Sentencing Law and Policy

Suggesting sentencing resolutions

New Year's Day means, in addition to reflecting on the year just completed, making resolutions and seeing if I can go the whole day without breaking them.  (I was thinking of adding "blog less" to the standard "exercise more" and "eat less" resolutions until I saw that blogging makes me one of the People of the Year.) 

But, even more fun than making resolutions for myself is making resolutions for others in the sentencing world.  So here goes:

US Supreme Court: Decide Booker and Fanfan ASAP and grant cert. on additional cases to resolve any key Blakely issues left unresolved in Booker and Fanfan.

US Congress: Do not over-react to Booker and Fanfan by enacting rash sentencing legislation; have a series of hearings and listen to the advice from judges, the USSC, prosecutors, defense counsel and others on the sentencing front-lines.

US Sentencing Commission: Continue to support an open, balanced and data-driven dialogue about federal sentencing law and policy while taking an active and bold leadership role in the policy debate over responses to Booker and Fanfan.

US Justice Department: Act more like a department of justice and less like a department of prosecutors; realize that a shorter sentence is not always an unjust sentence.

State Courts: Keep trying to sort out and seek thoughtful resolutions to all the tough questions raised by Blakely while trying to achieve justice in individual cases.

State Legislatures and Sentencing Commissions: Keep trying to develop cautious and measured responses to Blakely which generally seek to honor, rather than evade, the principles motivating the decision.

President/Governors: Seek to promote, in part through the use of historic clemency powers, a more balanced and humane political and public dialogue about crime and punishment.

I could go on and suggest resolutions for line prosecutors and defense counsel and probation officers and many others, but I will stop here and simply encourage readers to use the comments to add their own sentencing resolutions.

CJ Rehnquist sets notable themes for 2005

Thanks to the folks at SCOTUSBlog, we can all start the new year reading Chief Justice William Rehnquist's 2004 year-end report on the federal judiciary.  As always, the report is an interesting and nuanced document.  Lyle Denniston of SCOTUSBlog shares his views here, and Howard Bashman at How Appealing has already collected major news accounts of the report here.

The media focus, not surprisingly, is on CJ Rehnquist's discussion of "recently mounting criticism of judges for engaging in what is often referred to as 'judicial activism.'"  But also of note in the report are comments about "the judicial budget crisis facing the country," "the critical need for additional judgeships," and "the relationship between the Judicial Branch and the Legislative Branch."

As is my wont, I read the Chief Justice's comments through the lens of Blakely.  I suspect we may hear cries of "activism" if (when?) the Supreme Court declares aspects of the federal guidelines unconstitutional in Booker and Fanfan.  And the fallout from Blakely could exacerbate the judicial budget crisis and the need for additional judgeships.  Moreover, as detailed in CJ Rehnquist's 2003 year-end report on the federal judiciary, the development of federal sentencing law and policy has produced significant acrimony between Congress and the federal judiciary well before Blakely came along.

Indeed, as we all prepare for what could be a very eventful year in federal sentencing, CJ Rehnquist's comments in his 2003 report about judicial input on sentencing legislation merit close review.  If (when?) Congress responds to a decision in Booker and Fanfan, I hope it will heed these astute points from the Chief Justice:

It is Congress's job to legislate; but each branch of our government has a unique perspective, and taking into account these diverse perspectives improves the process....  Judges have a perspective on the administration of justice that is not necessarily available to members of Congress and the people they represent.  Judges have, again by Constitutional design, an institutional commitment to the independent administration of justice and are able to see the consequences of judicial reform proposals that legislative sponsors may not be in a position to see.  Consultation with the Judiciary will improve both the process and the product.

Blakely gets a little year-end respect

I have previously explained in posts here and here why I think Blakely might be called the Rodney Dangerfield of Supreme Court decisions because its has not always received the respect it deserves from legal commentators.  I was thus gratified to see that the decision did get at least little play in a few legal year-in-review pieces this week.  (Of course, Blakely gets plenty of love in my own Sentencing Year in Review.)

Specifically, the import and impact of Blakely is noted in this essay entitled "2004's Legal Hits & Misses" by CBS News legal analyst Andrew Cohen.  In addition, this press release from Thomson West has Blakely on its list of "Top Legal Stories of Year."

Highlights of a remarkable USSC document

The US Sentencing Commission's recently posted "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here; discussed here) is a remarkable document which, though "preliminary" and "anecdotal," paints a vivid and fascinating picture of federal sentencing in the post-Blakely world.  I could do a dozen posts about the memo; every section and nearly every sentence contributes new insights to an understanding of the current state of federal sentencing.   For now, I will be content to urge evryone to read the document and provide just a few highlights from the text of the memo here:

Continuances. Several lines of evidence suggest that Blakely has led to a delay in final sentencing in a large portion of cases. A decline in sentencings is reflected in the decrease in case documentation received by the Commission.... Interviews in the 7th and 9th circuits confirm that continuances have generally increased in courts holding that Blakely applies to the federal guidelines, although there is considerable variation from district to district....  Some court administrators are concerned that, after a slow summer, the backlog of cases will strain resources when the cases start moving.

Sentencing post-Blakely. Courts have identified a limited range of possible responses to the Blakely decision, as outlined in the decision tree attached to this report.... Among courts that have held that Blakely applies to the federal guidelines, the most common response appears to be to treat the guidelines as advisory.

Alternative sentencing. Interviewees in our survey in several districts also reported that judges were not announcing alternative sentences and one judge said he had tried the practice but abandoned it. The Blakely coding project has found documentary evidence of alternative sentencing in just 4.9 percent of the cases coded as of November 1.

Case and factor severability. Documentary data are not yet sufficient to quantify the portion of cases adopting any particular approach to severability. Interviews in the 7th and 9th circuits suggest that most judges are holding the guidelines invalid only in cases with offending adjustments. Further, there is evidence that many judges, even in the 9th circuit, resist severing the offending provisions and applying the guidelines without aggravating adjustments.

Sentencing "windfalls." Interviews with participants in the 7th and 9th circuits suggest that sentencing windfalls due to non-application of aggravating adjustments have occurred but are relatively rare. Windfalls appear to be largely limited to cases that plead guilty pre-Blakely, because defendants now stipulate to at least some of the aggravating adjustment or waive their Blakely rights.

Reviewing the death penalty nationwide and in one California case

Drawing on many of this year's major capital sentencing stories (some of which are discussed here and here and here), the Chicago Tribune has this terrific article reviewing nationwide death penalty developments in 2004.  The article comprehensively reviews recent data and policy debates to explain that there are "signs of an apparent decline in the death penalty," but that the "falling numbers [of executions and death sentences] don't tell the whole story." 

The Tribune article astutely examines the death penalty in specific states, although it does not note that capital stories in California are heating up after the Ninth Circuit this week rejected a habeas appeal of Donald Beardslee who is scheduled to be executed on January 19 (background in this post from How Appealing and in this article).  Thoughtful articles today from the San Francisco Chronicle and the San Jose Mercury News detail that Beardslee has now petitioned Governor Arnold Schwarzenegger for clemency. 

According to the Mercury News article, Beardslee's lawyers 48-page clemency petition asks for commutation to life without parole, citing Beardslee's "impeccable record" as an inmate, his "severe brain damage," and the fact that he "played a lesser role in the murders than co-defendants who did not receive the death penalty after being convicted."  The petition apparently states: "A commutation of Mr. Beardslee's death sentence is not only a merciful result, it is the just result.''

It will be interesting to see how Governor Schwarzenegger reviews this petition (since, as noted in this Washington Post editorial, he has been been more willing than his predecessors to give offenders second chances).  The Beardslee case is shaping up as a notable test of Professor Austin Sarat's recent comments on the disappearance of mercy in capital cases.

Three interesting (and long) reads from the Ninth Circuit

The Ninth Circuit has issued three interesting sentencing opinions over the last few days (thank to How Appealing and a reader for tips).  All the cases touch on Blakely issues briefly, but they are more interesting for their facts and for highlighting the intricacies and complications of federal sentencing laws.  I cannot detail all the particulars, but I can provide a cursory overview.

In US v. Lopez-Zamora, No. 03-50304 (9th Cir. Dec. 29, 2004), the defendant appealed the denial of a downward departure in an illegal entry case based on the minor nature of a prior felony.  The court explains that the defendant's argument requires an analysis of "the interplay among three versions of the United States Sentencing Guidelines § 2L1.2(b)(1)(A) — the 1995, 1997, and 2001 versions."  Twenty pages later (and over a 9 page dissent), the court concludes a departure would have been legally permissible, but it still affirms the district court's sentence.  And the court relies on the prior conviction exception to dispose of any Blakely concerns.

In US v. Bad Marriage, No. 03-30404 (9th Cir. Dec. 30, 2004), the Ninth Circuit reverses an upward departure based on the defendant's criminal history in an assault case.  Here's the provocative opening paragraph of the opinion:

This case is a powerful indictment of the criminal justice system.  Our social and penal policies are failing to alleviate alcohol abuse on Indian reservations and the crime to which it gives rise.  These problems cry out for treatment, not simply more prison time.

The court then needs 23 pages to reject the upward departure by the district court (and along the way explains that, by invalidating the departure on the facts, "we do not resolve whether, or how, Blakely affects upward departures" based on criminal history).  The dissent here needed only 5 pages to express disagreement with the court's holding.

In US v. Gordon, No. 03-10322 (9th Cir. Dec. 30, 2004), the court examines the $27 million restitution order imposed in a major wire fraud case involving a "promising federal appellate law clerk gone bad."  After 23 pages of intricate analysis of the federal restitution statutes (and after dropping a footnote to note the Ninth Circuit's view that restitution orders are not impacted by Blakely), the court partially affirms and partially reverses the district court's restitution order.  One member of the panel adds six pages to explain his partial dissent.

All tolled, these cases provide 90 pages of federal sentencing fun to keep sentencing nerds busy while we wait to ring in the new year.

A January comeback for the death penalty?

As I noted here, December has been a remarkable month for the death penalty because it has been the first month without an execution in the United States since July 1994.  But, for different reasons, January is also shaping up to be a remarkable month for the death penalty.  Because of pending executions and coming legal and policy debates, January will include noteworthy death penalty stories from coast-to-coast: 

• In Massachusetts , as this article details, there is a brewing policy debate over Governor Mitt Romney's proposed bill to bring the death penalty back to the state (some background here). 

• In Connecticut, as this article details, the legal battle over the planned January execution of serial killer Michael Ross has made it to the state Supreme Court (some background here).

• In Kansas, as this article details, the state is seeking reconsideration of the Kansas Supreme Court's decision to invalidate the state's capital sentencing procedures (basics here, commentary here and here).

• In California, as effectively detailed in this post from How Appealing and in this article, the Ninth Circuit has quickly rejected a habeas appeal which removes one more legal barrier to the scheduled January 19 execution of Donald Beardslee.

And, perhaps making certain we will not have another execution free month, Texas has four executions scheduled for January (despite the recent scrutiny Texas cases are getting, as detailed here and here).

And in addition to all these happenings, also in the works is AG nominee Alberto Gonzales's Senate confirmation hearing (with a death penalty backstory as noted here and here and here), as well as a possible Supreme Court decision in Roper on the juvenile death penalty (background here and here).

A belated information present from the USSC

In my testimony last month to the US Sentencing Commission, I urged the USSC to examine post-Blakely developments, especially in the Seventh and Ninth Circuits where Blakely has been deemed applicable to the federal guidelines, to help assess whether a "quick legislative fix" would be truly essential after a possible ruling in Booker and Fanfan applying Blakely to the federal system.  Thus, I am very pleased to see that the USSC now has posted on its Booker/Fanfan page a document entitled "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here).

Here is how the USSC describes this fascinating new document on its Booker/Fanfan page:

While awaiting the submission and analysis of empirical data on the effect of the Blakely decision, the Commission staff conducted a survey of 40 sample subjects (judges, defense counsel, and probation officers) in the Seventh and Ninth Circuits to attempt to determine, through anecdotal means, how those jurisdictions are handling their criminal caseloads.

Though this document is, as stressed by the USSC, "preliminary" and "anecdotal" and only includes cases through October, it is still an extremely important and interesting (partial) report on the post-Blakely state of federal sentencing.  Along with this week's WSJ article on federal court doings, this document is a must read for everyone interested in assessing both the present and possible future of federal sentencing.

In subsequent posts over the next few days, I will highlight some of the most essential elements of this memo and also reflect on what it suggests for those planning for a post-Booker world.  For now, let me just lavish the USSC with praise for making this document publically available.  Perhaps this good deed will bring good karma for USSC Chair Judge Hinojosa's beloved Texas Longhorns (who will need to do a lot better against a Big Ten team in the Rose Bowl than another Big 12 team did against my Buckeyes in the Alamo Bowl last night).

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.

Another way to be punished without conviction

The Blakely ruling at its core seems sound to me because it will generally prevent persons from being punished for crimes for which they were not convicted (which is a not-uncommon practice under the existing federal guidelines).   But this interesting article from Utah shows that, even after Blakely, there are still some ways persons can be punished for unconvicted conduct.

The article reports on a decision by the Utah Board of Pardons and Parole to keep a man in jail for armed robbery after DNA evidence linked him to a series of rapes:

Some legal observers say the case of Rudy Michael Romero, 40, sets a dangerous precedent, because Romero is effectively being held in prison on an indeterminate sentence for crimes for which he was never convicted. 

Romero was sentenced to five years to life for aggravated robbery, and was scheduled to be paroled July 27 after serving 10 years of his sentence.  But the parole board rescinded the date after learning June 22 he had been implicated in five rapes committed in the early 1990s after the crime lab matched his DNA with preserved evidence.

Romero has no known sexual-assault convictions and wasn't implicated in the cases until the state crime lab began to take saliva samples from prison convicts to match against DNA evidence in unsolved crimes. However, Romero cannot be tried for the Jordan River rapes because the four-year-statute of limitations has expired.

The article also notes that "according to state law, the board's decisions are absolute and cannot be appealed."  However, in a post-Blakely world, it will be interesting to see if courts might be more willing to intervene in a decision of this sort than in the past.

The capital story of clemency

Professor Austin Sarat, who has written extensively about the law and sociology of capital punishment, has this potent Findlaw article about clemeny decision-making in capital cases.  The  piece examines clemency and the concept of mercy in death penalty cases while lamenting that "In capital cases throughout the country ... clemency — and mercy — have all but disappeared."

Though Sarat's focus is just on clemency in capital cases, the themes he develops in his article dovetail with all the recent discussion of executive use of the pardon power.  In addition, with AG nominee Alberto Gonzales's Senate confirmation hearing now scheduled for next week, all of these issues could soon take center stage in the public dialogue about our justice system. 

Here are some of my more recent posts on these topics:

PARDONS:

• Interesting state pardon stories
• The Washington Post on Bush's pardons
• Bush's stingy pardon practice
• More pardon buzz
• Media criticism of Bush's pardon practice

GONZALES AND CAPITAL CLEMENCY:

• Sister Prejean's powerful perspective
• The AG and the death penalty
• AG nominee Gonzales and sentencing issues

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.

Another Yarbrough update

Earlier this month, I discussed here the remarkable ruling of the Ohio Supreme Court in State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087 (Dec. 1, 2004), in which a unanimous court concluded it must reverse a death sentence for the gruesome murders of two Ohio college students for lack of jurisdiction because the murders were committed in Pennsylvania.  Following up, as detailed here, I posted the motion for reconsideration filed in Yarbrough at the request of Chris Muha, a Yale Law School student who is the older brother of Brian Muha, who was murdered 5 years ago by Terrell Yarbrough.  A fascinating dialogue to this motion appeared in the comments and elsewhere in the blogsphere (thanks to posts by Orin Kerr and Mark Godsey and Chris Geidner and many others).

I can now report that the Ohio Supreme Court yesterday denied without opinion the motion for reconsideration in Yarbrough, although one justice, Francis Sweeney, dissented.  Chris Muha has responded by requesting that I post a memo he has written in which he asserts that "what might amount to the state's strongest argument has only recently come to light."  In this memo, which can be downloaded below, Chris contends that the Model Penal Code, from which Ohio's criminal code is largely derived, "would give Ohio jurisdiction over the murders committed by Terrell Yarbrough."

As before, Chris is eager for blogsphere feedback on his legal analysis.  As he explained in an e-mail to me:

I would love to get feedback on [this memo], not only for my own working through of all of this, but because there's a possibility that Nathan Herring, Yarbrough's accomplice, will appeal his own murder convictions, in which case we might get the chance to fully litigate the arguments we made in the motion.  I'll  also be honest and say that I really think the court got all of this  wrong, and that I would like to see that fact recognized....  [The prior posting] seemed to generate a lot of  productive discussion, which I genuinely benefitted from, and for which I'm grateful.

Chris can be reached by e-mail at [email protected].  He also noted to me that he and his mother will be on the O'Reilly Factor tomorrow (Thursday night) to discuss these matters.

Download yarbrough_mpc_and_2901.doc

More Texas sentencing grits

Scott Henson at Grits for Breakfast (which I have now added to my blogroll) has been doing an especially strong job lately covering drug sentencing and the economics of sentencing in Texas. 

For example, this morning Scott has this interesting post about Texas criminal justice officials pleading with the Texas Legislature to restore drug treatment funding for parolees, while claiming that cuts to treatment programs in 2003 led to greater recidivism.  Scott's report is an interesting follow-up to this prior post about the efficacy of drug courts in Texas.

And yesterday, Scott thoughtfully reported here on a state bill "which would lower the penalty in Texas for possession of less than an ounce of pot to a class C misdemeanor, which is the equivalent of a fine-only traffic ticket."  Both Scott's post and this news story highlight the state economic benefits that could flow from such a sentencing reform.

The death penalty coming and going

Two newspaper articles about proposed capital punishment reforms provide a remarkable window into the dynamic and unpredictable world of the death penalty these days.

First, from Boston comes this article detailing that Massachusetts Governor Mitt Romney is preparing to file a death penalty bill early next year based on the work of the commission he created to develop a nearly "foolproof" death penalty system (the interesting report of that commission is available here).  The article reports that Romney calls his bill "as close to ideal" as possible, and that Romney envisions his bill as a national model "that other states with more lax death penalty laws could adopt."

Then, from Virginia we get this article detailing that "death penalty opponents will urge the Virginia General Assembly to abolish capital punishment for juveniles."  The article notes that activists have formed an Alliance to End the Juvenile Death Penalty, and that they are pressing for legislative action even before the Supreme Court resolves the Roper case (which, as discussed here, concerns the constitutionality of executing juvenile offenders).

Though I doubt either of these capital reform proposals will become law anytime soon, it feels like another Bizarro world moment when there is talk of expanding the death penalty in Massachusetts and restricting it in Virginia.

Interesting state pardon stories

Though President Bush's stingy approach to pardons is getting the media and blog buzz, the stories of state governors considering pardons and clemencies this time of year are likewise compelling.  (Tuesday morning's great Washington Post editorial merits extra credit for contrasting Bush's approach on these issues to that of republican governors in California and Maryland.)

A few recent newspaper articles capture some of the poltical and human dynamics that surround state pardon and clemency decision-making.  The titles of the articles alone provide a sense of the drama:

• from Missouri, we get Nun makes passionate case for pardon of Missouri prisoner;
• from Washington, its Yakima prosecutor objects to governor's clemency;
• and West Virginia gives us Wise tackles inmates' petitions.

In addition, linked at the end of this post are earlier stories about pardons issued by governors in South Dakota and Vermont.

More Blakely state reports

With many thanks to the many FOBs ("friends of blog") sending in reports, I can follow up this morning's state Blakely round-up with some additional interesting state reporting.  The states of note this afternoon are Minnesota, Ohio and Washington.

MINNESOTA: The news from comes in the form of two decisions from Minnesota Court of Appeals.  In State v. Hagen, C0-02-1318 (Minn. App. Dec. 28, 2004), the court clarifies that an "upward durational departure under the Minnesota Sentencing Guidelines may not be based on an "admission" by the defendant, under Blakely v. Washington, 124 S. Ct. 2531 (2004), unless the "admission" to an aggravating factor is accompanied by the defendant's waiver of his or her right to a jury trial on the aggravating factor."  In State v. Brooks, A03-2050 (Minn. App. Dec. 28, 2004), the court concluded that Blakely did "does not require that a jury find, or a defendant admit, the existence of a custody status point" because (according to the court) assignment of those points are like a prior conviction.

OHIO: The report here is a third-hand account from an Ohio lawyer "that Ohio Supreme Court Chief Justice Moyer, at a training for new judges, said that the Ohio Supreme Court was taking Blakely 'VERY seriously.'"  This is great news because, as noted in a number of previous posts (examples here and here and here and here), the story of Blakely in Ohio is very serious.

WASHINGTON: The report from Blakely's home state is that a group a committee of prosecutors and criminal defense lawyers have a proposal in the works for the Washington legislature when it reconvenes next month which would involve the "Blakely-ization" of Washington's guideline scheme by providing for aggravating facts, other than the fact of a prior conviction, to be placed before the jury.

Interesting murder sentencing case law

Thanks to the blogsphere, I can spotlight a few interesting and noteworthy appellate rulings in murder cases:

• From CrimProf Blog comes this post discussing the decision of the Missouri Supreme Court in Hutchinson v. Missouri in which the court reverses a death sentence for Brandon Hutchinson based on ineffective assistance of counsel in the penalty phase.  But, what is getting the blogsphere's attention in this case (see TalkLeft and Instapundit) is that Hutchinson's co-defendant Freddy Lopez received 10 years in part of a plea deal that resulted from a $230,000 payment from a killer's family to the victim's family.  I hope to be able to do some commentary on this very interesting case later tonight.

• From How Appealing at this post is a report on a habeas decision from the Ninth Circuit.  Here is how Howard describes the decision in Lambert v. Blodgett:

A unanimous three-judge panel consisting of judges regarded as part of the Ninth Circuit's conservative wing, today reversed the grant of habeas corpus that a federal district court had issued in favor of a fifteen-year-old who had pleaded guilty in state court to aggravated first-degree murder, an offense that carried a mandatory sentence of life in prison without the possibility of parole.

The state of Blakely in various states

This morning's WSJ article (detailed here) provides a great review of the state of Blakely in the federal system, but I find the state of Blakely in the states an even more interesting and dynamic story.  Indeed, as detailed in some of my recent posts on the topic, the state Blakely story is too fast-moving and dynamic for me to track comprehensively.  (More background here and here and here.)

Fortunately, there other folks covering the Blakely story in particular states, and I can just report and link to their efforts.  Today I have helpful reports on Indiana, North Carolina and Texas.

INDIANA: As noted before here, Indiana's Blakely story is being well-covered by state lawyers there, and now I see that Michael Ausbrook at INCourts has this post which reviews all the Indiana cases that mention Blakely and their current status.

NORTH CAROLINA: This newpaper article provides a very effective review of the story of Blakely in North Carolina.  The article also details that the a subcommittee of the NC Sentencing and Policy Advisory Commission "has recommended that aggravating factors and some issues related to prior records be submitted to a jury to determine if they exist."

TEXAS: With great thanks to Scott Henson at Grits for Breakfast, I can provide a link to this terrific research brief from the Texas Senate Research Center reviewing the story of Blakely in Texas.  Here is the astute conclusion of this effective report:

Because Texas does not have the sort of determinate sentencing guidelines used by the State of Washington or the federal government, Blakely will not significantly impact Texas law. However, there are specific statutes in the Code of Criminal Procedure that authorize a judge to make an affirmative finding of fact that may be used to increase the defendant’s punishment, but the statutes are not clear whether this affirmative finding must be based on facts proved beyond a reasonable doubt to the trier of fact. These and any similar statutes could be subject to challenge under Blakely.

The WSJ on the federal Blakely mess

In my Sentencing Year in Review, I praised the media's recent coverage of sentencing issues, and the Fourth Estate is doing me especially proud this week.  To go with a powerful NY Times editorial and great Wash. Post pardon coverage, this morning brings another great article from Laurie Cohen at the Wall Street Journal.  (A collection of the WSJ articles covering the federal sentencing system could now make a great sentencing reader, with just some of the prior great articles here and here and here and here.)

Today's front-page WSJ piece (available here by subscription) is entitled "Double Standard -- In Wake of Ruling, Disarray Plagues Federal Sentencing" and documents the nationwide mess made by Blakely:

Disarray has enveloped the federal court system for the past six months since a Supreme Court ruling hinted that the guidelines governing federal sentences may be unconstitutional. As federal judges wait, and wait some more, for the divided high court to deliver a final verdict, they have come up with a myriad of ways to sentence defendants.

The article does an especially effective job detailing the Blakely story from a variety of angles by quoting many federal judges and litigants from various parts of the country.  Here's one example of the insightful anecdotes in the piece:

In Sioux Falls, S.D., Chief Judge Lawrence L. Piersol says he is asking juries to find drug quantities and that is "simple for them." But financial fraud cases are another matter. Judge John C. Coughenour, chief judge of the Western District of Washington, yesterday completed an eight-week trial involving 87 counts of tax evasion and other fraud. The jurors came back with guilty verdicts against six defendants. "It's not going to be a simple task for a jury to conclude how much the tax loss was," says Judge Coughenour.

The article also provides thoughtful review of the different views of Blakely waivers, and it has a cool looking map detailing the current circuit variations on what Blakely means for the federal sentencing system while we "wait, and wait some more, for the divided high court to deliver a final verdict."  (I have detailed the particulars of the circuit variation in this post.) 

The article not only details the mess that is federal sentencing now, but it highlights for me how hard the "clean-up" is going to be for lower federal courts next year no matter what the Supreme Court says in Booker and Fanfan.  And I am already looking forward to the WSJ's coverage of that future story.

The Washington Post on Bush's pardons

The Washington Post this morning is all over the pardon story, and the criticism of Bush's stingy use of his pardon power, with this article and this effective editorial.  The article, which is already been spotlighted this morning by the blogs TalkLeft and De Novo, effectively covers some of the history of presidential pardons and reiterates of the criticisms generated in the blogsphere last week (see list of posts below).

The editorial, titled "Model for Mr. Bush," does a great job spotlighting that, unlike the President, some republican governors have been willing to use their executive sentencing aggressively.  Here's the opening paragraph:

For a self-styled compassionate conservative, President Bush has been stingy with mercy. Last week, he granted four pardons, all to people sentenced to probation many years ago. The latest round of pardons brings Mr. Bush's first-term total to only 29, along with two sentence commutations. This is dramatically fewer clemency actions than any recent president has taken, barely 5 percent of those granted by President Jimmy Carter, for example. It is also dramatically less mercy than displayed by two governors of the president's party, who have reinvigorated their offices' power to give second chances: Robert L. Ehrlich Jr. of Maryland and Arnold Schwarzenegger of California.

For prior posts on the pardon issue, see:

• Bush's stingy pardon practice
• More pardon buzz
• Media criticism of Bush's pardon practice

The politics of sentencing reform

Monday's New York Times had this powerful editorial by Brent Staples which, in addition to assailing the harms done by harsh mandatory sentencing laws, details some of the often overlooked political forces which impede reform.  Here's an excerpt:

The business of building and running the jailhouse has become a mammoth industry with powerful constituencies that favor the status quo. Prison-based money and political power have distorted the legislative landscape in ways that will be difficult to undo.

More holiday season state Blakely rulings

As noted before, with all the major Blakely rulings early this month (some details here), I thought the holiday weeks might be quiet on the Blakely front.  But, as detailed here and here, just the first few days last week brought more than a dozen state and federal appellate cases dealing with Blakely issues. 

In addition to the previously noted rulings here, a few more state Blakely decisions from last week recently came on-line with Patrick v. State, 2004 WL 2965848 (Ind. App. Dec. 23, 2004) (which is discussed at length here by Michael Ausbrook at INCourts) and also State v. Whatley, 2004 WL 2964710 (Tenn. Crim. App. Dec. 22, 2004).  And today from the west coast today came State v. Clarke, 2004 WL 2980283 (Wash. App. Div. 1, Dec. 27, 2004) and People v. Brooks, 2004 WL 2980298 (Cal. App. 2 Dist., Dec. 27, 2004)

Noteworthy (and unconstitutional?) sex offender collateral consequence

In conjunction with a recent Ohio conference on "Collateral Sanctions in Theory and Practice,"  I have blogged a bit here on the array of collateral legal sanctions which flow from criminal convictions and their impact on offender reentry. (For the full story on this important issue, the folks at the Sentencing Project have the goods here.)  But, thanks to Jonathan Soglin at Criminal Appeal, I see that California has come up with a noteworthy (and possibly unconstitutional) new restriction on sex offenders.

As thoroughly detailed in Jonathan's thoughtful post here, a couple weeks ago, California's Attorney General Bill Lockyer announced the unveiling of the Megan's Law sex offender locator site.  This site, which is quite user-friendly and provides access to information on more than 63,000 persons required to register in California as sex offenders, is itself noteworthy.  But particularly catching my attention is Jonathan's report that the California law which led to the creation of this resource (AB 488) also includes a provision making it a crime for registered sex offenders to enter the site.  Here's the text of Cal. Penal Code § 290.46(i), which I am inclined to call a web-surfing prohibition:

(i) Any person who is required to register [as a sex offender] who enters the Web site is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.

Jonathan's post details some of the illogic and unfairness of this web-surfing prohibition, and I share his instinct that there may be constitutional problems as well as policy concerns with barring sex offenders from accessing a website which provides information about them.

On this interesting constitutional issue, I would especially like to hear from legal mavens like Profs Orin Kerr or Eugene Volokh at The Volokh Consiparacy or Prof. Larry Lessig.  My first question is whether this law breaks new ground simply by making it a crime for certain people to access a publically-available website.  (I am way outside my field of expertise here, since all I know about computer crimes is that you can get a pretty serious sentence for hacking.)  I can imagine a number of ways to challenge such a law, but I suspect there is already some relevant cyber-jurisprudence to inform this issue.

At a broader policy level, both the sex offender website and this questionable California law reflects the pariah status of sex offenders in society today.  I have spotlighted this issue and related sentencing matters in a few prior posts:

• Intriguing report about sex offenders
• Sex offender sentencing

Sentencing year in review

With Christmas in the books, we now get all the Year in Review and Top Ten lists reflecting on the year about to be completed.  Never one to shy away from fads, I will here present my own Top Ten list of sentencing developments for 2004 (along with one "non-development"). 

I will count down from 10 to 1, though everyone who frequents this blog knows what #1 is going to be.  I encourage readers to use the comments to spotlight important events I may have overlooked and to otherwise dicker with my list.

2004 Sentencing Non-Development

Lack of serious reforms to mandatory sentencing. Despite broad academic and judicial criticisms of mandatory sentencing provisions and recent state movements away from mandatories, the absence of reform was the bigger story in this arena this year.  Though initially favored by the electorate, California voters rejected a proposition to limit the reach of the state's Three Strikes Law (background here and here); though federal District Judge Paul Cassell hinted about a major ruling in the Angelos case, he ultimately upheld the constitutionality of a severe mandatory federal sentence; though New York reformed its harsh Rockefeller drug laws, the limits of the changes was noted and lamented by those working for reform.  And, of course, everyone is fearful, perhaps for good reason, that Congress will respond to Blakely/Booker by enacting a host of mandatory minimum sentencing provisions.

Top Ten 2004 Sentencing Developments

10. Remarkable rulings by federal district courts on unconstitutionality of the federal sentencing guidelines.  From Judge Young's remarkable and foreshadowing pre-Blakely Green decision, to the immediate post-Blakely rulings of Judge Cassell in Croxford and Judge Goodwin in Shamblin, to Judge Panner's conclusion in Detwiler that the Feeney Amendment renders the federal system structurally unconstitutional, federal district judges impressively advanced and framed the legal debate over the federal guidelines' constitutionality.

9. Celebrity sentencings. Though the cases were not high-profile for legal reasons, the capital sentencing of Scott Peterson, the prison time given to and now being served by Martha Stewart, the plea deals entered by former Governor John Rowland and football star Jamal Lewis, and the Blakely-ized trial of Enron defendants provided remarkable and valuable windows into the law and policy of capital and non-capital sentencing.

8. Effective and powerful sentencing work by public policy groups. The ABA's release of its Kennedy Commission report and the VERA Institute's state Blakely analyses (here and here) are just the most tangible examples of all the great and important sentencing work being done by a range of public policy and public interest groups.  And the work of the ABA and VERA and other groups — like the Death Penalty Information Center, The Sentencing Project, Families Against Mandatory Minimums, The Constitution Project, Watching Justice, American Law Institute — not only influenced sentencing law and policy in 2004, but also will have an impact (I hope) on 2005 developments.

7. Remarkable rulings by state courts on unconstitutionality of state death penalty procedures.  Kansas and New York, which in the mid-1990s enacted new death penalty laws, both had their capital sentencing procedures declared unconstitutional by their states' highest courts (highlights here).  In addition to perhaps reflecting broader capital trends in 2004 (see item #2), these developments should set up interesting 2005 policy debates over the need for the death penalty (you can see the start of the debate here and here).

6. Effective and powerful media coverage of sentencing stories.  Though high-profile cases still received the most (excessive) attention, the Fourth Estate did important and influential work on a range of sentencing law and policy issues.  On topics ranging from Blakely to the death penalty to truth in sentencng, I was consistently impressed (despite the ocassional error) by the reporting and analysis of sentencing stories from big outlets like the Wall Street Journal (examples here and here) and the New York Times (example here) and from little papers nationwide (examples from just this week are here and here).

5. The US Supreme Court's death penalty actions (and activism).  Though every year the Supreme Court has a number of capital cases, the Court's rigorous review and involvement in death cases this year rightly garnered lots of attention.  And with 2005 to include a decision in Roper on the constitutionality of executing juvenile offenders (background here and here) and arguments in Medellin concerning the rights of foreign nationals on death row (background here), this story line is likely to continue to grow in the months ahead.

4. The federal system's severe reaction to Blakely. Despite the Supreme Court's (weak) effort in a footnote to keep Blakely from being a federal sentencing story, no jurisdiction was more impacted by the Blakely earthquake.  And watching the range of reactions to Blakely from all the actors and institutions in the federal system — from Congress, SCOTUS, the Justice Department, the USSC, district and circuit courts, practitioners and academics — has made for amazing drama for six months (and counting).  Just thinking about all that has already transpired after a state ruling (Blakely) makes it hard to fully fathom what we will see after Booker and Fanfan finally get decided.

3. The state systems' sensible reaction to Blakely. Despite the profound impact Blakely could have on so many state sentencing laws, the states have typically taken a thoughtful and cautious approach to dealing with the fallout from the Blakely earthquake.  And watching the reactions to Blakely from state actors and institutions — from legislatures, courts, attorneys generals, practitioners and academics — has made for an amazing contrast with the (perhaps overheated) drama in the federal system.  But how the states will be able to efficiently and effectively sort out all the uncertainties Blakely has created (especially since Booker and Fanfan may not provide much help) is also hard to fully fathom.

2. The decline of death(?).  Though the Peterson verdict might suggest otherwise, all other evidence in 2004 suggests the death penalty is dying a slow death.  December marks the first execution-free month in more than a decade, and reductions in the number of death sentences and in the number of executions provide more statistical evidence to suggest the death penalty is on the decline in the United States.  (This DPIC report covers this story from all the angles.)

1.  Blakely v. Washington.  See this blog (not to mention items 10, 8, 6, 4, 3 above). 'Nuff said.