Sentencing Law and Policy

Returning to Ohio

Weather permitting, I'll be heading back to Ohio this weekend.  But I see from the papers that Ohio sentencing developments have not slowed down in my absence.  This article reviews the state of Blakely in Ohio (background here and here and here), and it suggests that Ohio's Attorney General is now advocating a legislative fix for possible Blakely problems in Ohio.  And this article discusses an important new ruling from an Ohio appellate court concerning the application of a change in Ohio's parole procedures.  When I get back to Ohio and my regular computer facilities, I hope to be able to return to active blogging about these and other developments in Ohio and beyond.

In like a lion, out like a lamb?

As I predicted here, with the Supreme Court's decisions in Roper and Shepard and other major lower court rulings, March proved to be an exciting sentencing month (especially the first few weeks).  Some of the whirlwind events from earlier this month are linked here and here and here and here, and below I link some of the month's concluding developments:

BOOKER CIRCUIT COURT DEVELOPMENTS AND COMMENTARY

• 4th Circuit considers alternative sentences
• 8th Circuit affirms above-range sentence
• A very busy Booker day in the circuits
• The devil is in the plain error detail

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• Yesterday's SCOTUS action
• Supreme Court indirectly considers supermax prison
• Reports on the Medellin argument
• SCOTUS grants cert. in a capital case and has still more GVRs

OTHER BOOKER AND BLAKELY DEVELOPMENTS AND COMMENTARY

• An overview of the post-Booker world
• State debates over whether to Blakely-ize or Booker-ize
• Assessing high profile sentences post-Booker

OTHER SENTENCING NEWS AND COMMENTARY

• The intersection of sex offenses and juvenile offenders
• 25 years too long for failure to register
• Colorado Supreme Court troubled by mixing sentencing and the Bible

4th Circuit considers alternative sentences

Last summer, in the wake of Blakely, the Fourth and Sixth Circuits held Blakely inapplicable to the federal guidelines but also "recommended" to district courts that they announce an alternative sentence treating the guidelines as advisory "in the interest of judicial economy."  As detailed in posts here and here and here, I thought this recommendation was curious and questionable (as did District Judge Goodwin as discussed here).  But, now that Booker has in fact made the guidelines advisory, this recommendation looks wiser now than it did before.

Interestingly, today the Fourth Circuit issued two unpublished decisions in cases in which the district court did announce alternative sentences in the wake of Blakely:

• In US v. Anderson, No. 04-4621 (4th Cir. Mar. 31, 2005) (available here), the sentence is affirmed; the Fourth Circuit asserts "that because the alternative sentence the district court pronounced in case the federal sentencing guidelines were invalidated was identical to the mandatory sentence imposed under the federal sentencing guidelines as they existed at that time, any error resulting from the sentence imposed by the district court was harmless."

• In US v. Scott, No. 04-5074 (4th Cir. Mar. 31, 2005) (available here), the sentence is remanded; the Fourth Circuit explains that the defendant sought an expedited remand (which the government did not oppose) to allow the district court "to implement the thirty-month alternative sentence announced by the court" (which was 16 months less than the mandatory guidelines sentence which was imposed before Booker).

8th Circuit affirms above-range sentence

In this post last week, I commented on above-guideline-range sentences imposed post-Booker, and in previous posts here and here I questioned whether due process/ex post facto principles permit a post-Booker sentence increase above the applicable guidelines range based on pre-Booker conduct.  In an unpublished decision Thursday in US v. Pablo-Lepe, No. 04-2837 (8th Cir. Mar. 31, 2005) (available here), the 8th Circuit affirmed an above-range sentence.

The 8th Circuit in Pablo-Lepe considered a sentence imposed before Booker, though the district court apparently had decided in the wake of Blakely to declare the guidelines advisory and in this case "chose to impose a higher sentence" than the guidelines.  In a three-paragraph per curiam opinion, the 8th Circuit affirms, stating simply that the sentence imposed "was neither unguided nor unreasonable." 

It is unclear whether due process/ex post facto issues were even raised in Pablo-Lepe, and these issues clearly were not addressed by the 8th Circuit's cursory per curiam opinion.  Nevertheless, I believe Pablo-Lepe stands as the first case in which an above-range sentence imposed under advisory guidelines has been affirmed.

A very busy Booker day in the circuits

I spent the day in the First Circuit discussing Blakely issues and death penalty issues as part of a show put together by the Massachusetts School of Law's "A Question of Law" program.  But the Booker action was taking place in a bunch of other circuits today, with at least six circuits issuing sentencing opinions that discuss or note Booker.  Interesting unpublished decisions from the 4th and 8th Circuits will be discussed in another post, but first I want to chronicle yet again the impact of the circuit's divergent approach to plain error issues.

I counted today a total of six remands on Booker grounds from the 2d, 3d and 4th Circuits (all of which are largely pro forma).  But from the 5th Circuit we get a sentence affirmance in US v. Bringier, No. 04-30089 (5th Cir. Mar. 31, 2005) (available here), in which the court works hard to avoid having to remand for resentencing.  In Bringier, the Fifth Circuit concludes, on debatable facts, that the defendant did not preserve a Sixth Amendment claim below and that he did not show that the "result would likely have been different had the judge been sentencing under the post-Booker advisory regime rather than the pre-Booker mandatory regime." 

The Bringier decision, when compared to the First Circuit's recent Heldeman ruling (discussed here), once again spotlights that even those circuits applying the toughest plain error standard are applying this standard in inconsistent ways.

Yesterday's SCOTUS action

As previously discussed here, the Supreme Court yesterday considered Wilkinson v. Austin concerning what hearing process is required before an inmate can be transferred to a "supermax" facility.  Reports on the argument are provided by this AP article and this Pittsburgh Post-Gazette article.

The Court also issued an opinion in a habeas case, Rhines v. Weber, concerning the consideration of "mixed" habeas corpus petitions (that is, a petition containing both exhausted claims and unexhausted claims).  The Second Circuit Blog has a localized discussion of Rhines here.

And speaking of SCOTUS, I have the honor this morning of sharing a studio with Lyle Denniston who reports on the Court for SCOTUSblog.  Lyle and I will be discussing Blakely issues and death penalty issues as part of a show put together by the The Massachusetts School of Law's "A Question of Law" program.

An overview of post-Booker world

My on-line searches this evening reveal that we now already have, in less than 3 months' time, over 500 federal cases discussing or mentioning Booker.  Gosh knows I cannot keep up with all this action (especially this week being on the road).  Fortunately, others are providing helpful overviews: Caryll Alpert over at the Sixth Circuit Blog "surveys the key published decisions issued by the Sixth Circuit to date" on Booker here; and Frances Pratt, Research and Writing Attorney in the Office of the Federal Public Defender in Alexandria, Virginia, has updated again her extended outline of post-Booker decisions.  This latest version, which now runs 51 pages, is current through March 27 and is available at this link.

Contrasting affirmances of immigration offense sentences

Though I am no longer trying to track and report all the Booker circuit rulings, two contrasting affirmances of sentences in immigration cases from the Eleventh and Eighth Circuits caught my eye tonight.  The Eleventh Circuit in its published opinion in US v. Camacho-Ibarquen, No. 04-11155 (11th Cir. Mar. 30, 2005) (available here), carefully explores (and rejects) the defendant's arguments against application of 16-level guideline enhancement, and it thoughtfully discusses Booker and Shepard along the way.  But, in contrast, the Eighth Circuit in its unpublished opinion in US v. Villanueva-Martinez, No. 04-2925 (8th Cir. Mar. 30, 2005) (available here), summarily rejects the defendant's arguments against the same enhancement, and it does not confront the way the Booker remedy might impact the issues on appeal.

Lots of sentencing news from Connecticut

Aided by the terrific coverage from Kirby's Reports and a Public Defender, I see there are interesting sentencing developments coming from Connecticut.  With the execution of serial killer Michael Ross slated for May, the state legislature has been considering a bill to abolish the death penalty.  But today the Connecticut House today considered and rejected the bill on a vote of 89-60 (details here and here).  Meanwhile, still under consideration is a bill to equalize the minimum penalties for crack and powder cocaine offenses under state law (details here and here).

The intersection of sex offenses and juvenile offenders

Thanks to TalkLeft's post here, I see this interesting abc-news article about a young man who committed a sex offense when 13 years old now forced at age 18 to be placed on a sex-offender registry.  The article thoughtfully explores the challenging issues raised by the intersection of sex offenses and juvenile offenders. 

The case noted in the article presents another example — along with the recent California case noted here overturning a three-strikes sentence of 25-years-to-life for the "technical violation" of a sex offender failing to update his registration — of the extensive reach and impact of sex offender registration laws.  Also, the article perhaps implicates ideas I developed here in the wake of the Supreme Court's juvenile death-penalty decision in Roper about whether the High Court's statements in Roper about the "mitigating force of youth" should come to bear in some non-capital sentencing settings.

The devil is in the plain error detail

I have not noted much of the Booker circuit court plain-error activity this week, in part because I'm on the road with limited on-line time and in part because the story is getting monotonous.  In recent days, the three-way circuit split has produced a number of unremarkable remands in those circuits not applying the toughest plain error standard (though the remands are for reconsideration in the Second and Seventh Circuit, and for resentencing in the Third and Sixth).

But decisions earlier this week in circuits applying the toughest plain error standard highlight that the three-way doctrinal split itself does not fully capture all the plain-error variations.  Proving the devil is in the detail, the Fifth Circuit affirmed a sentence in US v. McCalley, No. 04-10635 (5th Cir. Mar. 28, 2005) (available here), a case with Booker and Shepard issues, with just the cursory assertion that the defendant failed to "demonstrate a reasonable probability that the district court would have imposed a lesser sentence if it had been aware of its discretion to do so."  But, in contrast, the First Circuit's decision in US v. Heldeman, No. 04-1915 (1st Cir. Mar. 29, 2005) (available here), shows that court being more "generous" in its approach to some "pipeline" issues.

The First Circuit's decision in Heldeman is an interesting read for many reasons: the case involves steroids and bodybuilders, the opinion includes an extended and interesting forfeiture analysis, and the decision ends with a notable Booker discussion.  (White Collar Crime Blog discusses the case here, and Appellate Law & Practice discusses it here.)  Here is the Booker discussion that has everyone's attention:

Guided by traditional plain error doctrine and Justice Breyer's specific reference to it in Booker, this court has adhered to the analysis mandated by Olano where dealing with unpreserved errors--although we have been generous in other respects, given the peculiarities of the situation created by Booker.  The court has offered to treat almost any colorable claim in the district court as preserving the Booker issue and avoiding plain error requirements. See Antonakopoulos, 399 F.3d at 76.  Even where plain error is required, we have recognized that a district judge may well not have expressed his or her reservations because the guidelines made them hopeless, and so invited proffers by the defendant as to what the defendant might have said if the guidelines had been advisory at the time.

Consonantly, we are inclined not to be overly demanding as to proof of probability where, either in the existing record or by plausible proffer, there is reasonable indication that the district judge might well have reached a different result under advisory guidelines.  After all, it will be easy enough for the district judge on remand to say no with a minimum expenditure of effort if the sentence imposed under the pre-Booker guidelines regime is also the one that the judge would have imposed under the more relaxed post-Booker framework. This opinion has been circulated to the other active members of the court.

Assessing high profile sentences post-Booker

This morning's papers have a couple articles examing a few high-profile government-corruption sentences.  This article in the New York Times compares (and raises disparity concerns) about the recent federal sentences handed out to John Rowland, the former governor of Connecticut, and Robert Janiszewski, the former Hudson County executive in New Jersey.   And this article from Wisconsin reports on a Seventh Circuit remand in another fraud case involving a government official in Milwaukee.  Both pieces suggest that government-corruption sentences might be an especially interesting and important category of cases to follow closely in the post-Booker world.

25 years too long for failure to register

As first noted by Appellate Law & Practice here, a California intermediate appellate court in People v. Carmony, No. C038802 (Cal. App. 3d Dist. Mar. 25, 2005) (available here) has found unconstitutional a three-strikes sentence of 25-years-to-life for the "technical violation" of a sex offender failing to update his registration within 5 days of his birthday.  The Carmony court called the defendant's failure to re-register "completely harmless and no worse than a breach of an overtime parking ordinance," and it concluded that this application of three strikes to the sex offender registration law violates the federal Eighth Amendment prohibition on "cruel and unusual punishments," as well as California's constitutional prohibition on "cruel or unusual punishment."

The extended Carmony opinion provides a useful primer on both California's three-strikes law and modern Eighth Amendment analysis.  It also brings to mind this recent post about the development of state constitutional law, and post here and here about sex offender sentencing.  Of course, this is the type of non-violent case that, I believe, would no longer have been subject to California's three-strikes law if last year's amendment to the law had been approved by votes in Proposition 66 (see discussion here and here).

Lots of interesting reading 'round the blogsphere

Returning from a day off-line, I see a number of very interesting (and long) posts on a broad range of sentencing and corrections issues around the blogsphere.  I would like to substantively engage with all the items noted below, but limited time an energy means I only have a chance to provide links and brief references.  So here goes:

• Grits for Breakfast has here another in its great series of posts on the incarceration crisis in Texas, with the focus now on private prisons.

• The ASC Blog has here a fascinating post from Professor Jonathan Simon dynamically discussing the intersection of mass incarceration, race, and democracy.

• INCourts here and here discusses the developing aftermath in Indiana from the state's big Blakely decision in Smylie (basics here, commentary here and here).

Supreme Court indirectly considers supermax prison

SCOTUSblog has a helpful account here of Wilkinson v. Austin, the case to be argued in the Supreme Court tomorrow which concerns what sort of hearing process is required before an inmate can be transferred to a "supermax" facility.  Additional background on this case, with some helpful links, is available here from the Medill School of Journalism Supreme Court site.

I believe Austin presents the first opportunity for the Supreme Court to examine the most extreme form of imprisonment that our society has devised, although the legal issue in the case does not have the Court directly confronting the nature and conditions of supermax confinement.  Nevertheless, a number of amicus briefs have been filed which highlight for the Court the extreme nature of supermax confinement, and it seems possible that the Court might be influenced by these realities.

A website with resources on supermax prison facilities, entitled Supermaxed and linked here, highlights many of the common criticisms of this form of imprisonment.  A Human Rights Watch paper from February 2000, available here, provides additional background on supermax facilities.

UPDATE:  This AP story provides additional background on Austin.

State debates over whether to Blakely-ize or Booker-ize

Among the many notable facets of the Booker decision was that provided little help to state courts struggling to interpret and give effect to Blakely.  But, especially as states are working on fixing their sentencing systems to deal with Blakely issues, Booker is having an impact on state debates in courts and legislatures and commissions.  Specifically, not only has Booker made clear that advisory guidelines are constitutional, but it seems to have given advisory guidelines a good name.

The impact of Booker can be seen in this editorial from Washington, which urges the state legislature to reject a bill that apparently provides for jury fact-finding of aggravating factors (Blakely-izing), and advocates instead the adoption of an advisory guidelines system (Booker-izing).  Similarly, INCourts reports here (building on a report from the Indiana Law Blog here) that "there has been an amendment to [Indiana's] Senate Bill 96, the General Assembly's attempt to deal with Blakely, that would appear to Booker-ize Indiana's sentencing statutes."  Before the amendment, Indiana's legislative fix was headed toward Blakely-izing (which is the remedy now in place because it was adopted by the Indiana Supreme Court in its big Smylie decision earlier this month (basics here, commentary here and here)).

As previously reported, Tennessee is headed toward a Booker approach in its developing Blakely fix (details here), and Alaska has already passed legislation that involves a little bit of Booker-izing and a little bit of Blakely-izing of its sentencing system (details here).

Colorado Supreme Court troubled by mixing sentencing and the Bible

As detailed in this AP article, the Colorado Supreme Court on Monday, in a divided 3-2 ruling, affirmed a lower appellate court's determination that a death sentence should be overturned because jurors consulted the Bible during deliberations in the penalty phase.  The lengthy decision in People v. Harlan, No. 03SA173 (Colo. Mar 28, 2005), is available here.  The New York Times has this thoughtful article about the decision, and TalkLeft has a post and interesting comments on the case here.

This ruling in Harlan stands in interesting contrast to a decision a few months ago from the Sixth Circuit in Arnett v. Jackson, No. 03-4375 (6th Cir. Jan. 6, 2005). In Arnett, which I first discussed in this post, a divided panel reversed a grant of habeas corpus for a state prisoner in a child rape case, concluding that the district court should not have granted habeas due to the state trial judge's references to the Bible during petitioner's sentencing hearing. 

Below I provide a few links to some other coverage of the intersection of sentencing issues and religion (which is, in my view, a fascinating and under-examined topic):

• Is there a "new right" on criminal sentencing issues?
• Sentencing and Religion
• Having faith in prisons
• Sister Prejean powerful perspective

Reports on the Medellin argument

The Medellin case in the Supreme Court is turning out to be less about the death penalty and more about separation of powers, federalism and what might be called super-federalism (i.e., US obligations with respect to international law).  Nevertheless, it still is making for great drama and theater, as documented by this post about today’s oral argument from SCOTUSblog and this AP report.  In addition, Emily Bazelon has this discussion of the case at Slate and Tony Mauro provides this report at law.com.

Eighth Circuit re-issues Mooney

Back in those hazy days of the summer of Blakely, the Eighth Circuit used the case of US v. Mooney to first address Blakely's applicability to the federal system (see discussion here).  That decision was vacated by the full Court's decision to rehear Mooney en banc (details here), though I believe that en banc rehearing never happened because of the coming Booker decision.

Today, with Booker now defining the new federal sentencing universe, the Eighth Circuit re-issued its Mooney opinion, which can be accessed here, and the new Mooney includes some interesting discussion of loss calculations and Booker issues.  Here's a notable passage (with cites omitted), which manages to duck the plain error issue (since it is still undecided in the Eighth Circuit and being considered en banc):

Sentencing remains a court function under Booker.  Judicial fact finding is permitted as long as it is understood that the guidelines are not mandatory. Although the court must consult the guidelines, it is not obligated to sentence according to them, and a sentence imposed in the exercise of discretion will be upheld if reasonable. Reasonableness may be demonstrated by a court's consideration of the guidelines, relevant conduct, and statutory sentencing factors.

Under the remedial approach set out by Justice Breyer for cases in which there is an apparent Sixth Amendment violation, the first question in applying "ordinary prudential doctrines" is whether the defendant raised the issue below.  It is not clear from the record before us whether Mooney asked the district court at trial to submit the issue of gain to the jury or whether he raised a constitutional issue at his sentencing. We have reviewed the record and have not found any indication that such an argument was made, but the district court is in a better position to determine what happened at trial. Accordingly, Mooney's sentence should be remanded to the district court for further proceedings in light of Booker.

In summary, we conclude that Mooney is not entitled to prevail on any of his arguments for judgment of acquittal or new trial and we affirm his conviction, but we remand his sentence to the district court for further proceedings consistent with Booker and with the power to modify the sentence if warranted.

SCOTUS grants cert. in a capital case and has still more GVRs

As detailed in this post from SCOTUSblog, the Supreme Court this morning granted cert. in a capital case from California which concerns, inter alia, consideration of harmless error review, and the Court also issued another two dozen Booker-inspired GVRs.  All the details on today's SCOTUS work can be found at the order list at this link, and details about the 500+ prior SCOTUS GVRs can be found at this post.

A quick sentencing tour around the blogsphere

An old AOL account and a calm morning provides me with a chance to spotlight a few notable sentencing items around the blogsphere:

• SCOTUSblog here has the details on tomorrow's Supreme Court argument in Medellin v. Dretke, which "involves a little bit of everything –- capital habeas proceedings, the International Court of Justice, treaty enforceability, executive authority, and even an overtone of federalism."

• White Collar Crime Prof Blog reports here on a 30-year sentence in a federal fraud case, which is another post-Booker above-range sentence and could well be "the longest prison term for a non-recidivist fraud conviction."

• Crim Prof Blog here links to this fascinating article about death penalty developments in China, where there are still an estimated 10,000 executions per year.