Sentencing Law and Policy

A range of sentencing stories

Though all is calm and all is bright this holiday morning, the newspapers still have an array of sentencing stories that merit a quick post. (I also need a break from toy assembly.)  So here is some sentencing news of note:

• This story from Arizona reports on a state trial in a rape case which was bifurcated so that, a month after rendering a guilty verdict, a jury could consider Blakely aggravating factors.

• This story from Kansas details why the state's coming legislative debate  over capital punishment — which is necessary because of the Kansas Supreme Court's Marsh decision (discussed here, commentary here and here) — probably won't be limited to just fixing the procedural flaw that led the Court to strike down the state's death penalty law.  The report notes that the incoming state Senate leader "expects an attempt from opponents of capital punishment to scuttle the law, though such an effort is not expected to succeed."

• Finally, returning to the pardons story (covered here and here), the papers report that Governors in South Dakota and Vermont made this year an especially Merry Christmas for a few offenders.

Happy Blakely half-birthday!

If you are eager to avoid getting tangled in the brouhaha over the proper greeting this holiday season (as recently discussed by TalkLeft), you might just say to people today "Happy Blakely half-birthday!"  That's right, today marks exactly six months since the Supreme Court rocked the sentencing world with its decision in Blakely v. Washington.  And celebrating the decision's half-birthday seems a fitting follow-up to celebrating a Blakely Festivus.

For the record, at the six-month mark, a search this afternoon of "Blakely w/2 Washington" after June 24, 2004 in the all courts database produces 1281 "hits" on Westlaw (592 in allstates, 689 in allfeds), while the same search in Lexis produces 1375 "hits" (705 in allstates, 670 in allfeds).  And, of course, these numbers do not reflect the tens of thousands of sentencings that Blakely may have impacted that have not resulted in an on-line opinion.

Gov. Rowland's interesting plea agreement

With thanks to Professor Ellen Podgor of White Collar Crime Prof Blog, I can now provide a link here to former Connecticut Governor John Rowland's plea agreement.  I pondered in this post whether the agreement included a Blakely waiver and whether it anticipated a decision in Booker and Fanfan.  Not surprisingly, these issues are well covered on page 3 of the 11-page agreement.

The entire Rowland plea agreement is a fascinating read.  It includes provisions calculating the guideline sentencing range for Rowland of 15-21 months of imprisonment.  The last three pages of the agreement constitutes a "Stipulation of Offense Conduct," and it covers the facts which support these guideline calculations.  Also of interest is a passage on Page 5 of the agreement that contemplates Rowland will argue for a downward departure from the guideline range of 15-21 months on various grounds related to his minor role in the offense and his professional and community contributions.

Interesting Blakely perspectives

Two interesting newspapers stories this morning on the Blakely beat provide details about both the system-wide and case-specific impact of the decision:

• This article from Alaska provides a system-wide perspective on Blakely.  It quotes a state public defender who explains, within a story about increased December state caseloads, that his office has been "appointed to represent 75 people in a sort of post-conviction review regarding the legality of sentence under the Blakely."  This article reinforces a point spotlighted here that the administrative burdens created by Blakely are consequential wholly apart from the decision's substantive impact on sentencing laws and outcomes.

• This article from New York provides a case-specific perspective on Blakely. The piece details the federal sentencing of a father and son for their roles in directing a massive asbestos cleanup scam.  The long sentences (19 years for the father, 25 years for the son) and the case's interesting facts make the story a fascinating read.  The article notes that the defendants' sentences were increased considerably based on judicial fact-finding and that Blakely will be a chief issue raised on appeal.

Blakely's Hawaiian punch

As noted here yesterday, this week has been surprisingly full of noteworthy Blakely rulings.  And perhaps the most significant Blakely decision comes from the 50th state, Hawaii, through the state Supreme Court's ruling in State v. Rivera, 2004 WL 2955940 (Hawai'i Dec. 22, 2004).

As the Rivera decision details, Hawaii's history with sentencing reform is lengthy and intricate, stretching back to the mid-1960s.  And, interestingly, well before the entire Blakely line of cases, the state had developed its own elaborate jurisprudence for determining which sentence-impacting facts must be alleged in an indictment and found by a jury.  (This jurisprudence disinguishes between "intrinsic" and "extrinsic" facts and seems similar to the offense/offender distinction I propose in my "Conceptualizing Blakely" article.)

After the US Supreme Court handed down Apprendi, the Hawaii Supreme Court decided in Hawaii v. Kaua, 72 P.3d 473 (Haw. 2003), that the state's extended term sentencing scheme, in which judges can enhance sentences based on findings about the need for "protection of the public," was still constitutional.  However, as noted last week here, US District Judge Susan Oki Mollway earlier this month in Kaua v. Frank, Civ. No. 03-00432 (D. Haw. Dec. 9, 2004), held in a habeas action that defendant Kaua's extended sentence clearly violates Apprendi, and that the Hawaii Supreme Court decision in Kaua was "an unreasonable application of Apprendi."

Despite the federal district court ruling, the Hawaii Supreme Court in Rivera has now again held, by a 3-2 vote, that the state's extended term sentencing scheme is constitutional.  Though the majority's ruling, available here, is lengthy and complicated, the court seems to hold that Apprendi/Blakely is inapplicable both because Hawaii has an indeterminate sentencing system AND that because findings about "protection of the public" can fit within the "prior conviction" exception. 

Writing in dissent, which is available here, Justice Acoba asserts that Blakely requires reconsideration of the court's Kaua ruling and that Blakely now means that the Sixth Amendment is violated when a sentencing judge in Hawaii imposes an extended term based on solely the judge's findings.

Did Rowland sign a Blakely waiver?

As detailed in this AP article, and also as discussed here by White Collar Crime Prof Blog, former Connecticut Governor John Rowland pleaded guilty today to one count of conspiracy to steal honest service, a felony that carries a sentence of up to five years in prison.

The AP story details that Roward struck a plea deal with prosecutors, and reports that the federal sentencing "guidelines call for a sentence of 15 to 21 months in prison, the lawyers involved said."  That report has me wondering whether Rowland's plea deal includes some sort of Blakely waiver providing that he would be subject to this sentencing range no matter what the Supreme Court says about the fate of the federal guidelines in Booker and Fanfan.

The Rowland case will be interesting to keep an eye on because we should (I dearly hope) have a decision in Booker and Fanfan by the time of Rowland's March sentencing.  And, with a statutory sentencing maximum of five year for the count of conviction, but with Rowland likely able to claim that prison time is not need to serve the purposes of punishment, a post-Booker sentencing in this case could be really interesting.  And yet, it also seems possible that all the lawyers in this case have already thought through and planned for the various possible legal contingencies in the plea agreement.

If any readers know and can share more information or insights about the Rowland deal and its sentencing components, I would be grateful.

Contrasting capital reconsiderations

I noted last week here the interesting fact that Kansas and New York, which both in the mid-1990s after long periods without capital punishment enacted new death penalty laws, now a decade later have both had their capital sentencing procedures declared unconstitutional.  (The ruling of the Kansas Supreme Court in Marsh is discussed here; the New York Court of Appeals ruling in LaValle is discussed here.) 

Also of great interest now is watching Kansas and New York reconsider the death penalty as they contemplate enacting new capital statutes without the now-identified constitutional infirmities.  (Prior post on this topic include Reconsidering the death penalty and Debating death in New York.)

Today we have this interesting article from Kansas detailing that Governor Kathleen Sebelius has now said she likely would sign a bill fixing the state's death penalty law even though, as a state legislator, Sebelius voted against the Kansas death penalty law enacted in 1994.  But, marking a remarkable contrast, this New York Times article details that NY Assembly Speaker Sheldon Silver, a long-time supporter of capital punishment, is now saying he is not sure New York needs a death penalty law anymore.

The NY Times article is especially interesting for its analysis of politics and pragmatism.  These closing paragraphs highlight some of the article's themes:

Opponents of the death penalty calculate that at least $175 million has been spent on death penalty litigation [without any executions] in the state. Supporters say that the law saves money because defendants plead guilty to lesser offenses, avoiding the cost of trials.

The numbers have persuaded Mr. Silver that there's a "purely pragmatic" argument against a law he voted to enact. Pragmatism and the death penalty. Not a coupling anyone in New York would have imagined 10 years ago.

A Blakely Festivus for the rest of us

Though I am not planning a full Festivus celebration today, with all of the grand traditions, I am inclined to engage in a little Blakely airing of grievances. 

Of course, first on my list of grievances is the lack of a decision yet in Booker and Fanfan.  I made the mistake of giving thanks last month for a quick decision, but now I am aggrieved that federal and state criminal justice actors are still waiting for desperately needed Blakely clarification and guidance.

Next on my list of grievances is the failure of legal commentators to give Blakely the respect it deserves.  In this post, I previously explained why I thought Blakely might be called the Rodney Dangerfield of Supreme Court decisions, and the "no respect" decision suffered another blow from commentator Edward Lazarus' FindLaw essay today on "The Most Important Legal Developments of 2004." Blakely does not get one mention in the essay, even though in less than 6 months the ruling has already led to an expedited Supreme Court case, generated over 1300 on-line lower court appellate rulings, impacted probably tens of thousands of sentencings, and is prompting over a dozen jurisdictions to contemplate changes to current sentencing laws.

My last grievance to air (for now) is on the local front; I want to complain a bit about most Ohio courts working so hard to avoid applying Blakely to Ohio's sentencing system.  The most recent Ohio Blakely dodge comes this week in State v. Stillman, 2004 WL 2940813, 2004-Ohio-6974 (Ohio App. 5 Dist. Dec. 20, 2004), where the court rules that Blakely essentially has no applicability to Ohio's sentencing scheme.  As detailed in this helpful recent memo from the Ohio Sentencing Commission, the 8th District Court of Appeals is the only Ohio appellate court to reverse and remand sentences on Blakely grounds, even through judicial fact-finding is central to many Ohio sentencing determinations.

I suppose I can understand what drives Ohio courts to dodge Blakely: as I have previously highlighted, Blakely's formal rule could be extremely disruptive for Ohio's functional sentencing laws (background here and here).  Nevertheless, I think a fair reading of Blakely makes it applicable to various aspects of Ohio's sentencing system.  In the end, my biggest grievance may be with the Ohio Supreme Court, which thus far has shown no interest in directly addressing Blakely's applicability in Ohio.

I probably could go on, but then I might not have energy for the Festivus feats of strength.  But readers are welcome and encouraged to celebrate a Blakely Festivus by sharing their Blakely grievances in the comments.

Media criticism of Bush's pardon practice

The newspaper opinion pages have joined the blogsphere in criticizing Bush for his stingly approach to pardons (details here and here). 

In a piece entitled "The Land of the Second Chance," Debra Saunders effectively places Bush's pardon work within the broader context of modern sentencing laws and policies (and also quotes from Margy Love's powerful words in this post).  The piece is balanced and thoughtful while detailing a few compelling cases that seem to call for executive clemency relief.  It also quotes Mary Price of Families Against Mandatory Minimums suggesting "we could probably come up with 40 names" for Bush of inmates whose sentences should be commuted.

Sister Prejean powerful perspective

Sister Helen Prejean — perhaps the nation's leading death penalty abolitionist and author of Dead Man Walking (which was made into one of the best movies about capital punishment) — has a new soon-to-be-published book entitled The Death of Innocents: An Eyewitness Account of Wrongful Executions.  Adapted from that book is a powerful article in the current issue of the New York Review of Books entitled "Death in Texas."

Sister Prejean's article, which can be access here, is a stinging indictment of then-Governor George Bush's denials of clemency to death row defendants in Texas.  The article recounts a number of old and new stories about how then-Governor Bush found ways to "distance himself from his legal and moral responsibility for executions."  (The article reinforces the notion that now-President Bush's stingy approach to pardons (discussed here and here) is in keeping with his long-standing character.)

The entire article is a compelling read, and the article's penultimate paragraph provides a sense of the piece's provocative themes and tone:

As governor, Bush certainly did not stand apart in his routine refusal to deny clemency to death row petitioners, but what does set him apart is the sheer number of executions over which he has presided.  Callous indifference to human suffering may also set Bush apart.  He may be the only government official to mock a condemned person's plea for mercy, then lie about it afterward, claiming humane feelings he never felt.  On the contrary, it seems that Bush is comfortable with using violent solutions to solve troublesome social and political realities.

More pardon buzz

The blogsphere continues to buzz about President Bush's approach to pardons.  Crime & Federalism refutes here some arguments that have been made in the comments to this post cconcerning Bush's stingy approach to the pardon power.  And White Collar Crime Prof Blog thoughtfully discusses here the fact that most of Bush's recent pardons have been of white-collar offenders.

Meanwhile, in blogsphere comments, some have urged listing "specific individuals that truly deserve a pardon."  As detailed in this Chicago Tribune article, Illinois Senator Dick Durbin has done just that by urging President Bush to pardon six Army reservists from Ohio who were court-martialed for taking equipment to carry out their mission in Iraq.

UPDATE: Chris Geidner at De Novo here wonders what all the Bush pardon bashing hopes to achieve, as he righly suggests President Bush is unlikely to be shamed into granting more pardons.  However, ever the optimist, I think it would be an important achievement (which would eventually have tangible consequences) to shift the political rhetoric around pardons and clemencies so that all chief executives — the President and state governors — see that an inappropriate failure to use this historic power is just as subject to criticism as the inappropriate use of this power. 

Moreover, I continue to hope that all the popular and political conversations about moral values and family values will come to focus on the moral and family harms that can be inflicted by overuse of our criminal justice system and incarceration.  President Bush continues to lay claim to being a compassionate conservative, and in his 2004 State of the Union address Bush called America "the land of second chance."  Through a more robust use of the pardon power, President Bush could start walking the walk, in addition to just talking the talk, about compassion and second chances.

Martha Stewart reforming

As detailed in this cnn-money story, Martha Stewart, halfway through her five-month prison sentence, was able to deliver a holiday greeting today from her minimum-security camp in West Virginia through a note to fans posted on her personal Web site.  That note, which you can access here, suggests that Martha might add sentencing reform advocacy to her busy agenda after her release.

Stewart starts her greeting by noting that so many of the 1,200 other female inmates "here in Alderson will never have the joy and wellbeing that you and I experience."  She then implores:

I beseech you all to think about these women — to encourage the American people to ask for reforms, both in sentencing guidelines, in length of incarceration for nonviolent first-time offenders, and for those involved in drug-taking.  They would be much better served in a true rehabilitation center than in prison where there is no real help, no real programs to rehabilitate, no programs to educate, no way to be prepared for life "out there" where each person will ultimately find herself, many with no skills and no preparation for living.

Especially since, as CNN reports, Martha's "net worth has been bulking up thanks to a surging stock price at Martha Stewart Living Omnimedia," Stewart will have the resources and platform to be a potent advocate for sentencing reform upon her release from prison.  I will be interested to see if her future actions follow-up on her powerful words.

New resources from The Sentencing Project

I just noticed that The Sentencing Project, a non-profit organization which does terrific research and advocacy work on a range of criminal justice issues, has on its website new resources on Blakely and on the scope of imprisonment.

On a page appropriately titled "Awaiting the Supreme Court," Executive Director Malcolm Young provides extensive background on Blakely and the pending Booker and Fanfan.  This discussion of the cases also effectively integrates (and links to) other important recent sentencing reform developments.

And a document entitled "New Prison Figures: Rising Population Despite Falling Crime Rates" provides an effective and compelling summary of the latest prison data released by the Bureau of Justice Statistics last month (discussed here).  The document also discusses nationwide sentencing developments and has an amazing final graph of different countries' incarcertaion rates (which shows that the US rate of incarceration is more than 5 times China's, more than 10 times Japan's and more than 20 times India's rate of incarceration).

Schwarzenegger also grants petty pardons

You might say California Governor Arnold Schwarzenegger is showing he can act presidential: the day after President Bush granted a few pardons to minor offenders convicted long ago (details here), Governor Schwarzenegger has, according to this story, granted pardons to three minor drug offenders all of whom were convicted more than 25 years ago.

Since former California Governor Gray Davis did not issue any pardons during his term in office, I suppose Governor Schwarzenegger should be complemented for bringing the pardon power back from termination in California.  But given that the California Senate recently felt compelled to create the California Commission on the Fair Administration of Justice to assess problems with the state’s criminal justice system (background here), I suspect there might be a few more defendants in California who merit pardon consideration.

Blakely cases keep rolling along

With all the major Blakely rulings last week (some details here), I thought this pre-holiday week might be quiet on the Blakely front.  But there are on-line already more than a dozen state and federal appellate cases dealing with Blakely issues from Monday and Tuesday of this week alone.  Here are a few of the rulings that seem most noteworthy:

FEDERAL CASES

In US v. Taveras, 2004 U.S. App. LEXIS 26540 (1st Cir. Dec. 21, 2004), the First Circuit in a per curiam opinion upholds a trial judge's consequental drug-quantity findings, which were based on seemingly suspect accomplice testimony.  Of course, this finding raises Blakely issues, but the Taveras court continues the First Circuit's approach (noted here and here) of using plain error analysis to rebuke Blakely claims.

In US v. Vaughan, 2004 U.S. App. LEXIS 26545 (10th Cir. Dec. 21, 2004), the Tenth Circuit similarly uses plain error analysis to rebuke Blakely claims in a major fraud case.  Here, the court notes the defendant "admitted in the plea agreement to all five of these [Blakely-significant] facts [and thus] has failed to show that any sentencing error under an extension of Blakely would seriously affect the fairness, integrity, or public reputation of the judicial proceedings in this case."

In US v. Mellen, 2004 U.S. App. LEXIS 26513  (D.C. Cir. Dec. 21, 2004), the D.C. Circuit, in a split 2-1 decision, overturns the trial court's calculation of the amount of loss in a fraud case.  In so doing, the court avoided having to address Blakely, but it explained: "We issue our judgment today without awaiting guidance from the Supreme Court on this question because it appears, quite apart from any constitutional concerns, that [the defendant] may be eligible for immediate release upon resentencing. To the extent necessary, the district court may apply the Supreme Court's upcoming decisions in Booker and Fanfan in the first instance at resentencing."

STATE CASES

In State v. Gomez, 2004 WL 2937808 (Ariz. App. Div. 1, Dec. 21, 2004), the court examines the rules for applying Arizona's Proposition 200, which was "a voter initiative also known as the Drug Medicalization, Prevention, and Control Act of 1996 [which seeks] to treat initial convictions for personal possession and use of a controlled substance as a medical and social problem."  Significantly, the court finds the provision which "disqualifies an otherwise eligible defendant from mandatory probation for a drug offense based solely on a finding that the defendant has been 'indicted for a violent crime' to be unconstitutional."

In State v. Brown, 2004 WL 2938643 (Minn. App. Dec. 21, 2004), the court sustains a Blakely objection to the application of Minnesota's career offender sentencing statute.  Here's how the Brown court explains why the defendant's sentence was Blakely problematic: "Although the existence of prior convictions falls under an exception to the Blakely requirement of jury findings, an upward departure under the statute requires an admission or a jury verdict on the added finding that the convictions formed a pattern of criminal conduct."

Bush's stingy pardon practice

BUMP AND UPDATE: I see that Orin Kerr at The Volokh Conspiracy has a powerful post here also criticizing President Bush's under-use of his pardon power.  In the hope this issue will continue to draw attention in the blogsphere and the media, I have moved up my post on the topic from last night.

Also, for those interested in an in-depth academic and historical examination of the pardon power, the Federal Sentencing Reporter assembled a terrific collection of original articles and historical materials a few years ago in a special double issue on the pardon power and sentencing policy.  A summary of that issue can be found here, and the full table of contents and on-line ordering information is at this link.

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From 12/21 at 9pm:

According to this AP story, President George Bush granted four pardons today, which gives him a total of just 31 pardons and commutations during his first term.  As the AP story notes, this total is "far off the pace of most modern presidents and less than half the 77 granted by his father, President George H.W. Bush, during his single term from 1989 to 1993." 

In a few recent prior posts, I have discussed President Bush's stingy approach to the historic clemency power, as well as other clemency news:

• Pardon me
• No New York clemencies this season
• Come all thee clemencies

UPDATE: Seeking more insights about President Bush's approach to these matters, I wrote to Margaret Colgate Love, a specialist in post-conviction remedies and executive clemency, who served for seven years as US Pardon Attorney under the first President Bush and President Clinton.  Here's her powerful reaction to the recently announced pardons:

These four grants are collectively so banal and inconsequential as to demonstrate once again President Bush's disdain for his own pardon power. In all four cases the crimes were very minor (all were sentenced to probation), and three of the four occurred more than 25 years ago. To confine use of the power to these kinds of cases, as Bush has throughout his four years in office, trivializes and squanders it. When you think of the enormous good that could be done with the power, and what the Framers thought about it as a test of presidential mettle and integrity, you can see that it is a truer measure of presidential courage than almost anything else the President does. Don't forget that this is the ONLY way a federal offender can get relief from the collateral consequences of conviction, which under state law can be very severe.

Relatedly, President Bush has granted only 29 of the 707 pardon cases he has decided to date. This means that his pardon grant rate is less than 3% (his father's pardon grant rate was double that, and all other 20th century Presidents were well into double digits). In addition, the Office of the Pardon Attorney reports that there are over 700 pardon cases still awaiting presidential action -- many of which were filed during the Clinton administration. (This doesn't count the 2000-odd commutation applications that are presently pending). The quality and quantity of this President's pardon grants are hard to square with his statements about the importance of giving convicted people a second chance.

The morning's sentencing news

It is another morning with newspapers filled with interesting stories on both capital and non-capital sentencing topics.  Here's a sample of some of the highlights:

• On the death penalty front, the big news from Virginia, as detailed here and here, comes from state Attorney General Jerry Kilgore's proposed legislation to make it easier for prosecutors to seek the death penalty in cases like the Washington-area sniper killings.  In this editorial, the Roanoke Times is already criticizing the AG for "playing politics with life and death."

• In other capital developments up the coast, this editorial from The Republican in Massachusetts advocates that Connecticut not execute serial killer Michael Ross even though there are no doubts about his guilt.  (Background on the Ross case can be found here and here.)

• From the Blakely desk, this story from Pittsburgh details the Blakely claims being made by a retired state trooper appealing his 1989 homicide sentence.  And this story from St. Louis details that St. Louis Rams player Leonard Little has failed in his attempt, noted previously here, to use Blakely to get his pending felony drunken driving charge dismissed.

Everything you wanted to know about Blakely in Indiana

Though, as detailed here and here, I have given up tracking all state Blakely decisions, two Michaels continue to do great work tracking the story of Blakely in Indiana. 

As I have noted before, Michael Ausbrook over at INCourts covers the ins and outs of many Indiana Blakely rulings.  And today I received from Michael Limrick (a former clerk to Justice Theodore Boehm of the Indiana Supreme Court) a copy of a draft article that will appear in the Jan./Feb. Indiana bar association magazine, Res Gestae.  Michael calls the article, which can be downloaded below, "basically an update on what the Indiana Court of Appeals has done so far."

Download limrick_on_blakely_in_indiana.doc

Interesting state Blakely reports

Two interesting newspapers stories this morning on the Blakely beat:

• This article from Oregon discusses the state's continuing efforts to deal with the fallout from Blakely.  This article discusses the Oregon Supreme Court's ruling last week in Dilts (detailed here), and notes that lawyers now "disagree about what happens next in Oregon."  The article also indicates that these matters are "under review by a task force appointed by Gov. Ted Kulongoski and headed by [state Attorney General] Myers and by a joint legislative committee."

• This article from Missouri mixes Blakely with sports, as it reports that Leonard Little, a member of the St. Louis Rams, is invoking Blakely to try to get his pending felony drunken driving charge dismissed.   As the article explains, Little's lawyers have argued in papers "filed with the Missouri Supreme Court that by Missouri law, a judge, not a jury, has decided that Little is a persistent offender, and the statute that makes his pending case a felony therefore fails to pass muster."

I recall that this mysterious blogger encouraged me to watch a lot of football to take my mind of of Blakely and Booker/Fanfan.  But apparently even football players have Blakely claims to make.

UPDATE: And here's an article from Minnesota detailing that a former state judge is invoking Blakely in an effort to reduce his prison sentence for stealing money from a mentally disabled woman.

No New York clemencies this season

In a recent post entitled Come all thee clemencies, I noted that the holiday season is a common time for clemency grants (and not just for turkeys), and I reviewed encouraging clemency developments in a number of states.

But this Newsday article details that New York Governor George Pataki has decided not to grant clemency to any state prison inmates this year.  In a post entitled Pataki the Grinch, TalkLeft does an effective job criticizing Gov. Pataki for his decision.

Predicting the Supreme Court's coming sentencing docket

It is, of course, premature to speculate about the Supreme Court's next Blakely case before it decides Booker and Fanfan.  But interesting posts here and here by Tom Goldstein over at the SCOTUSblog about the Supreme Court's docket has me wondering whether cert. petitions are being filed by federal defendants like Levy (background here) or state defendants like Lucien (background here) to make it possible the Court could speak directly to Apprendi/Blakely retroactivity issues this term.  (Of course, it is possible, though I think unlikely, that the High Court will speak directly to retroactivity issues in Booker and Fanfan.)

Meanwhile, as this AP story details, Kansas prosecutors are hoping that the Supreme Court might take up one more death penalty case this term.  As the article details, the Kansas Supreme Court agreed to stay its Marsh ruling last week (details here) declaring Kansas's death penalty law unconstitutional while Kansas Attorney General Phill Kline pursues an appeal to the Supreme Court.  (However, since only six defendants' fates depend on the Marsh ruling, while the fates of hundreds of thousands of defendants might depend on Blakely's retroactivity, I am not sure the Marsh case ought to be a High Court priority.)

Blakely's lawyer gets more props

I joked here this weekend that Blakely might be called the Rodney Dangerfield of Supreme Court decisions because it may not always gets the respect I think it deserves.  But, thankfully, at least Blakely's Supreme Court lawyer is getting the respect he is due.

As discussed here, earlier this month the Los Angeles Times did this lovely profile of Jeff Fisher, the (young) Seattle lawyer who argued and won both Blakely and Crawford v. Washington last term before the Supreme Court.  And now, based on this amazing High Court track record, The National Law Journal in this article has named Jeff runner-up as "Lawyer of the Year."  (To find out who beat out Jeff, read here; bonus points to any reader who can name the substantial link the winner has to sentencing reform.)

Debating sentencing data

A few weeks ago, as noted here, the Washington Post ran this op-ed entitled "Mandatory Madness" in which law professor and NACDL president Barry Scheck calls for reform of harsh federal mandatory drug sentences.  In the middle of his wide-ranging and powerful critique of federal sentencing laws, Professor Scheck stated: "According to the Bureau of Prisons, more than half of the 180,000-plus people in federal institutions are there for drug law violations. Most are low-level, small-time and nonviolent offenders."

This weekend, the Washington Post ran this letter in response from Dan Bryant, who is identified as "assistant attorney general for legal policy at the Justice Department."  The letter asserts that Scheck's claim about low-level, federal drug offenders "is inaccurate," and then rattles off the following statistics:

Justice Department data show that 91 percent of all prisoners (state and federal) are either recidivists or violent offenders. Of those in state prisons, 76 percent are multiple offenders and 62 percent have a history of violence, while a full 66 percent of federal offenders have been convicted of multiple or violent crimes.

Furthermore, most nonviolent criminals are neither low-level nor small-time: 84 percent of these "nonviolent" offenders in state prison have prior criminal records, averaging more than nine arrests and four convictions apiece. In fact, a third of these nonviolent offenders could even be classified as "previously violent," as they have previous arrests for violent crimes. Federal nonviolent inmates have only marginally less criminal backgrounds than their state counterparts: 79 percent have prior records, averaging more than six arrests and two convictions. The notion that our prisons are filled with nonviolent, first-time offenders is simply not true.

This letter concludes: "We agree that there should be a healthy debate about sentencing, but we insist that this requires equipping Congress and the American people with the facts, not misleading rhetoric."  (The use of the "we" hints that this letter may represent a semi-official Justice Department response, rather than Dan Bryant's personal views.  Indeed, the letter echoes points and phrases used by Assistant AG Christopher Wray, in his official testimony to the US Sentencing Commission last month.)

Over the weekend, this letter and its data-based rebuttal of Professor Scheck's assertions have been the buzz of a listserve to which I subscribe.  In the dialogue, I noted that the letter makes heavy use of state statistics (or combined state/federal statistics) in response to an op-ed which was focused exclusively on federal sentencing.  Another person spotlighted that the letter makes a "rhetorical slip from 'low-level' to 'first-time' offenders."  Others noted that even some minor federal drug offenses are statistically categorized as "crimes of violence."  For a letter espousing the importance of facts over misleading rhetoric, the letter does a mighty good job stressing facts which could mislead.

Putting aside dickering over rhetorical use of facts, the data stressed in the Bryant letter actually prove Scheck's chief points.  The statement that "66 percent of federal offenders have been convicted of multiple or violent crimes" in turn means that 34% (more than 1/3) of all federal offenders are one-time, nonviolent offenders (and I suspect the percentage of low-level, nonviolent drug offenders may be even higher).  With a federal prison population of over 180,000, this suggests that in excess of 60,000 persons are serving time in a federal prison as a result of a one-time, nonviolent offense.   It seems our federal prisons are in fact filled with nonviolent, first-time offenders.  (Notably, the 60,000 persons now serving federal time as a result of a one-time, nonviolent offense is more than double the total federal prison population 25 years ago.)

I am glad to see from the Bryant letter that the Justice Department welcomes "healthy debate about sentencing," and I am also glad to see an emphasis on offenders "convicted of multiple or violent crimes."  The states have generally been effective at focusing long sentences on repeat and violent offenders, and federal law should follow their lead.  Indeed, based on the themes and claims in the Bryant letter, it would seem that DOJ would and should be against all mandatory sentencing except for serious recidivist or violent criminals.  That was the main thrust of Scheck's op-ed, and a careful analysis of the Bryant letter perhaps reveals more harmony than discord in views about sensible federal sentencing policy.

A morning full of sentencing stories

The newspapers this morning have a number of interesting stories on a number of interesting and diverse sentencing topics.  Here's a sample of some of the highlights:

• On the Blakely front, this article from the Minneapolis Star Tribune discusses thoughtfully the struggles in Minnesota with state sentencing procedures after Blakely; this article from the Pittsburgh Post-Gazette explores possible reasons why the Supreme Court has not decided Booker and Fanfan yet.

• In other state sentencing stories, this interesting article from Vermont discusses the Governor's plans "to release a detailed proposal to ease the overcrowding that has been plaguing the corrections system."  As the article details, the plan includes "recommendations to build a work camp and to use sophisticated technology to monitor inmates outside of the traditional prison setting."

• From the death penalty desk, this article from the New York Times analyzes the on-going debate over revising New York's (now unconstitutional) death penalty law; and editorials from Michigan and Ohio provide more arguments for reconsidering, or at least reexamining, the use of capital punishment (similar recent editorials are discussed here).

New California report on women and parole

This weekend I received a copy of "Breaking the Barriers for Women on Parole," a report recently produced by California's Little Hoover Commission, a governmental watchdog agency.  This sizeable report — which runs over 100 pages but has an effective executive summary (and can be downloaded here) — addresses not only parole issues, but also California's entire correctional structure while urging using female offenders as pioneers for system-wide reforms.   

This fact sheet from the Commission details the growth in California's female prison population over the last two decades, as well as interesting statistics about male and female offenders.  And this press release provides both background and context for the report.  Here are some highlights from the press release:

The State could save money, improve public safety and break the cycle of crime if it reformed the way it incarcerates women offenders and supervises them on parole, the Little Hoover Commission concluded Wednesday....

Most female felons were victims before they were offenders, most are single parents, and most were convicted of non-violent, drug or property crimes. The Commission urged the State to develop a new strategy for women offenders that relies less on large and remote prisons designed to incapacitate violent offenders and more on community correctional facilities that can better reconnect paroling women to jobs, housing, emotional supports and their families....

In this report, the Commission challenged the State to be smart on crime — not just tough on crime — and to start with women offenders.  "Fixing the system for women parolees also can be a good test of the correctional system’s desire and capacity to improve.  Lessons learned improving outcomes for women can inspire and guide the management of the critically necessary larger reforms," Commission Chairman Michael E. Alpert said.

State courts gone Blakely wild

The important Blakely rulings this week from the Minnesota Supreme Court in Shattuck (details here) and from the Oregon Supreme Court in Dilts (details here) are just one reflection of all the recent state Blakely activity.  To twist my favorite lines from the all-time great movie Airplane!, "Looks like I picked the right weeks to stop tracking state Blakely cases." (Background here and here.)

In the first two weeks of December, there were over 100 state intermediate appellate Blakely decisions appearing on-line.  And on December 16 alone there were major Blakely rulings in no less than seven states: in addition to Shattuck from Minnesota and Dilts in Oregon, Arizona had State v. Gatliff, 2004 WL 2902551 (Ariz. App. Div. 1 Dec. 16, 2004), Colorado had People v. Barton, 2004 WL 2903510 (Colo. App. Dec. 16, 2004) (previously discussed here), Indiana had Berry v. State, 2004 WL 2903687 (Ind. App. Dec. 16, 2004), Washington had State v. Mabry, 2004 WL 2905239 (Wash. App. Div. 3 Dec. 16, 2004), and California had its standard daily complement of more than a half-dozen published and unpublished Blakely rulings.

I think all the recent state Blakely activity, especially late last week, likely is partially a result of the non-arrival of Booker and Fanfan.  The state courts now know they are going to have to wait at least another month before getting additional Blakely guidance from the US Supreme Court.  Thus, even though they realize that, in the words of the Oregon Supreme Court, they "may be shooting at a moving target," these courts perhaps now feel compelled to render decisions in major Blakely cases rather than continue to wait and hope for the US Supreme Court to soon clear up some of the Blakely confusion.

Reconsidering the death penalty

In this editorial, the Wichita Eagle calls for the Kansas legislature to respond to the Kansas Supreme Court's recent decision declaring the state's death penalty unconstitutional (basics here) by taking "a hard look at its troubled 10-year history."  This editorial concludes: "The high costs and problems on appeal are making it harder all the time to see why the death penalty is worth having in Kansas."

Relatedly, this editorial from Connecticut uses the planned execution of Michael Ross, the first person due to be executed in Connecticut in the modern death penalty era (details here), to argue that a "civilized nation should not adopt as public policy laws that give prosecutors the right to execute human beings."  This editorial concludes: "The legislature needs to act to reaffirm human dignity and the sanctity of human life. Carrying out death penalties does neither."