Saturday, January 27, 2007
Will serious sentencing reform come to Colorado?
Though California's sentencing woes and need for reform are making lots of headlines, this news article from Colorado highlights another state trying to start on needed reforms:
The state legislature will look at reforming Colorado prison sentences this session, breaking a longtime taboo in state politics. "We will make a significant attempt at some kind of sentencing reform," Rep. Terrance Carroll D-Denver, chairman of the House Judiciary Committee, said Friday. He said his committee would be looking at a recent report from the Colorado Lawyers Committee that called for creation of a sentencing reform commission to propose changes.
Carroll said the state's new Democratic governor, Bill Ritter, is interested. Evan Dreyer, the governor's spokesman, said Ritter, a longtime prosecutor, "is interested in taking a closer look at many aspects of the criminal justice system," with emphasis on reducing recidivism....
Carroll spoke after a news conference about halting Colorado's soaring growth in prisoners. The gathering brought together a disparate group of supporters, including the free-market Independence Institute, Democratic legislators, the sheriff from conservative Colorado Springs and prison reformers.
The state expects to add more than 6,000 prisoners by 2011, requiring $800 million in prison construction. That figure is more than twice the amount Colorado expects to have for all capital construction other than roads during that period of time. A number of officials have concluded the state cannot afford it....
Carroll called state sentencing laws "byzantine" because they are so complex. Lawyers and judges often debate in court how indecipherable laws interact to mandate a particular sentence, said Maureen Cain of the Colorado Criminal Defense Bar. She cited a client who has been successfully managing probation for three years, supporting his children and passing his drug tests - but who is about to be sent to prison because he cannot afford his probation fees.
Monday, December 18, 2006
Two states turning to overdue reforms
Though death penalty developments get most of the headlines, non-capital sentencing has the broadest impact on criminal justice systems. Thus, it is heartening to see new that both Alabama and California are getting serious about long needed reforms:
- From Alabama, this AP article details that "Alabama has been chosen for a national project that would lead to more community corrections programs, more rooms in prisons and a drop in recidivism rates, state officials announced Friday." This local editorial provides more background on this important development for Alabama sentencing and corrections.
- From California, this AP article details that "California's corrections secretary said Friday that the state will create a commission to review sentencing guidelines for felons, a potential key step in Gov. Arnold Schwarzenegger's efforts to relieve prison crowding."
Monday, December 11, 2006
In support of indeterminate sentencing
In this recent post, I noted a Texas report touting the virtues of parole in a modern state sentencing system. On a related front, thanks to the always terrific Corrections Sentencing, I see that the Utah Sentencing Commission has issued this fascinating statement in support of the state's indeterminate sentencing system. Here is the statement's executive summary:
By avoiding precise and fixed sentencing and release determinations, Utah's primary sentencing interests are best protected. An offender's release from incarceration is contingent on the individual nature of the crime committed, mitigating and aggravating circumstances associated with the criminal offense, past criminal history, the offender's conduct in the prison system, and proven amenability to rehabilitation over time. Our indeterminate system preserves control over the offender and enables a careful evaluation of the offender prior to releasing him back into the community.
Perhaps Utah ought to be a model for Congress if it ever decides that a Booker fix is needed for the federal sentencing system.
California's desperate need for reform
The New York Times has this extended article detailing the sorry state of sentencing and corrections in California. The pictures accompanying the story are stark and telling, and the text of the article really only provides the most basic details of California's woes. Notably missing from the discussion is the possibility that Supreme Court in Cunningham might declare California's structured sentencing system unconstitutional (lots of background here).
The entire article spotlights the challenging politics of sentencing reform, even when a state's situation seems desperate. Also, the second part of the article make a nice case for sentencing commissions. Here is a long snippet from today's must-read:
By nearly every measure, the California prison system is the most troubled in the nation. Overcrowding, inmate violence, recidivism, parole absconders and the prison medical system are among its many festering problems....
"The November election is over, and that is critical in terms of the politics of prison reform," said the State Senate majority leader, Gloria Romero, Democrat of Los Angeles. "The governor is particularly looking at his legacy, and I do not believe he can have a positive one if he does not solve the prison crisis."
Overcrowding is so severe that 16,000 inmates are assigned cots in hallways and gyms; last month, the state began asking for volunteers to be moved to prisons out of state. The system's medical program is in federal receivership and much of the rest of the system is under court monitoring. Cellblocks are teeming with violence. Seven of 10 inmates released from prison return, one of the highest rates in the country....
Like so many things in California, the scope of the prison problem stems largely from its size. The system houses 173,000 inmates — second-place Texas has 152,500 — and has an $8 billion budget. Its population explosion is in large part an outgrowth of a general increase in the state's population, its unusual sentencing structure and parole system, a legislature historically enamored with increasing penalties, and ballot measures like the three-strikes initiative.
Further, most rehabilitation programs have been eliminated from the system in recent years, which some criminal justice experts believe has increased the rate of recidivism. Some experts also argue that a legislature bound by term limits has created an expertise vacuum on the complex and emotional issue of prison sentencing....
[A] consensus has been building over the last six months, with union officials, the governor, public policy experts and many members of the legislature agreeing that a sentencing commission is in order. Sentencing commissions, made up of a diverse group of experts including former judges and crime victim advocates, essentially treat prison beds as scarce resources that need to be properly allocated.
Some related posts on California's prison problems:
Monday, October 23, 2006
Should juves get a sentencing break?
This article from the Richmond Times Dispatch, entitled "Many youths get leniency from judges," reports on recent findings by the Virginia Criminal Sentencing Commission that juvenile offenders seem to be getting more breaks at sentencing. Here is a snippet from the article:
A decade after legislators got tough on juvenile offenders by allowing more of them to be tried as adults, records suggest those juveniles are shown more leniency than adults. That has some experts pleased and others concerned. Both sides agree more study is needed.
[A] recent survey of sentencing records by the Virginia Criminal Sentencing Commission indicates circuit court judges are being relatively lenient with young offenders.... In the five years ending June 30, 2005, circuit judges issued juveniles lighter sentences than called for by the guidelines 36 percent of the time, compared with just 11 percent for all criminals....
A notable finding was that judges were most likely to sentence juveniles below sentencing guidelines in cases involving rape and other serious sex crimes. Judges sentenced below the guidelines in 58 percent of those cases even though two-thirds of the victims were under 13. Judges also appeared to be lenient when sentencing for burglary and robbery, going below the guidelines 48 percent and 45 percent of the time, respectively.
[D]irector of the sentencing commission, Richard Kern, said ... noted that age is an important factor in predicting the future danger a young criminal poses — generally the younger the offender, the more trouble they will be later. Showing leniency because of an offender's youth runs counter to what criminologists might recommend, Kern said.
Friday, September 01, 2006
Terrific accounting of state-by-state sentencing structures
With thanks to Michael Heise and ELS Blog for this tip, I have discovered that this is an interesting sentencing part to the Bureau of Justice Statistics' massive account of information on state court systems in its recently-released report State Court Organization, 2004. Starting at page 239 of a 300+ page document is a part called "The Sentencing Context," which has five amazing tables describing, state-by-state, facets of the sentencing process.
Saturday, July 29, 2006
Super sentencing commission soiree
Anyone with an interest in sentencing, and especially the work of sentencing commissions, ought to make haste to Philadelphia for the 2006 Conference of the National Association of Sentencing Commissions (NASC). Starting next Sunday, the Conference is entitled "Keystone of Sentencing: Balancing Fairness and Costs," and the particulars are detailed in this schedule. The latest NASC newsletter, available here, has more information about the conference (and also discusses recent work of some state sentencing commissions).
Though Blakely and Booker talk will surely arise during the NASC conference, the structure and agenda of the event ensures that a broad range of other important sentencing reform issues take center stage. I am planning to attend the entire NASC conference, and I have the honor of moderating a Monday panel on Federalism & Sentencing. I am looking forward to every part of the terrific event, and I might even try to do a little live blogging if the tech gods are friendly.
Sunday, June 11, 2006
Training sentencing judges
This article from Alabama, entitled "Judges await training in sentencing," provides an interesting perspective on one of the challenges that accompany the adoption of a new sentencing system. Here is a snippet:
It's been two months since Gov. Bob Riley signed into law voluntary sentencing standards for 26 of the most common felonies in Alabama. Judges don't have to follow the standards but they must show that they considered them.
This is what the new law requires, but over the past two months, the Alabama Sentencing Commission has given only about a dozen judges training on how to use the new standards that give low-level criminals a chance to get treatment instead of hard time. The commission has a lot of judges, lawyers and clerks to educate and comparatively little time to do it. "It's a monumental task with a lot of people to reach," said Rosa Davis, attorney for the Alabama Sentencing Commission, a key player in getting the changes implemented.
Friday, June 02, 2006
State legislator speaks out against mandatories
In the Philadelphia Inquirer, State Representative Greg Vitali has this notable op-ed entitled, "Mandatory sentences, minimum justice." Here's a portion of the strong piece that should be read in full (especially now that legislation is in the works to create a rigid mandatory federal sentencing scheme):
When some people learn that I'm opposed to minimum mandatory sentencing laws, they accuse me of "voting with the drug dealers and against our children." That's just campaign rhetoric, promoted by those eager to appear "tough on crime." These sentencing laws, regrettably, impede our judicial system's ability to do justice....
The main problem with mandatory minimum sentences is that they take away the ability of judges to consider the individual circumstances of each case when imposing sentence.... Another problem with mandatory minimums is that they skew our system of justice by shifting power from judges to prosecutors.... Finally, mandatory minimum sentences have added huge costs to Pennsylvania's corrections budget.... A much better approach would be to eliminate mandatory minimum sentencing and rely on the sentencing guidelines already set up by the Pennsylvania Sentencing Commission.
As of now, legislators who oppose mandatory minimums are losing the sound bite war. That's why many politicians who oppose mandatory minimums nevertheless will not vote against them - they consider such a vote political suicide. The groups who oppose mandatory minimums must be more vocal in their opposition, particularly groups with a vested interest, such as the judges whose role is being impeded, the lawyers who see how mandatory minimums skew the system, and the groups working for justice in our communities. Only these groups can educate the public about the problems with mandatory minimums, and provide the political cover that legislators need to make changes. Those changes need to be made soon. Our system of justice depends on it.
Sunday, May 28, 2006
Delaware considering repeal of drug mandatories
This recent editorial and this recent commentary from Delaware suggests that the state might soon "repeal mandatory minimum sentence laws regarding drug offenses" through a pending bill. The commentary indicates that "34 members of the Delaware House of Representatives and the Senate have agreed to bipartisan sponsorship of House Bill 181." Additional background on the bill (and advocacy for it) can be found at this webpage maintained by Stand Up for what is Right and Just, a grassroots organization dedicated to reforming Delaware’s criminal justice system.
Friday, April 14, 2006
Should prior military service reduce a sentence?
This interesting federal sentencing story from Alabama, entitled "Soldier gets 5-year sentence," has me thinking again about whether guideline sentencing systems ought to provide (and regulate) sentencing reductions for military service. Here are highlights from the article:
Patrick Lett seemed to have everything going for him, including a 17-year Army career that saw him rise to the rank of sergeant and serve honorably in the Iraq war and Operation Desert Storm a decade earlier. But something went terribly awry in early 2004. Lett, 37, of the Monroe County town of Peterman, fell in with some cousins who law enforcement investigators contend sold tens of thousands of grams of crack cocaine in the Monroeville area.
Lett pleaded guilty in December to seven counts of distribution of crack. On Thursday, U.S. District Judge William Steele, who appeared moved by Lett's story, sentenced him to five years in prison -- the minimum allowed by law. Defense attorney Glenn Cortello said his client also faces expulsion from the military.
The prison term is 10 months shorter than the punishment recommended under advisory sentencing guidelines, but the judge rejected a request Cortello to cut the prison time. A judge could order a shorter sentence by ruling that the mandatory-minimum sentence would be unconstitutionally excessive.
I often think of honorable military service and other past good deeds by a defendant as the flip side of criminal history. Criminal history, after all, is just a past record of prior bad deeds, and every sentencing system (guideline or otherwise) provides for sentence enhancements (often huge enhancements) based on such a record of prior bad deeds.
Doesn't it make some logical sense for a sentencing system to similarly provide for sentence reductions based on a notable record of prior good deeds such as military service? Especially during a time of war, wouldn't a sentence reduction based on honorable military service serve as a tangible way to recognize and reward service to our country?
Thursday, April 06, 2006
Following Alabama sentencing reform
This morning's Montgomery Advertiser has this interesting editorial, entitled "Commission has much left to do," which highlights the long path to effective sentencing reform. Here's how it starts:
The passage of statewide sentencing guidelines was a landmark event that holds great potential for helping ease the chronic overcrowding of Alabama's prison. Alabamians owe a generous measure of appreciation to the Alabama Sentencing Commission.
Even with that notable objective accomplished, however, the work of the commission is by no means over. It will now shift its focus to improving community corrections programs and moving toward its eventual goal of truth in sentencing, in which the time sentenced is the time served, as in the federal judicial system.
Related posts on Alabama sentencing reform:
Friday, March 31, 2006
Alabama legislature approves voluntary guidelines
As detailed in this article, after a very long reform process, the "Alabama Legislature gave final approval Thursday to three bills supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons." Specifically, the "key bill in the package would provide judges with a voluntary list of recommended sentences for various crimes." I found this passage in the article especially interesting:
The sponsor of the legislation, Rep. Marcel Black, D-Tuscumbia, said the purpose of the bill setting voluntary sentencing guidelines was so that a person convicted of committing a crime in one part of the state will receive a similar punishment as a person convicted of the same crime in a different area. But Black said judges will still have the option to give a lenient sentence or a harsher sentence when needed. "Every theft case is not the same. Every murder case is not the same," Black said.
Perhaps we might encourage state representative Black to take a meeting with federal representative Sensenbrenner (who apparently does not quite see the virtues of judicial discretion).
Monday, March 13, 2006
California's sentencing and corrections woes
A thoughtful reader pointed me to this strong piece from Sunday's San Francisco Chronicle, entitled "Prison reform needs reform: Corrections system can't do task alone," which discusses the woes of California's sentencing and corrections system. Here's a snippet:
Scholars ... who have studied California's overcrowded, $8 billion corrections system have repeatedly concluded that many of the system's troubles stem from poorly thought out criminal justice policies.
Sentencing laws enacted more than 30 years ago, and repeatedly described as a failure, require nothing of inmates, who sit in cells or on yards instead of entering drug treatment or vocational education programs. Corrections administrators have little power to determine when an inmate is truly ready to leave prison, and that results in the daily release of dangerous people back into the neighborhoods they previously terrorized. Overburdened parole agents are required to monitor virtually every parolee, leaving the agents little time to concentrate on the parolees most likely to pose a threat to citizens. That has resulted in this shocking fact: More than 20,000 California parolees are unaccounted for on any given day....
And many scholars say lawmakers continue to make bad decisions based more on headlines and emotional pleas than on a growing body of data that suggests how states can run cost efficient and effective prisons and parole systems.... Rarely are costs — or studies showing effectiveness — considered. The results make working in the state's penal system difficult and contribute to parolees churning in and out of jam-packed prisons.
Saturday, March 11, 2006
Former state prosecutor finds religion
The Capital Times, a Wisconsin paper, has this interesting article about a former prosecutor-turned-pastor who is now speaking out about excessive incarceration and calling truth-in-sentencing "evil." Here's a snippets from the article:
It had been gnawing away at him for years, especially after the Wisconsin Legislature passed the "truth in sentencing" law in 2000. "I became concerned about the legal system's obsession with fairness, which is very different from justice," Jerry Hancock, a former attorney in the Dane County District Attorney's Office, noted during an interview at a west side coffee shop this week. "I mean, people can get a fair trial. But the results may be unjust."
Fairness, he adds, "is very important. But a system that ends up with more than half the inmates being African-American and Hispanic is not just. And I wanted to deal with those issues from a whole different perspective." So in 2001, Hancock, who had spent three decades in the criminal justice system, pointed his life in a new direction. With the encouragement of his wife Linda, he started taking classes at Chicago Theological Seminary so that he could become a minister and provide spiritual guidance for prisoners and their families, as well as for victims of violent crime.
Related posts on religion and criminal justice:
- Religion, sentencing and corrections
- Meth, mandatories and moral values
- Is there a "new right" on criminal sentencing issues?
- Miers, religion, and criminal justice issues
- Having faith in prisons
Wednesday, March 08, 2006
Ohio defenders seek reconsideration of Foster's retroactive application
Today brings an interesting development in the saga of Blakely's application to Ohio's sentencing law. Recall that last week, the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here). Now, the Foster defendants and a supporting amicus have filed for reconsideration in the Ohio Supreme Court claiming that the "retroactive application of this case's remedy to persons who committed their criminal offenses prior to the release of the Opinion, violates clearly established United States Supreme Court precedent regarding ex post facto and due process."
I have provided links to two briefs filed in support of this motion for reconsideration. Here is a portion of the argument summary from Amicus Curiae Cuyahoga County Public Defender:
Your amicus' argument against retroactive application to persons who committed their offenses prior to 9:00 a.m. on February 27, 2006, can be summarized as follows. At the time of the offense conduct, the criminal defendant enjoyed, as a standard range of punishment, a presumptive sentence of minimum and concurrent terms of imprisonment; a trial judge could only overcome that presumption by making statutorily prescribed findings. This Court correctly held that, because the trial judge and not a jury was entrusted with making these findings, the statutory scheme violated the Sixth Amendment right to trial by jury as interpreted by Blakely. In its opinion in the instant case at “Part V. Remedy,” ¶¶ 84-102, this Court has eliminated the presumptive sentence, thus relieving the trial judge of having to make any findings whatsoever before imposing a sentence at any point in the statutory range and before ordering terms of imprisonment to be served consecutively to one another.
Applied prospectively, this Court's employment of severance to save the statutory scheme from an unconstitutional interpretation, as a general matter, does not violate ex post facto and the due process considerations attendant thereto. However, when applied to those persons whose crimes were already committed, this Court's remedy unconstitutionally changes the rules to the defendant's detriment by stripping defendants of the protections of the presumptions discussed above. Just as the General Assembly could not amend the statutory scheme in this manner and legislate that the new scheme apply to those whose crimes have already been committed, this Court is precluded from doing the same.
UPDATE: The ACLU of Ohio has also filed a brief seeking reconsideration of the Foster remedy. The ACLU brief, which can be downloaded below, stresses separation of powers concerns. Here is a snippet:
The ACLU files this supporting brief as amicus to address [its] concern that ... Foster violates the separation of powers by usurping the legislative function specifically and exclusively allocated to the General Assembly.
March 8, 2006 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, March 02, 2006
South Carolina top judge calls for sentencing reform
As detailed in this interesting article, South Carolina's Chief Justice "called for a 'policy summit' on sentences in South Carolina, citing exploding prison populations nationwide." Here are selections from an interesting read:
"Sentencing in the United States is a national disgrace," Supreme Court Chief Justice Jean Toal said Wednesday in her annual speech to the S.C. General Assembly.... From 1970 through 2000, the nation's prison population increased six-fold, Toal said. "This is a huge drain on state and local resources."... "We don't know the answer now as to how the system is being run because it's been such a long time since we've taken a real hard look at it," Toal said afterward. "I want to know if there are better ways to sentence and incarcerate than what we are using now."...
State Sen. Jake Knotts, R-Lexington, a former police officer, said he thinks the state should resurrect the sentencing guidelines commission. He was a member of the group, which disbanded a few years ago. The commission proposed uniform sentence ranges based on the severity of the crime and the defendant's criminal history....
North Carolina adopted similar guidelines in the mid-1990s. They helped reduce prison populations and saved about $1 billion over a decade, said Tom Ross, former chairman of that state's sentencing commission. The goal of structured sentencing, he said, is to keep violent criminals behind bars longer while providing alternatives to prison, such as house arrest or substance abuse counseling, for non-violent offenders.
Monday, February 27, 2006
More on California sentencing
- The Christian Science Monitor has this article on the proposed initiatives in California to reform the state's tough three-strikes law. (Prior recent coverage here.)
- The Sacramento Bee, continuing its series on California's drug sentencing laws, has this article today headlined, "Drug law's failures spur get-tough call: Battle looms over effort to crack down."
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
Wednesday, February 15, 2006
Update on state sentencing action
Folks really in the know about sentencing realize that all the sturm und drang over federal sentencing is a sideshow to all the real sentencing action that takes place in the states. Consequently, I am pleased to be able to post the latest edition of the newsletter of the National Association of Sentencing Commissions (NASC), which provides an effective summary of some of the latest activities a number of state sentencing commissions. As the newsletter documents, there is so much interesting and important sentencing work is being done in the states (and not all of it is about Blakely, thank goodness).
In addition, this newsletter has information about the upcoming annual NASC conference, which looks fantastic. The theme for this year's conference, which takes place in Philadelphia in August 2006, is "Keystone of Sentencing: Balancing Fairness and Costs." Be there or be square.
Sunday, January 22, 2006
The state of sentencing in Oregon
Oregon Circuit Court Judge Michael Marcus, who has this fascinating site supporting his "Smart Sentencing" Project, was reported that Oregon has its newly revised "Criminal Benchbook" on the Oregon courts' public site here. Judge Marcus has these interesting comments about this interesting resource:
The benchbook is 1160 pages, pdf format, searchable, hyperlinked in the table of contents [and elsewhere], and also navigable by the usual Adobe Reader tools. Unique, and uniquely vetted by the Criminal Law Committee of the Oregon Judicial Conference [no other portion was deemed controversial], are the first 30 pages of the Sentencing chapter, which notes current sentencing issues and provides practical suggestions for smart sentencing analysis -- all beginning at page 727.
I have quickly scanned the sentencing chapter of the benchbook, and it makes for an interesting read.
Wednesday, January 18, 2006
Alabama sentencing reform moving forward
As detailed in articles here and here, the "Alabama House passed eight bills Tuesday in a package supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons." A basic list of the reforms in these bills is available here. The Alabama Sentencing Commission, which recommended these bills, has a lot more details about these reforms at this webpage and in this legislative pamphlet.
One bill provides for the adoption of voluntary sentencing guidelines. Here is how the Alabama Sentencing Commission describes the bill in its legislative pamphlet:
In compliance with the directives included in the Sentencing Reform Act of 2003, this bill proposes adoption of voluntary sentencing standards for 26 felony offenses. These sentencing recommendations are historically based voluntary, non-appealable sentence recommendations developed for personal, property and drug crimes, representing 87% of all felony convictions and sentences imposed in Alabama over a five year period. The recommended sentence ranges and dispositions for the covered offenses are in lieu of the wider ranges under existing statutory law and provide uniform sentencing recommendations for trial court judges in sentencing convicted felons. These standards, which are voluntary, address both the length of sentences and the disposition of the offender (probation, intermediate alternative or prison).
Notably, proposals for the adoption of voluntary guidelines have been making the rounds for a few year, but Alabama prison overcrowding crisis seems to have finally pushed the reform forward. A few months ago, a state Task Force on Prison Crowding released this report which suggested enactment of these guidelines was key to dealing with the prison overcrowding problem.
Monday, October 24, 2005
More on "Show Me" state sentencing
I noted in ths post interesting sentencing developments in Missouri, where new presentencing reports are designed to encourage more judges to follow voluntary sentencing recommendations. More information and insight on these developments can be found this morning in this Kansas City Star article, which focuses on the problems of geographic disparity and the overuse of scarce prison resources on non-violent offenders.
Sunday, October 23, 2005
Missouri's interesting sentencing developments
Thanks to this AP article, I see that Missouri is about to roll out a risk-oriented, information-driven, computer-aided program for providing state judges with sentencing recommendations. Here is a passage from this press release from the Missouri Sentencing Advisory Commission about this notable development:
Missouri will launch a new pre-sentence investigation format November 1 that will provide judges with information for making effective sentencing decisions.... These new reports contain details about offenders and their offenses with various background data including criminal histories, victim impact statements, and offenders' personal characteristics. To assess offenders' likelihood of re-offending, risk factors are identified and scored. About half the scored factors deal with prior criminal history, while the other factors score particular characteristics that statisticians find are related to the chance for success or failure on probation or parole, such as substance abuse, education level, and employment history.
As explained on this page at the Missouri Sentencing Advisory Commission's website, concerns about the over-use of incarceration for non-violent offenders and about sentencing disparity are among the driving forces for Missouri's sentencing reform efforts. These efforts, and the new recommended sentencing system, are discussed more fully in this lengthy report from the Commission. That report includes this telling footnote:
The commission decided to abandon the use of the phrase "sentencing guidelines" because the same phrase is used in the federal courts to describe a system that is entirely different from the sentencing system in Missouri courts. The commission labels its work as Sentencing Recommendations because that is what they are. They are not compulsory. The Missouri Sentencing Advisory Commission does not support a federal style guidelines system. In fact, the federal system has been rendered voluntary by the US Supreme Court decisions in Blakely (6/24/04) and Booker (1/12/05).
Thursday, August 04, 2005
Judge Pryor urging sentencing reforms in Alabama
As detailed in this newspaper article from The Mobile Register, Eleventh Circuit Judge William Pryor in a speech earlier this week to the Southern Legislative Conference, said that "sentencing practices in many states have grown unfair and bulged prison populations over the last two decades." Earlier this year Judge Pryor, who served as Alabama's Attorney General before his appointment(s) to the bench, also gave a very pro-reform speech as the Keynote speaker at the Columbia Law Review's terrific symposium "Sentencing: What's at Stake for the States?" (background here; Pryor's keynote address appears at Lessons of a Sentencing Reformer from the Deep South, 105 Colum. L. Rev. 943 (May 2005).)
Here are some interesting passages from the Register article:
"If sentencing reform has been urgently needed anywhere, it's in Alabama," [Pryor] said. "Crisis is the only word that could fairly be used to describe the condition in my state."... Pryor ticked off statistics familiar to those who have studied the state's corrections system. Between 1930 and 1980, he said, Alabama's prison population held fairly steady at about 5,000 inmates. That number doubled by 1990 and increased to 23,000 by 2003.
In an interview after his speech, Pryor said other states have enjoyed great success at reducing overcrowded prisons by reforming their sentencing structures. Now that he is a judge, he said it is not for him to say when or how the state should proceed. But he told the conference delegates during his address that while different "stakeholders" distrusted each other, "I could not find a defender of the status quo."
Friday, June 17, 2005
Washington Supreme Court declares Blakely not retroactive
As detailed in this article, on Thursday the Washington Supreme Court concluded in State v. Evans, No. 74851-9 (Wash. June 16, 2005) that "neither Apprendi nor Blakely applies retroactively on collateral review to convictions that were final when Blakely was announced." The Court's unanimous ruling can be accessed at this link, and a brief concurrence by Justice Sanders can be accessed at this link.
The decision in Evans covers now familiar retroactivity ground, relying heavily on Schriro and otherwise rejecting arguments, including a claim based on state law, which might provide a basis for giving some retroactive application to Blakely. And Justice Sanders' one paragraph concurrence makes this observation about the current state of retroactive affairs:
As a matter of logic and principle, I find it difficult to accept one's constitutional right to a jury trial on sentencing factors may be abridged, without remedy, when the issue is first raised based on new case law in the context of a personal restraint petition. But a slim majority (5-4) of the United States Supreme Court in Schriro v. Summerlin, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), seems to say exactly that. What can I do but concur in the decision of our majority?
Friday, June 03, 2005
Notable 2d Circuit Apprendi ruling on habeas
Thanks to Appellate Law & Practice's post here, I see the Second Circuit in a major habeas ruling involving New York sentencing statutes has put a fascinating and important gloss on Apprendi (and, consequently, Blakely and Booker). Here is the court's opening paragraph in Brown v. Greiner, No. 03-2242 (2d CIr. June 3, 2005) (available here):
These three appeals, which we have consolidated, present the same question: Were the state court decisions affirming Petitioners' extended sentences under New York's persistent felony offender statute, N.Y. Penal Law § 70.10, "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"? 28 U.S.C. § 2254(d). The relevant Supreme Court ruling to which the petitions refer is Apprendi v. New Jersey, 530 U.S. 466 (2000), which ruled that in order for a sentence to comply with the dictates of the Sixth Amendment, a factual finding that drives a sentence above the otherwise applicable statutory maximum penalty (other than the fact of a prior conviction) must be found by the jury beyond a reasonable doubt, or be admitted by the defendant. We hold it was not unreasonable, in light of then-existing Supreme Court precedent, for the state courts to conclude that a sentencing judge's "opinion" as to what type of sentence would "best serve the public interest" is not a factual finding within the meaning of Apprendi. We accordingly reverse the judgments granting writs of habeas corpus in Brown and Rosen, and affirm the judgment denying the writ in Ramos.
Wednesday, May 11, 2005
Reasons for rooting for criminal justice federalism
As detailed in this AP story, the biggest criminal justice decision still percolating at the Supreme Court is in the medical marijuana case of Ashcroft v. Raich (lots of details here and here). Though the post-argument buzz was that SCOTUS seemed unlikely in Raich to declare significant limits on broad federal criminal power, I continue to hope that the so-called "federalism revolution" will come to criminal law. This is because it seems state legislators are much better than members of Congress at developing balanced sentencing policies and are not simply concerned with get-tough political rhetoric.
Today the evidence comes from Connecticut: as detailed in news accounts here and here, "state lawmakers, worried about the racial makeup in Connecticut's prisons, moved closer than ever Tuesday toward equalizing Connecticut's mandatory sentences for crack and powder cocaine convictions." Significantly, in the Connecticut legislative debate, a proposal was put forward to toughen powder cocaine sentences, but the bill which passed instead equalizes punishments at the current level for powder offenses. As explained in the AP story about the bill, "legislators who represent city districts where crack is more prevalent than powder cocaine said the change in law is necessary to give young people another chance at life and avoid prison time."
Contrast this state sentencing development with what is transpiring in the federal system, where there are bills moving forward in the House which seek to increase sentence lengths and create new mandatory minimums, even though the federal sentencing system already provides for extremely long sentences. Though I remain hopeful the Senate may provide some brake on the continued expansion of severe federal criminal laws (consider the statements noted here by Republican senators during AG Gonzales confirmation hearing), there seems to be little political will to seriously reconsider the "tough-on-crime" philosophy and the harsh sentencing provisions that have swelled our federal prison population over the last two decades. At least at the federal level, my hopes for a "new right" on criminal sentencing issues may be fading.
Of course, as detailed by this story from Alabama about a prison task force exploring ways for the state to deal with "Alabama's chronically overcrowded prison system," fiscal realities are perhaps what truly accounts for the different federal-state approaches to criminal justice issues. But that reality only reinforces the fact that states and localities are better able to understand and respond to the true social and economic trade-offs that are inherent in any criminal justice reforms. Or put more simply, because most crime is inherently a local concern, bringing the "federalism revolution" to criminal law would seem to make a lot of sense.
May 11, 2005 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
Thursday, April 21, 2005
Interesting work from the Wisconsin Supreme Court
The Wisconsin Supreme Court, through a pair of decisions concerning the application of the state's truth-in-sentencing laws, has documented today that there are plenty of contentious sentencing issues that have nothing to do with Blakely. As detailed in this AP report, state Supreme Court today "on 4-3 votes in separate decisions rejected petitions by two inmates to have their sentences modified to reflect the less harsh penalties from the second truth-in-sentencing law that took effect in 2003." (Recall that last fall, as detailed in posts here and here and here and here, the Milwaukee Journal Sentinel ran a terrific series of sentencing articles entitled "Locked In: The Price Of Truth In Sentencing.")
The specifics of the decisions in State v. Trujillo, No. 2003AP001463-CR (Wisc. Apr. 21, 2005) and State v. Tucker, No. 2003AP001276-CR (Wisc. Apr. 21, 2005) (both available for download here) will likely only be of great interest to Wisconsin lawyers. However, I found the following passage from Trujillo a suprisingly candid statement of a factor that likely impacts many high courts considering sentencing challenges:
We are also concerned about the possibility of opening the floodgates if we hold that the reduction in maximum sentences for TIS-II crimes constitutes a new factor. Between the time that TIS-I was enacted on December 31, 1999, and the date of TIS-II's implementation on February 1, 2003, more than 10,700 adults were admitted into Wisconsin's prison system with one or more TIS-I sentences. If we agree with Trujillo's new factor analysis, there is certainly the potential that most TIS-I offenders could seek a sentence modification on similar grounds.
Tuesday, April 12, 2005
Impressive website from NJ Commission
Kudos to the New Jersey Commission to Review Criminal Sentencing for its recently unveiled official website. In addition to being visually appealing and providing essential information about the Commission's work, this site serves a terrific resource on a range of sentencing topics through this very detailed page of resources and this document library. In addition, the website also includes this helpful page of links to other sentencing commission websites, many of which also merit praise for their broad and thoughtful coverage of various sentencing and corrections issues.
Wednesday, April 06, 2005
Interesting state sentencing items in the papers
Two newspaper pieces concerning state sentencing guidelines caught my eye this morning:
- From Indiana, this editorial expresses concerns about the Blakely fix (or perhaps it should be called the Smylie fix, basics here, commentary here and here) being considered by the Indiana legislature. Marcia Oddi at the Indiana Law Blog has some discussion of the piece and links to the legislation at this post.
- From Virginia, this article details that "Republican candidates for state attorney general sparred over criminal sentencing guidelines and qualifications during a debate on Tuesday." Interestingly, as the article details, the debate over guidelines was apparently triggered by "a question about a decline in the number of jury trials."
Friday, April 01, 2005
Returning to Ohio
Weather permitting, I'll be heading back to Ohio this weekend. But I see from the papers that Ohio sentencing developments have not slowed down in my absence. This article reviews the state of Blakely in Ohio (background here and here and here), and it suggests that Ohio's Attorney General is now advocating a legislative fix for possible Blakely problems in Ohio. And this article discusses an important new ruling from an Ohio appellate court concerning the application of a change in Ohio's parole procedures. When I get back to Ohio and my regular computer facilities, I hope to be able to return to active blogging about these and other developments in Ohio and beyond.
Tuesday, March 22, 2005
Interesting reports from the Wisconsin Sentencing Commission
In the fledgling days of this blog, before Blakely came along, I was trying to make a habit of periodically highlighting the interesting and important sentencing research and analysis being done by state commissions and agencies. (See, for example, early posts spotlighting materials from Alabama, from Alaska, and from Oklahoma.)
An e-mail I received today about two new reports from the Wisconsin Sentencing Commission suggested I should get back into this practice. The new Wisconsin reports are this summary of recent focus groups conducted with state judges concerning substance abuse treatment, and this semi-annual report examining burglary sentencing in Wisconsin. Of perhaps even broader interest to a broader audience, this webpage on the Commission's site collects materials and links to a broad array of research on various issues of concern to state criminal justice and sentencing systems.
Pondering the state Blakely pipeline
Picking up on my post here about all the Booker-inspired GVRs, Michael Ausbrook at INCourts notes here that he can only find one Blakely-inspired GVR (the Dilts case from Oregon). That interesting discovery has me thinking more broadly about the pace and pattern of sentencing litigation in the state courts and about when and how the Supreme Court will consider state Blakely issues on the merits .
First, it is interesting that, nearly nine months since Blakely, less than half of the states struggling with major Blakely issues have had their state supreme courts weigh in. My own notes show major Blakely rulings from state supreme courts only in Arizona (Brown), Indiana (Smylie), Minnesota (Shattuck), and Oregon (Dilts), and these rulings often punted as many issues as they resolved. Meanwhile, we are still awaiting serious high court Blakely input in California, Colorado, New Jersey, New Mexico, North Carolina, Ohio and Tennessee.
Second, it bears noting that there are some broad and common Blakely issues of concern to many states (e.g., Blakely's applicability to consecutive sentencing), and a number of narrow and unique Blakely issues of concern only to particular states (e.g., Blakely's applicability to Ohio's "worst form of the offense" enhancement). Also, there are a range of Blakely remedy/pipeline issues that implicate constitutional provisions like double jeopardy and due process. Whether, when and how the Supreme Court will take up these "second-generation" Blakely issues from the states should be an interesting story for many years to come.
Monday, March 07, 2005
Summarizing Shepard (and seeking state insights)
The Supreme Court's opaque work today in Shepard v. US (basics here) is hard to fully comprehend (consider this comment). Consequently, let me spotlight again the basic summary of the case here from the SCOTUSblog and summarize below my recent Shepard posts:
- The Shepard scramble discusses the Court's opinion and seeks to explain its significance concerning the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule.
- Just when you thought it was safe discusses Justice Thomas' concurrence in Shepard which calls for the elimination of the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule.
- O'Connor's Apprendi laments discusses Justice O'Connor's dissent in in Shepard which complains about the prospect of extending the Apprendi rule "into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed."
I am making such a big deal over Shepard and the possible demise of the Almendarez-Torres "prior conviction exception" in part because many states — including many without guideline structures — have sentencing laws (such as three-strikes laws) that rely on judges finding prior conviction facts. In the wake of Booker and its "advisory dodge," the Almendarez-Torres "prior conviction exception" may seem like a very minor issue for the federal system. But because every state, I believe, has some sort of mandatory recidivist or three-strikes law, the overall impact of the demise of the Almendarez-Torres could be, dare I say, perhaps even greater than Blakely.
Of course, if the Harris mandatory minimum exception to the Jones-Apprendi-Blakely rule remains standing (a big IF), some judicial fact-finding at sentencing will still be permissible even if (when?) the Almendarez-Torres "prior conviction exception" is eliminated. But my own sense of state sentence laws is that the demise of the Almendarez-Torres could be hugely important. But I may lack any real perspective, and thus I would be grateful if those folks most familiar with state sentencing systems might use the comments to explain the possible impact if the Almendarez-Torres "prior conviction exception" was formally eliminated.
UPDATE: Jonathan Soglin at Criminal Appeal here contributes a number of important insights about Shepard and also details its likely immediate impact on People v. McGee, no. S123474, a California Supreme Court case concerning the applications of California's Three Strikes Law.
March 7, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack
Tuesday, February 08, 2005
Booker wisdom for the states from the Vera Institute
The Vera Institute of Justice — which has been at the forefront of state sentencing reform through its State Sentencing and Corrections Program (SSC) — was at the forefront of covering the impact of Blakely in the states through its publications entitled "Aggravated Sentencing: Blakely v. Washington — Practical Implications for State Systems" (discussed and linked here) and "Aggravated Sentencing: Blakely v. Washington — Legal Considerations for State Systems" (discussed and linked here).
Achieving a state trifecta, the Vera Institute now has produced "Beyond Blakely: Implications of the Booker Decision for State Sentencing Systems." Authored by Jon Wool, this terrific state-focused account of Booker can be accessed here. These opening paragraphs provide a fitting overview:
The Supreme Court's recent decision in United States v. Booker has transformed sentencing for federal judges, prosecutors, and defense attorneys. But what guidance does it offer state policymakers and practitioners? The short answer: not much.
The Booker decision addresses only a few of the many questions raised by the Court's earlier ruling in Blakely v. Washington, which directly and dramatically affected the sentencing systems in a number of states. For those in the states who are struggling with these questions, Booker's 118 pages and six opinions offer little clarity. Nonetheless, the Booker decision sheds some light on the Blakely rule and sharpens its implications for certain states' structured sentencing systems.
February 8, 2005 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack
Monday, January 24, 2005
More Booker news, commentary and anecdotes
Yet again, this morning brings Booker pieces filled with commentary and anecdotes about the new look of federal sentencing. (In case you spent all weekend shoveling snow, links to weekend stories are here and here.)
- This article from North Carolina reports on a drug sentencing in which US District Court Judge Louise Flanagan followed the guidelines and also discusses what may and may not change in local federal sentencing after Booker.
- This article from Florida explores a particular case, and this article from Kentucky talks to a particular judge, for post-Booker perspective on federal sentencing.
- The Yale Daily News has this Booker commentary, and TalkLeft has an interesting post with commentary here on a great Booker-Feeney piece from law.com that I previously linked.
And, as I stressed in recent posts here and here, the state Blakely story continues to intrigue. Proof today comes in this story from Alaska discussing a "Blakely fix" in the state legislature which "will give judges more discretion in sentencing offenders of serious crimes."
UPDATE: Thanks to Howard at How Appealing, I see Stuart Taylor has this commentary on Booker at the National Journal. I find particularly amusing (and fitting) the piece's opening paragraph about our new bouncing baby federal sentencing system:
The birthing process was protracted, ugly, and unprincipled. But the baby doesn't look as bad as expected. And it may do OK unless it's strangled in its crib by Congress or abused by the judiciary.
Friday, January 21, 2005
Always remember to show your work
This afternoon, a memorandum, signed by Ricardo H. Hinojosa, Chair of the US Sentencing Commission, and Sim Lake, Chair of Criminal Law Committee of the Judicial Conference, was sent to all District Judges and other key court personnel concerning "Documentation Required to be Sent to the Sentencing Commission." The two-page memo, which can be downloaded here, "reiterates and emphasizes the importance of continuing to submit sentencing documents to the Sentencing Commission in accordance with the requirements of 28 USC § 994(w)." Here's the memo: Download ussc_documentation_request.pdf
The USSC memo sends a strong and critical message about documenting post-Booker sentencing decisions. It stresses that it is "particularly important that judges continue to comply with the requirements of 28 U.S.C. § 3553(c) by providing a complete statement of reasons for imposing the sentence" and notes that "documentation will be useful to the Judiciary, the Commission, and the Congress as we strive to continue to carry out the goals" of sentencing reform.
In a related vein, the blog Ex Post is doing a stunning job live-blogging the work at the on-going Columbia Law School conference on state sentencing. Already posted are wonderful accounts of Friday's two panels (here and here) and two lectures (here and here), and I also see two potent pre-conference about Booker (here and here). And, the Blakely Blog now also has extended posts covering Friday's two panels (here and here). All great reading.
Also, while we are in a documentation mode, let me spotlight just a few of my major Booker commentary posts of note in recent days:
- Burdens of proof and a new due process of sentencing
- Increased sentences post-Booker
- So, what is "reasonable"?
- Are the FSG still mandatory in child crime and sex offense cases?
- Anecdotes, data and the USSC's big challenge
- Do federal sentencing judges have discretion to Blakely-ize?
Sunday, January 16, 2005
In praise of advisory guidelines
A few months ago, I received for possible publication in the Federal Sentencing Reporter a terrific article about advisory guidelines by Kim Hunt, executive director of the DC Sentencing Commission, and Michael Connelly, executive director of the Wisconsin Sentencing Commission. At the time, we no longer had space in our final FSR Blakely issue, but I suggested to the authors that the piece could run in a subsequent issue.
With Booker now making advisory guidelines a reality in the federal system, this article on "Advisory Guidelines in the Post-Blakely Era" could not possibly be more timely. The authors have done a post-Booker update of the article, which is available for downloading below, and here is the opening paragraph:
With its rulings in Booker and Fanfan, the Supreme Court has redirected attention to the application of advisory sentencing guidelines. Advisory guidelines, operating in ten states, are sentencing guidelines that do not require a judge to impose a recommended sentence, but may require the judge to provide justification for imposing a different sentence. Although some commentators have questioned the efficacy of advisory systems in addressing sentencing disparity and predictability, this article will show that, properly constituted and overseen, these systems have produced results in many ways comparable to those of prescriptive sentencing systems, which themselves have not always achieved or sustained the ambitious goals they have set. The article concludes that, if done with an eye to the successes of states with advisory systems and the conditions necessary for those successes, the sentencing world of Booker and Fanfan can, in fact, accomplish the original objectives of the federal structured sentencing system.
In addition, the article ends with an important call for continued data-driven study and analysis of all sentencing systems:
It should be clear by this point that the authors view the paucity of reliable scientific evidence regarding the performance of all sentencing systems as a major obstacle to informed choice. It is incumbent on all sentencing commissions, legislatures, and independent researchers to address this problem through joint efforts at data sharing, analysis, and performance monitoring.
January 16, 2005 in Blakely Commentary and News, Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack
Monday, January 10, 2005
Brand new year, same old Blakely
Though the cases are now dated 2005, the lower court Blakely rulings of the new year look a lot like what we saw the last few months of 2004. Notably, in just the first week of 2005, there were nearly 50 cases discussing or noting Blakely coming on-line from an array of federal and state courts. (California, not surprisingly, continues to set the Blakely caselaw pace with over a dozen Blakely on-line rulings for the week alone).
Based on an all-too-quick-review, the most notable or consequential Blakely cases from last week — besides the Idaho Supreme Court ruling discussed here and developments in Alaska and Ohio and Washington detailed here and here — appear to be:
- State v. Timmons, 2005 Ariz. App. LEXIS 1 (Jan. 7, 2005) (vacating a sentencing on Blakely grounds while covering a number of important Blakely issues)
- State v. Noe, 2005 Tenn. Crim. App. LEXIS 7 (Jan. 7, 2005) (reducing a sentence from six years to five years, over a dissent, on Blakely grounds)
- US v. Swanson, 2005 WL 30507 (7th Cir. Jan. 07, 2005) (ordering resentencing on non-Blakely grounds, though also asserting that the "decisions in Blakely, Booker, and Fanfan, however do not affect the manner in which findings of restitution or forfeiture amounts must be made")
January 10, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack
Sunday, January 09, 2005
Important reading as we prepare for a new sentencing era
For me, my working time at this conference concluded with a great informal Blakely chat this morning with nearly two dozen colleagues. I learned a lot from the dialogue and got excited (yet again) for the possibility we may see Booker and Fanfan as early as this coming week.
Helpfully, just in time as we gear up for the opinion, Villanova Professor (and FSR editor) Steve Chanenson has finalized a terrific article fittingly entitled "The Next Era of Sentencing Reform." The full article can be downloaded below and here is a portion of the abstract:
This article charts a path for criminal sentencing in the wake of the Supreme Court's recent bombshell decision in Blakely v. Washington. Blakely has thrust sentencing systems across the country into turmoil. But Justice O'Connor was fundamentally wrong when, in her Blakely dissent, she exclaimed that "Over 20 years of sentencing reform are all but lost." All is most assuredly not lost. Blakely, properly viewed, is an opportunity - albeit a disruptive one - to re-think and improve our sentencing systems....
The Supreme Court will soon decide whether [Blakely] applies to the Federal Sentencing Guidelines. Regardless of what the Court chooses to do, Congress and the state legislatures are re-evaluating their sentencing systems and looking for Blakely-compliant options.
This article does not seek to shape the Court's opinion, or to predict its decision. Instead, it charts a path for legislatures, sentencing commissions, and sentencing scholars. In this article, I set the groundwork for understanding fundamental elements of sentencing, and show the pieces moved by Blakely. I then examine several popular systemic responses to Blakely. Ultimately, I find their various strengths outweighed by their substantial weaknesses.
In the final section, I propose a new approach that would not only survive Blakely's constitutional commands but can lead us into the next era of sentencing reform. This proposal is not merely a Blakely "fix," but a proposal that retains fidelity to the concerns and principles that led, over the past 30 years, to the modern sentencing reform revolution, and to structured sentencing systems. I propose a system of Indeterminate Structured Sentencing ("ISS"). ISS is an indeterminate sentencing system (that is, a system that includes parole release authority) in which a Super Commission guides both the sentencing and release functions. An ISS system honors judicial discretion but acknowledges the value of structural checks and balances. It permits high sentences in cases where a judge believes them appropriate while limiting the pressure to increase sentences across the board. ISS offers a balanced approach to sentencing that satisfies Blakely while simultaneously being sensible, just, and grounded in sentencing history, theory and practice.
And, after you have read this terrific article, if you still need more to feed your Blakely fix, I am happy to help. Actually, my research assistant deserves the credit for having completed another easy-to-print Word version (with embedded links and a TOC) of the text of this blog covering the last six weeks' posts in 2004. This document can be downloaded below, and prior installments of Word versions of the blog, organized by date, can be found here and here and here.
January 9, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack
Thursday, January 06, 2005
The power of the headline-making crime
I have often lauded Minnesota for its handling of Blakely issues (see here and here), and Professor Richard Frase's recent article (discussed here) highlights Minnesota's guideline system as a model for other jurisdictions. But the latest news from Minnesota highlights that even this state can have its sentencing policy influenced greatly by one headline-making crime.
As detailed in this article, as a result of the disappearance of Dru Sjodin, a college student kidnapped from a North Dakota mall, the state has been considering sex-offender legislation and Governor Tim Pawlenty has labeled sex offenders "his number public safety issue." In this well-done editorial, the Minnesota Star-Tribune highlights the problem with such an approach to criminal justice policy-making:
Not every tragedy can be prevented by legislation. Not every crime is reason to revamp the criminal code. These are lessons Minnesota leaders should take to heart as they think about how to handle Minnesota's sex offenders. Though the topic sits near the top of this session's agenda, it's not at all clear that any of the various "reforms" so far proposed would actually enhance public safety.
It's easy to see why state leaders are now so keen to crank up sentences for sex crimes, They are properly horrified by the 2003 kidnapping and murder of student Dru Sjodin and the subsequent arrest of a just-released repeat sex offender for the crime. When constituents get riled about a particular crime, lawmakers scramble to toughen penalties.
It's a natural impulse, and this session has given rise to at least two proposals for cracking down on sex offenders: Gov. Tim Pawlenty's plan to require "indeterminate" prison terms for all sex offenders and a bid by the state's Sentencing Guidelines Commission to stretch sentences for all sex crimes and reserve indefinite terms only for serious repeaters. Both plans call for a parole board to decide whether and when inmates can be released.
Reviving the parole board is indeed appealing -- so long as it's empowered to consider all inmates' fates. The move would likely be unnecessary if the Sentencing Guidelines Commission, which replaced the board in 1982, were left alone to fulfill its term-setting charge. But the legislative habit of tinkering with sentence lengths has hobbled the commission's ability to assure a fair system of punishment -- thereby raising doubts about whether all wrongdoers are ending up where they should. In fact, it seems likely that many Minnesotans would agree that too many prison beds are now filled by offenders who could more readily be helped and held to account in some other venue....
Lawmakers should be skeptical of all proposals to revamp Minnesota's approach to managing sex offenders. After all, it could very well be that the current system generally works very well -- so long as people follow the rules. The heartbreak of Sjodin's murder -- a crime for which Alfonso Rodriguez Jr. stands accused -- can't be attributed to a flaw in state law.... This isn't to say that state sex-crime laws couldn't benefit from fine-tuning. But it's simply incorrect to blame Sjodin's death on feeble state statutes. Fault is more properly placed on a moment of misjudgment, most certainly related to cost-saving pressures within state departments. It could be that the smartest thing lawmakers can do this year is to assure that the programs charged with handling sex offenders have everything they need to perform well.
Monday, January 03, 2005
Sentencing Commission work in NJ
As previously discussed in this post, New Jersey has recently created a Commission to Review Criminal Sentencing, and that Commission has now finished its "First Interim Report to the Governor and Legislature." I am pleased to be able to provide that report for downloading below.
This brief report provides more background than substance, but even its quick discussion of the state of sentencing in New Jersey and the work of the Commission to date provides a fascinating window into challenges that most states are facing in the arenas of sentencing and corrections in 2005. (And this terrific editorial today from NorthJersey.com makes clear that the press is going to be watching as the NJ Commission tries to meet these challenges.)
I recommend the entire report, though I particularly like the optimism in this closing paragraph:
In summary, we commend the Legislature and Executive Branch for their prescience by establishing an entity well-suited to guide both with regard to the profoundly changing landscape of sentencing law, practice and policy. Moreover, the Commission has progressed much since its inception to provide the Legislature and other "stakeholders" with the guidance necessary to promote a sentencing system that simultaneously protects public safety, fosters a greater degree of fairness, and provides meaningful and cost-effective responses to crime. The Commission is wholly committed to these efforts and plans to provide the blue print that will reshape and improve the State's sentencing scheme and penal system.
Notable (non-Blakely) state sentencing stories
This afternoon brings a diverse and interesting set of articles on various state sentencing developments (none of which — gasp! — have anything to do with Blakely):
- From Pennsylvania, this article discusses quite optimistically the opening of a new drug court in Lancaster County. (More resources on drug courts are at this link.)
- From Georgia, this article reports that the Governor Sonny Perdue has announced he "won't ask lawmakers this year to modify any of the harsh criminal punishment laws enacted in Georgia a decade ago that critics say are jamming state prisons and forcing judges to impose sentences that don't always fit the crime."
- From Illinois, this article discusses the success of the state's Sheridan Correctional Center, a so-called "drug prison" which focuses exclusively on drug treatment.
- From California, this editorial, building on a recent report from the Little Hoover Commission about women in prison discussed here, laments that the state is "failing miserably in dealing with incarcerated females."
Sunday, January 02, 2005
Sunday's stimulating sentencing stories
After reading about all the bowl games in the sports pages — how 'bout that Rose Bowl — there are a number of thought-provoking articles in today's newspapers:
- Emily Bazelon has this interesting essay entitled "Sentencing by the Numbers" in the New York Times Magazine, which thoughtfully discusses Virginia's fascinating and controversial risk-assessment sentencing that encourage "judges to sentence nonviolent offenders the way insurance agents write policies, based on a short list of factors with a proven relationship to future risk." (As detailed here, the Federal Sentencing Reporter recently devoted a full issue to risk assessment, and Grits for Breakfast here has some thoughtful comments on the Times article.)
- This article thoughtfully reviews the state of the death penalty in Louisiana, as well as nationwide death penalty developments in 2004. I was surprised and intrigued to learn that Louisiana has not executed anyone since 2001 and that "Orleans Parish counted its seventh year without a single death sentence, despite ample opportunity [because the local DA seeks the death penalty in every first-degree murder case] and a high murder rate." UPDATE: And, thanks to TalkLeft here, I see that the Washington Post has this editorial applauding the recent declines in the use of the death penalty.
And, thanks to How Appealing, from South Carolina we get this article about the juvenile death penalty in that state, as well as a set of companion stories (linked here), which details the potential impact of the Supreme Court's coming constitutional ruling in Roper on the juvenile death penalty (background here and here).
January 2, 2005 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack
Thursday, December 30, 2004
The WSJ on federal/state sentencing disparities
Following closely on the heels of its great coverage of the Blakely mess earlier this week, the Wall Street Journal has yet another terrific front-page sentencing article this morning. Today's topic is the important but often-overlooked realities of "the often-arbitrary decisions about which suspects should be prosecuted in state court and which in federal court."
The full title of article by Gary Fields (available here with subscription) tells the essential story, "Sentencing Shift: In Criminal Trials, Venue Is Crucial But Often Arbitrary -- Taking Over From the States, Tough Federal Courts See Surge of Small-Time Cases." Here are some highlights:
For much of America's history ... [a]lmost all crimes were handled by the states. Only a tiny handful involving a clear offense against the entire nation, such as treason or bribery of federal officials, were brought into federal court.
But in recent decades Congress has passed a raft of statutes that mandate long terms in federal prison for crimes ranging from drug dealing to carjacking.... Typically states already have their own laws against these offenses that set sentencing parameters for state judges to follow.
The decision about who should prosecute an offender is crucial, because federal sentences are usually much tougher. The average sentence for federal defendants convicted of drug charges in 2002 was three years and eight months longer than the average for state drug charges, according to the Bureau of Justice Statistics....
Between 1970 and 1998 the number of federal criminal statutes nearly doubled to 3,000, according to a 1998 American Bar Association study, the most recent comprehensive data available. Legal professionals say the number is much higher now -- probably around 4,000 -- although it's hard to tell how high because the statutes aren't listed in one place. The number of cases brought by federal prosecutors in 2001 was 82,614, up from 44,144 in 1982, according to the Bureau of Justice Statistics.
Robert Litt, a former deputy assistant attorney general for the Justice Department's criminal division, attributes the surge in new laws to "a tendency on the part of Congress to deal with any sort of serious problem by making a [federal] crime out of it." Members of Congress often point to the new laws as evidence they are producing concrete steps to fight crime.
December 30, 2004 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, December 29, 2004
Sentencing developments in New Jersey
Proving (as I suggested in my Sentencing Year in Review) that smaller media outlets are also doing a great job with sentencing stories, today at NorthJersey.com there is this fantastic article about sentencing developments in New Jersey.
Noting the recent reform of the Rockefeller drug laws in New York (basics here, some commentary here), the article is focused primarily on the prospects for drug sentencing reform in New Jersey. But, with a review of important sentencing data and many interesting quotes, the article covers a broad range of important sentencing reform topics (e.g., the piece notes there are "23,000 people in [NJ] state prisons — 35 percent of them locked up for drug-related convictions;" it quotes Ben Barlyn, executive director of the NJ sentencing commission saying "This country is in the midst of what is essentially a revolution with regard to sentencing law and practice [and] our mandatory minimum laws are going to be reviewed very carefully.").
Especially noteworthy is (1) the article's review of prosecutorial sentencing authority in the wake of a recent decision by state AG Peter Harvey to allow county prosecutors to offer plea deals without mandatory minimums, and (2) the article's report that the newly created New Jersey Sentencing Commission is soon expected to release its first report on state sentencing and to make recommendations to the NJ Legislature. These developments, combined with the interesting way Blakely is developing in New Jersey (details here and here), makes the Garden State one to watch especially closely in the year ahead.
Friday, December 17, 2004
Hawaii Apprendi habeas decision
Thanks to a friend in Hawaii, I can now provide for downloading the Hawaii opinion, previously noted here, of US District Judge Susan Oki Mollway in Kaua v. Frank, Civ. No. 03-00432 (D. Haw. Dec. 9, 2004), in which the defendant was granted a reduction of a state sentence to 20 years. Here's the opening paragraph:
This § 2254 petition presents the question of whether Kaua's extended sentence of incarceration violates Apprendi. This court concludes that Kaua's extended sentence clearly violates Apprendi, and that the extended sentence was based on an unreasonable application of Apprendi. This court therefore grants Kaua's § 2254 petition.
Wednesday, December 15, 2004
Intriguing report about sex offenders
A few months ago in this post I noted that the law and policy of sex offender sentencing is always interesting and often quite depressing. A recent report from the Washington Sentencing Guidelines Commission reveals that it can also be surprising.
The report, entitled simply Sex Offender Sentencing, is available here, and the executive summary reports these notable and perhaps unexpected facts:
- Nationally, according to the United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention, the number of substantiated cases of sexual abuse of children declined 40% from 1992 to 2000. Victim-reported sex offenses involving children declined by 56%.
- In Washington, sex offenses account for a small percentage of felony sentences entered annually. During fiscal year 2003, of the 27,213 felony sentences imposed in the state, 1,403 involved sex offenses.
- On average sex offenders serve longer terms in prison and jail than persons convicted of other felony offenses. In fiscal year 2003, the average sentence length for all felonies was 37.3 months, compared to 90.8 months for sex offenses.
- Sex offenders re-offend at lower rates than those convicted of other felonies. After five years, 15% of sex offenders return to prison for new offenses compared to 43% of offenders convicted of property crimes
The full report is an intriguing and even heartening read, in part because presents an example of the sentencing reform process at its best: the Washington Sentencing Guidelines Commission conducted many public hearings and marshaled an array of data and information in the process of assessing the state's sex offender laws and policies. Here's the report's own account of all the stakeholders who worked with the Commission on these issues:
During the seven public hearings, the Commission heard comments and concerns on almost every aspect of sex offenders and offenses. Persons who made written and oral presentations to the Commission included victims (teenagers and seniors), parents and family members of victims, professional victims’ advocates, victim treatment providers, legislators, judges, city and county officials, law enforcement officers, prosecutors, defense counsel, community custody/supervision officers, sex offender treatment evaluators and treatment providers, sex offender family members, proponents of a citizen’s initiative aimed at enhanced punishment, students, educators and members of the general public who attended the meeting to learn about the issues. In two locations, Seattle and Vancouver, the Commission staff spoke with convicted sex offenders and their supporters.
Monday, December 13, 2004
My waiting wish-list
With no decision today, I did not get my wish of an opinion in Booker and Fanfan as a Hanukkah present. And, unless the Supreme Court surprises us with extra opinions this month, it also seems I wasted my time writing to Santa to ask for a Booker and Fanfan opinion. But even though it appears we now must all wait until January for a sentencing present from the Supreme Court, other institutions can keep me in a holiday mood by working on this waiting wish-list of mine:
1. I wish the US Sentencing Commission supplements the fascinating data it has collected here about post-Blakely federal case processing, which could provide a fuller picture of the state of federal sentencing now.
2. I wish a few state Supreme Courts resolve pending Blakely appeals, in order to further define and refine the many post-Blakely legal questions that need to be resolved (see some background here). My own perspectives on Blakely (reflected in articles here and here) have been greatly influenced by state court rulings, and the Supreme Court apparently needs all the help it can get.
3. I wish a few state sentencing commissions (or even the offices of state Attorneys General) provide additional data and analysis on how Blakely is impacting state criminal justice systems. We get snippets from briefs and news stories, but nothing compares to the systematic analysis that can be done by an effective sentencing commission (as Minnesota's commission has shown).
4. I wish the ABA and the ALI and the Constitution Project and all the other important groups working on sentencing reform can use this extra Booker-free time to gear up for what is likely to be a hectic January. I was rooting for a decision from SCOTUS now so we might all have a few weeks to mentally process the decision before congressional re-writing of federal sentencing was realistically feasible. Now I fear we could possibly get a Supreme Court decision and then new federal sentencing legislation in rushed succession in January.
5. I wish the powers that be in college football could figure out how to create a playoff system. This mysterious blog sensibly suggests here that I watch a lot of football to keep in good cheer and keep my mind off Booker and Fanfan. But what really keeps me from being in good cheer is knowing that USSC Chair Judge Hinojosa's beloved Texas Longhorns will not get a chance to prove on the field that they might actually be the best team in college football. I suppose if the Longhorns take their frustrations out on Michigan in the Rose Bowl, that should suffice for this Buckeye.
December 13, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack