
• Judge Adelman in fine Booker form
• More buzz about record variance in Adelson
• Fascinating developments in the Olis case
• Extraordinary paper on post-Booker sentencing

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• USSC releases notice of proposed priorities
• News on the Booker fix front
• Will DOJ make public is new fast-track policy?
• Sincere questions about acquitted conduct sentencing
• Constitution Project urges post-Booker reforms

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Lethal injection litigation creates de facto moratorium in Ohio and...
• Reviewing the lethal injection scrummages
• Missouri considering use of gas chamber
• Is capital punishment for drunk driving morally required?
• A medical perspective on the lethal injection mess
• Should executions be more public?

OTHER REVIEWS

• Archive of recap posts
• Archive of recommended reading

Recapping (un)reasonable sentencing times

Since my last review of sentencing highlights, circuit courts struggling with Booker reasonableness review continue to be the big story.  But, as detailed below, August has been a hot month in other sentencing arenas as well.  Here are some abridged highlights:

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Ninth Circuit clarifies en banc reasonableness issues
• Amicus brief in Third Circuit case on burdens of proof
• Taking stock of post-Booker circuit splits
• The central flaw in reasonableness review
• When and how should SCOTUS take up reasonableness review?
• Booker downloads of the week
• Crack reasonableness review should be as easy as 1, 2, 3
• What a Booker month in the circuits

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• What's going on behind closed doors at the US Sentencing Commission?
• Nice Slate commentary on crack sentencing
• Sad proof of post-Booker judicial intimidation
• Extraordinary paper on post-Booker sentencing

BLAKELY DEVELOPMENTS AND COMMENTARY

• Petitioner's reply brief in Cunningham
• Another strong Blakely opinion from Alaska
• An update on Blakely in Minnesota

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Is capital punishment for drunk driving morally required?
• Missouri considering use of gas chamber
• Oklahoma tweaking its lethal injection protocol
• Executions making a comeback
• The inconsistent pace of executions

OTHER DEVELOPMENTS AND COMMENTARY

• Seeking surveys of sentencing attitudes
• Maryland governor taking clemency responsibility seriously
• President Bush issues more minor pardons
• Meth offender registries all the rage
• ABA's Criminal Justice sentencing symposium
• A criminal start to OT '06 for SCOTUS

Booker downloads of the week

Last week's sentencing highlights (and lowlights) included these Booker items not to be missed:

• Amy Baron-Evans' extraordinary memorandum on post-Booker sentencing here.

• The Second Circuit's troublesome work on crack sentencing here (and critiqued here).

• The Fifth Circuit's intriguing approach to reasonableness review in Tzep-Mejia here.

• The Sixth Circuit's thoughtful sparring over reasonableness review here and here.

And Booker fanatics might also want to check out some of my recent Booker commentaries:

• Who will be most sorry about Demaree?
• Crack reasonableness review should be as easy as 1, 2, 3
• Taking stock of post-Booker circuit splits
• When and how should SCOTUS take up reasonableness review?
• A criminal start to OT '06 for SCOTUS
• What a Booker month in the circuits

Hot sentencing start to the dog days

August is the month with the dog days of summer, but this review of recent sentencing highlights shows that it is not just the temperature that's hot:

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Major split Second Circuit ruling on reasonableness
• Third Circuit specifies issues for Grier en banc
• Eleventh Circuit deepens Rule 32(h) circuit split
• Tracking reasonableness review outcomes ... final update?

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• Another extraordinary magnum opus from Judge Young
• Dual prosecution, federalism and sentencing
• More buzz about record variance in Adelson
• USSC releases notice of proposed priorities
• News on the Booker fix front

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Lethal injection litigation creates de facto moratorium in Ohio and...
• Big day for Ohio death row defendants
• Some lethal injection headlines

OTHER DEVELOPMENTS AND COMMENTARY

• New study on victim impact testimony
• Great new FSR issue for SCOTUS followers
• New Harvard CR-CL issue on prison litigation
• Hoping for more buzz on Senate crack sentencing bill
• More on Supermax, human dignity, and public safety

Week in review

Though a short week because of the holiday, the start of July still had some sentencing highlights:

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• Biggest SCOTUS death penalty developments
• Biggest SCOTUS non-capital sentencing developments

BOOKER DEVELOPMENTS AND COMMENTARY

• Will there be any Booker fireworks this summer?
• YLJ Pocket Part review of appellate review after Booker
• Eleventh Circuit reverses below-guideline sentence
• Tracking reasonableness review outcomes

OTHER DEVELOPMENTS AND COMMENTARY

• Considering castration for certain sex offenders
• Reviewing the lethal injection scrummages
• Liberty versus security in the war on ... sex offenders
• Ninth Circuit says CVRA does not give victim right to PSR

Recapping a long weekend

As I recover from a great fireworks show last night, I found it useful to review blog coverage since the start of joyfully long holiday weekend:

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• Biggest SCOTUS death penalty developments
• Biggest SCOTUS non-capital sentencing developments
• A holiday retrospective on Blakely fireworks
• If you can't get enough SCOTUS blogging...

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• The sad realities of the modern death penalty
• A medical perspective on the lethal injection mess
• Should executions be more public?

BOOKER DEVELOPMENTS AND COMMENTARY

• Judge Adelman on variances from career offender guideline
• Fourth Circuit finds fast-track variance unreasonable
• And the Booker beat goes on the in circuits
• Tracking reasonableness review outcomes

SEX OFFENDER DEVELOPMENTS AND COMMENTARY

• Liberty versus security in the war on ... sex offenders
• Missouri Supreme Court addresses sex offender registry

Off to the coast...

My summer Booker speaking tour takes me to San Diego later today, so posting may be light through the weekend (unless SCOTUS makes some big sentencing news on Thursday). 

As I head out, let me remind everyone that I would now like to start receiving contributions to the "Blakely at two" blog forum I proposed in this post.  A terrific group of folks have already expressed interest in this forum, and I have now created a separate e-mail — sentencinglaw@gmail.com — to which folks should send proposed posts about the state and fate of Blakely two years later.

On the road again...

Proving yet again that I have my priorities straight, I am soon hitting on the road to visit my dad (and have quality time on a golf course).  Blogging may be light through Father's Day, though my inner law geek will probably force me on-line if we get another big SCOTUS day on Thursday.  For fellow law geeks, here is a review of some highlights from what has already been a hot sentencing month:

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• Supreme Court to take up Blakely retroactivity!
• Could they, would they, should they ... declare Blakely retroactive?
• A brief account of House and Hill
• A Hill of beans
• Insights on Hill from THE expert
• Some insider perspective on House
• A cert grant as the biggest(?) SCOTUS sentencing news
• The "prior conviction" sparring, Harris and Roe v. Wade

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Busy Booker times in the circuits
• A Cagey view of Booker
• Strong Booker work from the Sixth Circuit
• Tracking reasonableness review outcomes
• Booker in the Circuits index

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• Sensenbrenner Booker fix drafted
• New Booker data shows more within-guideline sentences
• More juicy data from the USSC
• Reflection on a (record?) variance
• Jamie Olis, loss calculations, and white-collar sentencing after Booker
• Encouraging a critical race examination of post-Booker developments

SENTENCING PROCEDURE DEVELOPMENTS AND COMMENTARY

• Former Altanta mayor sentence increased on acquitted conduct
• Major Third Circuit ruling on post-Booker burden of proof
• More on Grier and the post-Booker burden of proof
• Ninth Circuit adds nuance to post-Booker burdens of proof

DEATH PENALTY SENTENCING DEVELOPMENTS AND COMMENTARY

• ABA calls for death penalty moratorium in Alabama
• Atkins may still get the benefit of Atkins
• Scheduled Virginia execution delayed by Governor

DRUG SENTENCING DEVELOPMENTS AND COMMENTARY

• Crackin' good arguments, Gromit!
• Another crackin' argument report
• Reflecting 20 years after the crack panic
• Noticing different legislative reactions to meth and crack
• Significant meth report from The Sentencing Project

SEX OFFENDER SENTENCING DEVELOPMENTS AND COMMENTARY