Sentencing Law and Policy

May day Booker resource updates

May not only brings flowers, but also updates of two of the most helpful sentencing resources developed by federal defense attorneys:

1.  On the Blakely/Booker page of the website maintained by the Office of Defender Services Training Branch of the Administrative Office of the U.S. Courts you can find Fran Pratt's latest updated outline of post-Booker decisions.  This terrific outline, which is accessible at this link, now runs over 100 pages and is current through decisions of May 2.

2. I have received from Michael Levine, who regularly updated his pre-Booker mega-resource entitled "88 Easy Departures," the latest iteration of his post-Booker version of this document with important advice and strategies for defense counsel.  Entitled now "108 Easy Mitigating Factors" (and available for download below), this document has been updated through May 1 with topical coverage of "cases granting, affirming, or suggesting mitigating factors." 

Download 108_easy_mitigating_factors_may_1_2005.doc

Intriguing federal sentencing stories

A number of judges schedule sentencings for Friday, and this perhaps explains why there are so many interesting reports of interesting federal cases in the papers this morning.  Notably, in all of the cases linked below, it appears the sentence imposed was within the guidelines or higher:

• This story from New York reports on the one-year sentence imposed on a radio personally convicted of tax evasion after he bragged on Howard Stern's show that he hadn't filed taxes in recent years.

• This story from Kansas City reports that a father, who has kidnapped his own kids and has refused to disclose their whereabouts, was sentenced to 10 years on a federal felon-in-possession charge (state kidnaping charges are still pending).

• This story from Pittsburgh report on a post-Booker resentencing in which a sex offender received the same long sentence the second time around.

• This story from Kentucky reports that a 64-year-old bank robber did not persuade his federal sentencing judge that his age and poor physical health should result in a reduced sentence.

• This story from North Carolina report on a long sentence imposed on a participant in a massive marijuana smuggling operation.

Report of a Judge Cassell departure for family circumstances

I am now wondering if there was some sort of anti-guideline karma in the air yesterday (which happened to be the four-month anniversary of Booker).  As detailed in this post, yesterday District Judge Richard Kopf, one of the most vocal (and engaging) post-Booker defenders of within-guideline sentences, departed down from the guideline range on the basis of compelling family circumstances.  And now I see from this news story that yesterday District Judge Paul Cassell, another vocal (and engaging) post-Booker defender of within-guideline sentences, also granted a downward departure on the basis of family circumstances when sentencing Raul Enrique Perez-Chavez.

I have not yet found a written opinion in Perez-Chavez, but the newspaper account of the sentencing indicates not only that Judge Cassell departed on the basis of family circumstances, but also that he "was troubled that some defendants in Utah receive longer sentences than those charged with identical crimes in states with the fast-track program, which is unavailable in Utah."  (This sort of concern, one may recall, led Wisconsin District Judge Adelman in Galvez-Barrios (details here) to grant a Booker variance.)  Here are highlights from the story about the sentencing of Perez-Chavez:

Judge Paul Cassell meted out an eight-month sentence — less than half of the minimum term recommended under federal sentencing guidelines — because Perez-Chavez re-entered the United States to help his wife, who had just given birth after a high-risk pregnancy and who was caring for her terminally ill grandfather.... Despite [expressing] concerns [about fast-track disparity], Cassell denied Perez-Chavez's request for a fast-track reduction.

UPDATE: I now have on good authority that we are likely to see a written opinion in Perez-Chavez will early next week.  Considering all his fascinating post-Booker work to date, I am looking forward to seeing what Judge Cassell has to say on all these issues.

Important Booker points from the ever-busy Eighth Circuit

The Eighth Circuit today is keeping a tight hold on the position of post-Booker decision pace-setter (its busy ways have been recently detailed here and here and here and here): I count on this opinion page four rulings addressing Booker issues (as well as a big and interesting death penalty habeas ruling which I may discuss in a future post).  All of the opinions today affirm sentences imposed pre-Booker, mostly on plain error grounds, and on the surface they seem uneventful.  However, two points in US v. McCulley, No. 04-1998 (8th Cir. May 13, 2005) (available here) seem worthy of attention.

First, on the issue of what qualifies as a sufficent admission by a defendant for Blakely or Booker purposes, the McCulley court directly states "a fact in the PSR not specifically objected to is admitted for purposes of Booker [and thus] McCully's Sixth Amendment rights were not violated because she admitted the facts supporting the enhancements by failing to object to the PSR."  Though other courts may have already ruled in a similar manner, I cannot remember seeing the point made so bluntly before.  As detailed by the amicus brief filed by the Federal Public Defender in the Northern District of Texas in Booker and Fanfan (discussed here), an argument can be made that SCOTUS precedent does not fully support this conclusion.  And the Third Circuit once noted pre-Booker, as discussed here, that there are "at least four possible interpretations of the language 'facts ... admitted by the defendant.'" 

Second, on the issue of whether and how within guideline sentences should be reviewed post-Booker, footnote 2 in McCulley suggests that even sentences imposed within properly calculated guideline ranges are now fully subject to review for reasonableness using the 3553(a) factors.  The McCulley court in footnote 2 explains that, pre-Booker, the circuit "held that it lacks jurisdiction to review for excessiveness those sentences that are within the applicable guidelines range."  But, citing Booker, the McCulley court decided it should "exercise[] jurisdiction over McCully's [excessiveness] claim in order to review for unreasonableness, pursuant to the factors in 18 U.S.C. § 3553(a)."

Notable developments in Supreme Courts

With the help of the always helpful blogsphere, I see some notable Supreme Court developments on sentencing issues:

• As noted and explained in this post by Michael Ausbrook at INCourts, the Indiana Supreme Court yesterday issued a bunch of per curiam opinions discussing Blakely issues in the wake of its big Smylie decision(basics here, commentary here and here and here).  I hope to comment more of these decisions, all of which can be accessed here, once I get a chance to review them closely.

• As noted and explained in this post by Tom Goldstein at SCOTUSblog, a couple of cases to be watched closely for possible cert. grants next week involve sentencing issues.  One case raises the Booker pipeline issue of whether "a defendant waived a claim of Booker error on appeal by not raising the question in his opening brief."  Another case from Kansas concerns "whether the Constitution permits the imposition of the death penalty when evidence of aggravating and mitigating circumstances is in equipoise, or whether the aggravators must outweigh the mitigating circumstances."

Another potent (and hilarious) opinion from Judge Kopf

In my Sentencing Judges Hall of Fame, US District Judge Richard Kopf has earned a special plaque for consistently writing the most engaging and entertaining sentencing opinions. (Recall his fine and often amusing work in Wanning and in Tabor.)  Judge Kopf has outdone himself with his opinion in US v. Bailey, No. 4:02CR3040 (D. Neb. May 12, 2005), which is available for download below. 

Bailey is Friday's must-read for everyone interested in federal sentencing issues, or for anyone interested in seeing how a well-crafted opinion can deliver drama and humor, as well as astute legal analysis. (I am tempted to declare Bailey a great legal dramedy for the sentencing set.)  To provide just a flavor of Bailey, consider these opening passages:

Most of the time, we should sentence a person without regard to the pain and damage our sentence will inevitably inflict upon his or her children.  The exceptions to this rule are few and far between.  Indeed, when I first skimmed the motion to depart under U.S.S.G. § 5K2.0 in this case, my reaction was quick and visceral: "Are you kidding me?"  The Assistant Federal Public Defender asked me to impose a nonprison sentence on Bailey, a fellow who possessed child pornography, in order to save the defendant's little girl.  No way, I thought, hell will freeze over before that happens.

I next explain how hell froze over. With Booker in mind, I also explain why normal departure theory, rather than the "mix-and-match" approach that I have previously scorned, is capable of dealing with this truly unusual case.

This opening is only one of many highlights in Bailey.  Among the others are: (1) a reference to SNL's Emily Littela in the course of responding to my comments in this post about Judge Kopf's Tabor opinion, (2) a detailed account of departures based on family circumstances, (3) praise for a expert witness because she is "unlike the soft-headed shrinks I sometimes encounter," and (4) a call for the Court of Appeals, which gets "paid the big money," to address "whether Booker nullified § 3553(b)(2)."

In a closing footnote, Bailey also includes a pitch for Congress to have the "mature wisdom to wait ... a reasonable period of time (say three years)" before responding legislatively to Booker.  An alternative course, says Judge Kopf, could be unseemly: "By acting precipitously, Congress reinforces the (unjustified) image of a bunch of blood-starved cave dwellers looking for a fight.  Sometimes one can win by waiting."

Download judge_kopf_bailey_departure_opinion.pdf

Criticisms of the House's passage of gang bill

The House's passage on Wednesday of the anti-gang bill, HR 1279, which includes a number of mandatory minimums, is generating criticism from many quarters.  In this prior post, I noted the Miami Herald's strong editorial against the bill, and now I see that The New Standard has this extended report on the bill spotlighting a number of potent criticisms.  Here's a selection from that report: 

[O]rganizations that monitor the criminal justice system argue that the bill's alarmist rhetoric is more a product of political hype than of an intensifying public safety threat. "We're kind of drumming up a new boogeyman, and that's gangs," said Jason Ziedenberg, executive director of the Justice Policy Institute, a think tank focused on incarceration issues....

Even the most recent Justice Department survey of gang activity, which portrays gang crime as a major national problem, acknowledges, "The estimated number of gang members between 1996 and 2002 decreased 14 percent, and the estimated number of jurisdictions experiencing gang problems decreased 32 percent."

Similarly, FAMM has this report on its website about the bill, which details that a "chorus of ... experts, lawmakers and advocates [contend] that the bill is likely to make problems worse, not better."  Also of interest are the critical remarks of the bill made on the House floor by Republican Representative Bob Inglis of South Carolina:

I think there are three problems with the bill: First, it federalizes State crimes. Second, it spends too much money.  Third, it has mandatory minimums.

I voted for mandatory minimums a number of times in my previous time in Congress, and then I had 6 years out, six years out to talk with people in the community, to talk with judges.  And during that time, I became very uncomfortable with our approach about mandatory minimums. 

We have sentencing guidelines. The idea of those guidelines is to have a coherent system of sentencing, some method of figuring out how heinous one crime is compared to another.  And then Congress comes along and slaps on mandatory minimums on top of that framework, doing violence to the framework of a sentencing guideline system.  I think it is a mistake. 

Like I say, I voted for them in the past. I will not do it again. I am inclined to say, let us have a sentencing guideline system that works.  Let us not, because of some political considerations, rise and go after say crack cocaine as opposed to powdered cocaine and end up with perverse results, which is somebody rotting in jail because they smoked the wrong kind of cocaine. It is an unjust result. It is something we should resolve in this body to avoid.

Notable developments concerning capital processes

Thursday brought two interesting developments concerning death penalty procedures: (1) a reversal by the First Circuit of District Judge Nancy Gertner's unique jury bifurcation approach in a federal capital case (previously discussed here), and (2) a new Texas Defender Service study entitled "Minimizing Risk: A Blueprint for Death Penalty Reform in Texas" which compares "best practices" recommended by the Illinois Commission on Capital Punishment to existing procedures in Texas.

1.  The First Circuit's decision in US v. Green, No. 05-1014 (1st Cir. May 12, 2005) (available here) is well described at Appellate Law & Practice and at PRACDL Blog.  Here is the Green court's informative opening paragraph:

The district court, presiding over a complex multi-count, multi-defendant capital case, issued a pretrial order calling for the empanelment of two separate juries: one to determine guilt and the other, totally different in composition, to determine whether to impose the death penalty. Before us, the government asserts that the Federal Death Penalty Act (FDPA) forbids this binary course of action. We conclude that the district court's unprecedented order presents a basic, previously undecided question of substantial public importance and, accordingly, entertain the government's petition for advisory mandamus. Exercising that jurisdiction, we proceed to correct and countermand the district court's erroneous interpretation of the FDPA.

2.  The new Texas Defender Service study, "Minimizing Risk: A Blueprint for Death Penalty Reform in Texas," is a comprehensive document that runs over 150 pages (and can be accessed at this link).  The study's executive summary is available here, and it notes that the study "found that Texas does not comply with 80% of the safeguards of the criminal justice system" recommended by the Illinois Commission on Capital Punishment.  The executive summary also states that "[o]ur findings reveal an urgent need for death penalty reform in nine specific areas to reduce the risk of wrongful convictions and arbitrary death sentences."

Ross execution hours away... (and now completed)

At 2 am on Friday morning, Connecticut is scheduled to execute serial killer Michael Ross, and his execution would be the first in that state in over four decades and the first in the Northeast in the modern death penalty era (unless you include Pennsylvania in the Northeast). The most recent decisions from the courts and other case developments are being terrifically covered at The Connecticut Law Blog, and Norm Pattis at Crime & Federalism has penned this ode entitled "Twas the Night Before Killing."

POST-EXECUTION UPDATE:  The New York Times reports in this article that Ross was declared dead at 2:25am, and Newsday collects these interesting quotes.  I see that Will Baude at Crescat Sententia has some posted some pre-mortem and post-mortem thoughts, and I will continue to look to The Connecticut Law Blog for continuing coverage of this story.

Report on today's Enron barge sentences

I'm back on-line with lots to report after a day away.  Let me start with news from federal district courts, where we learn from this article the Judge Ewing Werlein, following the path he set out in prior sentencings (detailed here and here), imposed below-guideline sentences for three more defendants connected to the Enron Nigerian barge fraud case.  This development, considered also with this news report of two former executives of NewCom Inc. also receiving below-guideline sentences, brings up yet again the issues I raised in this post about whether we there is a distinctive pattern of leniency in white-collar cases post-Booker.

UPDATE:  Peter Henning at the White Collar Crim Prof Blog comments on the sentencings and related issues in this post.

Off-line (so I can be on the links)

A long-planned day on the links means I will be off-line all day Thursday.  In the late evening hours I hope to catch up on the day's sentencing developments, which will include the sentencing of additional defendants in the Enron barge case.  This Houston Chronicle article provides all the pre-sentencing details for the remaining defendants, and last month's posts about the sentencing of the other defendants are here and here.

As is my practice when due to be off-line, below I provide a review of some recent posts of note:

LEGISLATIVE DEVELOPMENTS AND COMMENTARY

• Anti-gang bill passed by House
• Reasons for rooting for criminal justice federalism
• Legislative debate over mandatory minimums heating up
• The rhetoric supporting mandatory minimums in the gang bill, HR 1279

DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY

• More Booker data coming soon?
• An international view on increased post-Booker sentences

CIRCUIT COURT BOOKER DEVELOPMENTS AND COMMENTARY

• 8th Circuit sets out post-Booker review procedures
• Notable appellate review dicta from the 11th Circuit
• Sixth Circuit discusses forfeiture issues
• Another busy sentencing day for the 8th Circuit
• 10th Circuit joins appeal waiver bandwagon

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Might Indiana's Supreme Court be a wise leader on the prior conviction exception?
• Interesting death penalty data from Ohio
• The (medical) costs of long sentences
• Interesting coverage of drug courts
• Ross and Schiavo ironic parallels

Anti-gang bill passed by House

As was predicted, the US House today passed its anti-gang bill, HR 1279, which has a number of mandatory minimums (first discussed here).  The AP provides this interesting report on the legislative discussion, and here are some interesting snippets:

"We're talking about gangs that are across the country,'' said Rep. Randy Forbes, R-Va., the bill's author.  ''If they were an army from a foreign country, they would be the sixth-largest army in the world.''

Forbes' bill, approved 279-144, would expand the range of gang crimes punishable by death, establish minimum mandatory sentences, authorize the prosecution of 16- and 17-year-old gang members in federal court as adults, and extend the statute of limitations for all violent crimes from five to 15 years....

Democrats said the bill puts too much emphasis on punishment and neglects prevention. While the bill authorizes $387.5 million over the next five years to fight street crimes, Democrats said the cost of accommodating new prison inmates alone would exceed $9 billion over the next decade. ''We must give our young people a path to success, not just a path to prison,'' said Rep. Eddie Bernice Johnson, D-Texas....

Gang members would be able to avoid the toughest sentences if they cooperate fully with prosecutors. Supporters looked at the mandatory minimum sentences as the first remedy to a recent Supreme Court ruling that made sentencing guidelines advisory instead of mandatory, a decision that disturbed many Republicans.  Backers also said they were the best way to force low-level gang members to cooperate with prosecutors and turn in gang leaders.  But Democrats said such sentencing requirements would disproportionately affect minorities, remove the discretion of judges and swell prison populations without stopping crime.

Rep. Maxine Waters, D-Calif., introduced an amendment that would have struck the mandatory sentencing provisions from the bill, but withdrew it in face of GOP opposition, saying she didn't want it to become a political issue. ''I know there are people who are just salivating for this amendment to remain on the floor so they can catch Democrats voting for something they will use in their campaigns,'' Waters said.

The House approved an amendment by Rep. Bob Goodlatte, R-Va., that stiffens penalties for illegal immigrants, who law enforcement officials say make up a large proportion of the membership of some gangs. The provision, approved 266-159, adds five years to violent crime and drug trafficking sentences when the violator is an illegal immigrant, and 15 years if the violator has previously been deported for a criminal offense....

The bill's prospects in the Senate are uncertain.  Sens. Dianne Feinstein, D-Calif., and Orrin Hatch, R-Utah, have introduced an anti-gang bill that, unlike Forbes' bill, contains funding for crime prevention programs and does not include mandatory minimum sentence provisions.

UPDATE: Additional coverage of the passage of this bill in the House, with additional interesting quotes, appears in The Washington Post and The New York Times and the Los Angeles Times.  Also, the Miami Herald has this strong editorial against the bill, which laments that the House is looking to "respond to the menace of immigrant gangs in the United States with headline-grabbing legislation that does little to cure the problem but looks good in a campaign ad."

Might Indiana's Supreme Court be a wise leader on the prior conviction exception?

Michael Ausbrook at INCourt has this notable post which details that the Indiana Supreme Court has ordered supplemental briefing in Ryle v. State focused on two questions concerning the scope of the "prior conviction" exception to the Apprendi-Blakely rule.

Ryle seems like an especially good test case for the scope of the "prior conviction" exception for a few reasons: (1) as detailed by Michael and in this post last year, Ryle directly addresses two key issues and uncertainties surrounding the prior conviction exception; (2) because Indiana's legislature has now passed a Blakely fix which makes Indiana's guidelines advisory, the state Supreme Court can consider the legal issues without pragmatic worries that all future sentencings hang in the balance, and (3) the Indiana Supreme Court's work in its big Blakely case, Smylie (basics here, commentary here and here and here) gave me the impression that this court really understands these issues.

Michael reports that oral argument in Ryle is not until next month, and I am not sure about the briefing schedule.  But I will be eager to see what the parties have to say concerning one of the biggest and most important doctrinal issues still lurking in the post-Blakely world.

A mid-week afternoon tour around the blogsphere

The Circuits seem, thankfully, a bit quiet today on the Booker front (although the Eighth Circuit today, yet again, issued a bunch of sentencing opinions).  But the blogsphere is keeping up with a number of interesting sentencing stories:

• Gene Vorobyov at Appellate Law & Practice has this interesting first-hand report on the Ninth Circuit oral argument in Irons v. Carey, the case discussed here in which the panel has expressed concerns about the constitutionality of the AEDPA federal habeas statute.

• Gideon at The Connecticut Law Blog reports and comments here on the 30-year sentence imposed today by US District Judge Ellen Burns in an anthrax scare case; this AP report on the decision does not indicate whether this sentence was within or above the applicable guidelines, but it does have other interesting facts about the case.

• Kirby at The Connecticut Law Blog reports and comments here on the latest (crazy?) lawsuit filed in an effort to halt Michael Ross's execution; the claim is that "the Ross execution will cause a 'suicide contagion' to spread through the state's correctional system."

• Jennifer Collins at PrawfsBlawg has this post on the anti-gang bill being considering in the House(recently discussed here), and Amos Anon at PrawfsBlawg has this post on Congress' reaction to Booker (recently discussed here); though neither post breaks significant new ground, they have both generated interesting and heated debates in the comments.

More on court reviews before death

Yesterday in this post I spotlighted parallels between the Terry Schiavo case and the on-going litigation in Connecticut seeking to prevent serial killer Michael Ross from volunteering to be the first person executed in the stae for more than 40 years.  Thanks to this post at TalkLeft, I see that Stephen Bright and Virgina Sloan in this National Law Journal opinion piece are also linking, though in a slightly different way, the Schiavo case to court review of death sentences.  Here are their concluding paragraphs:

The Schiavo law supporters appeared to agree that in life-or-death cases, there should be no obstacles to full federal court review.  Senator Rick Santorum, R-Pa., compared the Schiavo bill to "a horrific death penalty case in California," and urged his colleagues "to understand that [as in that case,] there is a proper role for Federal courts to look to make sure that due process was followed."

... The exonerations of people in prison and on death row have taught Americans a hard lesson — that our criminal justice system is fallible, and that a state court may convict the wrong person. This is especially true in capital cases, which engender great passions and place enormous pressures on judges and juries to convict and impose a death sentence. Congress should pass legislation providing for the same full federal court review of life and death decisions in capital cases that it provided for a single person in the Schiavo law.

Reasons for rooting for criminal justice federalism

As detailed in this AP story, the biggest criminal justice decision still percolating at the Supreme Court is in the medical marijuana case of Ashcroft v. Raich (lots of details here and here).  Though the post-argument buzz was that SCOTUS seemed unlikely in Raich to declare significant limits on broad federal criminal power, I continue to hope that the so-called "federalism revolution" will come to criminal law.  This is because it seems state legislators are much better than members of Congress at developing balanced sentencing policies and are not simply concerned with get-tough political rhetoric.

Today the evidence comes from Connecticut: as detailed in news accounts here and here, "state lawmakers, worried about the racial makeup in Connecticut's prisons, moved closer than ever Tuesday toward equalizing Connecticut's mandatory sentences for crack and powder cocaine convictions."  Significantly, in the Connecticut legislative debate, a proposal was put forward to toughen powder cocaine sentences, but the bill which passed instead equalizes punishments at the current level for powder offenses.  As explained in the AP story about the bill, "legislators who represent city districts where crack is more prevalent than powder cocaine said the change in law is necessary to give young people another chance at life and avoid prison time."

Contrast this state sentencing development with what is transpiring in the federal system, where there are bills moving forward in the House which seek to increase sentence lengths and create new mandatory minimums, even though the federal sentencing system already provides for extremely long sentences.  Though I remain hopeful the Senate may provide some brake on the continued expansion of severe federal criminal laws (consider the statements noted here by Republican senators during AG Gonzales confirmation hearing), there seems to be little political will to seriously reconsider the "tough-on-crime" philosophy and the harsh sentencing provisions that have swelled our federal prison population over the last two decades.  At least at the federal level, my hopes for a "new right" on criminal sentencing issues may be fading.

Of course, as detailed by this story from Alabama about a prison task force exploring ways for the state to deal with "Alabama's chronically overcrowded prison system," fiscal realities are perhaps what truly accounts for the different federal-state approaches to criminal justice issues.  But that reality only reinforces the fact that states and localities are better able to understand and respond to the true social and economic trade-offs that are inherent in any criminal justice reforms.  Or put more simply, because most crime is inherently a local concern, bringing the "federalism revolution" to criminal law would seem to make a lot of sense.

Legislative debate over mandatory minimums heating up

As evidenced by this New York Times story entitled "Congress Rekindles Battle on Mandatory Sentences," the struggle over mandatory minimum sentencing provisions is really starting to heat up.  The NY Times piece provides effective background on the broader issue of mandatories, and it also provides some details on developing legislation.

Of particular note, the Times article states that "the House is expected to approve on Wednesday" the gang bill, HR 1279, which has a number of mandatory minimums (and is discussed here).  The article further reports that "prospects for the measure in the Senate are uncertain, but opponents concede that as an anti-gang bill nicknamed 'gangbusters' it is likely to pass in some form." 

An article appearing in CQ Today also covers the debate over HR 1279, and it reports that "Maxine Waters, D-Calif., is expected to introduce an amendment stripping the bill's mandatory minimum provisions during floor debate" and that other planned "Democratic amendments would remove provisions that would prosecute youths as adults, subject gang defendants to the death penalty and direct more funds aimed at combating gangs to local law enforcement." 

These reports spotlight that supporters of the developing bills stress the importance of mandatory sentences in encouraging defendants to cooperate.  Indeed, I think these bills are best understood as efforts to maximize prosecutors' bargaining leverage rather than as efforts to remedy any identified need to increase sentences for particular crimes.  The Times article, aided by a quote from Virginia Representative Robert Scott, highlights an important point about the true impact of mandatory minimums:

Opponents ... argue that because prosecutors and judges need no incentives to punish the most egregious offenders with the most severe penalties, the mandatory sentences would fall mainly on lesser offenders.  "If it makes sense, you don't need it.  But when it doesn't make sense, it kicks in,"  Mr. Scott said.

UPDATE: TalkLeft has this extended post about the likely House vote on HR 1279 and problems with the "get-tough" measures in the bill.

A moonlit sentencing tour around the web and blogsphere

A number of sentencing-related items merit a late-night spotlight:

• Tony Mauro at Legal Times has this interesting article discussing a Florida death row inmate's case that has Larry Tribe and Ken Starr both urging SCOTUS review.

• Michael Ausbrook at INCourts details here the snoozer quality of the Indiana Supreme Court's disposition of a companion case to its big Blakely holding in Smylie (basics here, commentary here and here and here); Michael adds some commentary that is not sleep-inducing. 

• Picking up on the recent AP analysis of Ohio's death penalty practices, Ken Lammers at CrimLaw has this terrific post detailing why claims of racial inequities in the application of the death penalty rarely have much political traction; as Ken puts it, the race argument "only works for the true believers [and] they're not the ones who need convincing."

• The PBS webpage accompanying the Frontline documentary on mentally ill in prison is very impressive, and includes this terrific list of resources.

• The folks at Appellate Law & Practice have posts on recent Booker cases from the First Circuit and from the Eleventh Circuit.

Notable appellate review dicta from the 11th Circuit

Slowly but surely, the circuits are providing clues as to the nature and process of post-Booker appellate review.  The Eighth Circuit today in Mashek, as discussed here, directly spoke to its review process, and now I see the Eleventh Circuit in US v. Robles, No. 04-13596 (11th Cir. May 10, 2005) (available here), has indirectly addressed review issues in some closing dicta.

In Robles, the district court "first, sentenced Robles to 24 months’ imprisonment under a mandatory guidelines scheme [and then] stated an alternative sentence of 24 months, treating the guidelines as only advisory."  Based on this announced alternative sentence, the Eleventh Circuit concludes that the violation of the defendant's Sixth Amendment rights was harmless beyond a reasonable doubt.  And here is the notable dicta in the Robles court's concluding analysis:

Robles argues the district court's alternative sentence fails to account for the new emphasis placed on the factors listed in 18 U.S.C. § 3553(a).  After reviewing the § 3553(a) factors, we are at a loss to see how specific consideration of them could possibly change the result. To the contrary, the district court already expressly considered punishment and deterrence when sentencing Robles.

Even if Robles was sentenced post-Booker and we were reviewing for reasonableness, we would not expect the district court in every case to conduct an accounting of every § 3553(a) factor, as Robles suggests, and expound upon how each factor played a role in its sentencing decision. Certainly, the more insight a district court can provide us with, the better it will be for appellate review, especially when the court sentences outside of the guidelines; however, when a district court sentences within the guidelines, we could not expect a court to do more than was done in this case.

Ross and Schiavo ironic parallels

As terrifically covered at The Connecticut Law Blog (CLB), the legal wranglings in the Michael Ross case are perhaps entering a final chapter now that the Connectucut Supreme Court has ruled that Ross is competent to decide to waive his appeals and accept his death sentence.  (This Hartford Courant article reviews all the basics, and CLB has links and a summary of the ruling.)

The latest developments in the Ross case — particularly this news that courts have now turned back efforts by Ross' sister and father to intervene, and this AP story reporting that four doctors have filled a complaint raising "medical and ethical questions surrounding the planned execution" of Ross — spotlights interesting parallels between the Ross case and the Terry Schiavo case.  In both, a lot of "outsiders" (in the form of family members and others) are expending a lot of time and energy to prevent a death that seems sought by the person who is to die (and who would not have such a fantastic life even if kept alive).

To his credit, Norm Pattis at Crime & Federalism, who says in this post the Ross case "has become a farce," has been consistently critical the Ross wranglings and the Schiavo wranglings.  But I wonder if many others who supported or lamented all the legal histrionics the Schiavo case have the same reactions and feelings about the legal histrionics in the Ross case.

8th Circuit sets out post-Booker review procedures

As detailed here and here and here, the Eighth Circuit is now setting the pace with post-Booker rulings, and today the Circuit in US v. Mashek, No. 04-2560 (8th Cir. May 10, 2005) (available here) discusses at length its process for post-Booker sentence review.  Here is a snippet of the Mashek court's discussion (with citations omitted):

[W]e believe the most appropriate standard for reviewing a district court's interpretation and application of the guidelines is the de novo standard.  We see no reason to deviate in this one instance from our normal practice of reviewing de novo a district court's legal conclusions. We would expect that if the Supreme Court intended to change fundamentally the manner in which we review a district court's legal conclusions, even in just one circumstance, it would have said so explicitly. Finally, we believe that applying the de novo standard of review to the application of the guidelines under § 3742(f)(1) before reviewing the resulting sentence for reasonableness ensures fidelity to Congress's goal of diminishing sentencing disparities while preserving the constitutionality of the nowadvisory guidelines.

In summary, post-Booker review of a timely raised challenge to the district court's interpretation and application of the guidelines is a two-step process. First, we will continue to examine de novo whether the district court correctly interpreted and applied the guidelines. We will also continue to review findings of fact for clear error.  Finally, we will review a district court's decision to depart from the appropriate guidelines range for abuse of discretion.  If the sentence was imposed as the result of an incorrect application of the guidelines, we will remand for resentencing as required by 18 U.S.C. § 3742(f)(1) without reaching the reasonableness of the resulting sentence in light of § 3553(a).

The 8th Circuit also decided some other sentencing cases today, and below I have reprinted the Circuit's official description of the one other published sentencing decision:

US v. Townsend, No. 04-3110 (8th Cir. May 10, 2005) (available here): Iowa state-court conviction could be counted in calculating defendant's criminal history as the conviction was not expunged for any of the reasons set out in section 4A1.2, cmt. n.6 - constitutional validity, innocence or mistake of law; district court correctly counted defendant's jail terms, imposed due to his previous contempts of probation, in calculating his aggregate prior sentence of imprisonment.

Interesting coverage of drug courts

With thanks to CrimProf for the tip, I recommend this thoughtful NPR story about drug courts.  The story provides background on drug courts and a nice review of the debate over their effectiveness.  The story also reports that the Bush administration is seeking to "boost funding for drug courts from $40 million to $70 million." 

Meanwhile, I see from this editorial in the Charlotte Observer that the North Carolina legislature has plans to "eliminate $1 million for the 30 drug court programs" in the state.  The editorial laments this development: "Drug courts SAVE the state money.  The consequence of eliminating funding is also clear: It would COST the state more than the $1 million it saves."

I have previously provided a lot of resources about drug courts in this prior post.

PBS Frontline examines the "new asylums"

Though I have plans to watch tonight's finale of The Amazing Race, my DVR is set to record tonight's airing of a new documentary on PBS's Frontline about the mentally ill in prison. Entitled "The New Asylums," here is a description of the show from the PBS webpage:

There are nearly half a million mentally ill people serving time in America's prisons and jails. As sheriffs and prison wardens become the unexpected and ill-equipped gatekeepers of this burgeoning population, they raise a troubling new concern: are jails and prisons America's new asylums?  With exclusive and unprecedented access to prison therapy sessions, mental health treatment meetings, crisis wards, and prison disciplinary tribunals, FRONTLINE goes deep inside Ohio's state prison system to present a searing exploration of the complex and growing topic of mental health behind bars and a moving portrait of the individuals at the center of this issue.

Today's New York Times has this review of the program, which it calls "enormously disturbing."

10th Circuit joins appeal waiver bandwagon

Because the Tenth Circuit releases its opinions very late in the day, I missed last week that the court on Friday in US v. Green, No. 04-5105 (10th Cir. May 6, 2005) (available here) formally joined other circuits in enforcing a pre-Blakely appeal waiver despite the legal sea change brought by Blakely and Booker.  Green is a thorough opinion on the appeal waiver issue (although, as detailed in commentary here and here, I have concerns about the result).  Green also discusses a court's limited authority to correct a sentence under Rule 35(a).  Here is the Green ruling's opening summary paragraph:

In this direct criminal appeal, we hold that the district court did not have jurisdiction under Fed. R. Crim. P. 35(a) to resentence Defendant more than seven days after the court orally imposed an earlier sentence.  We also conclude that Defendant's waiver of his appellate rights — made before the Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004) — is enforceable and bars our consideration of any claims he may assert under United States v. Booker, 125 S. Ct. 738 (2005).

Another busy sentencing day for the 8th Circuit

The Eighth Circuit, which has been recently been producing sentencing decisions at a steady clip as detailed here and here and elsewhere, continued to be productive by issuing at least a half-dozen criminal justice opinions today.  Below I have reprinted the Circuit's official description of two rulings which seemed most notable from the perspective of sentencing law and procedure:

US v. Brown, No. 04-2156 (8th Cir. May 9, 2005) (available here): Because Missouri withholds substantial civil rights from convicted felons, defendant had not been restored to sufficient civil rights to invoke the provisions of 18 U.S.C. Sec. 921(a)(20) and could be convicted of being a felon in possession of a firearm; defendant's prior drug convictions were "serious drug offenses," and he could be sentenced to the mandatory minimum under 18 U.S.C. Sec. 924(g)(1).

US v. SLW, No. 04-2715 (8th Cir. May 9, 2005) (available here): District court did not abuse its discretion in transferring juvenile for criminal prosecution as an adult; district court correctly applied the factors set out in 18 U.S.C. Sec. 5032; while magistrate judge erred in considering uncharged, unadjudicated conduct in making his report and recommendation, the district court corrected the error and did not consider that information in making its decision; hearsay rule does not apply at juvenile transfer proceedings, and the district court could consider hearsay evidence.

The rhetoric supporting mandatory minimums in the gang bill, HR 1279

I noted in this post that FAMM is sounding the alarm about H.R. 1279, which FAMM calls "an extremely harsh and unnecessary gang bill that includes many new and increased federal mandatory minimum sentences."  Helpfully, today TalkLeft in this post and the PRACDL Blog in this post have provided a lot of additional information, criticisms and links concerning H.R. 1279, and I have now found that there is helpful information about the bill and its status available at this official link.  Also now available is a 291-page House report (House Report No. 109-74 dated May 5) on the bill, which is available here.

A helpful reporter helpfully pointed out an interesting passage concerning mandatory minimums and Booker starting at page 15 of the House report on H.R. 1279.  Here's a selection:

Finally, the bill includes a number of new mandatory minimum criminal penalties with respect to violent gang crimes and other violent offenses.  As explained here, mandatory minimum penalties are effective means for ensuring consistency in sentencing, and promote public safety by deterring violent criminals and incapacitating violent criminals who are likely to commit additional violent crimes.

The Supreme Court's recent Booker decision in has eviscerated long-standing and effective sentencing policies adopted by Congress as part of the Sentencing Reform Act of 1984.  The evidence is starting to come in, and the picture is not a good one.  Federal judges have begun to hand out sentences below the guideline recommended range, citing the discretion they now have under the Booker decision.  The Sentencing Reform Act of 1984 was designed to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted disparities among defendants with similar records who have been found guilty of similar criminal conduct.  Sentencing judges have started to deviate, and some have announced even prospectively that they intend to do so in more cases.  Given the elimination of an effective determinate sentencing guideline system, Congress will need to act quickly in certain areas by imposing mandatory-minimum sentences to protect the public, particularly when it comes to violent gang crimes....

Moreover, mandatory minimum penalties provide the tools for prosecutors to secure the cooperation of gang members to dismantle violent gang organizations and solve violent crimes where the witnesses may only be other gang members.  Without such a penalty, gang members will not cooperate with law enforcement; they will simply turn their back on cooperation, do the time, and gang violence will continue to expand and to threaten our communities.

Regular readers should find a lot of this language familiar.  This text and other materials in the House report come from a research paper (discussed in this post) that  was making the rounds in Washington last month.  That document, which was full of rhetoric concerning the value and need for mandatory minimum penalties, made over-statement an art-form and was quite one-sided on all the issues covered.  I think the same can be said about what I see so far in this House Report.

I doubt I will get a chance to read the bulk of this House report on the gang bill, but I highly encourage readers to spotlight other sections of the report that merit focused consideration.

Sixth Circuit discusses forfeiture issues

I was pleased to see the Sixth Circuit unveiled this attractive new website today (as detailed in this post, form as well as substance is always important to law bloggers).  I was also intrigued to see that the circuit used an unpublished opinion in US v. Hall, No. 04-5047 (6th Cir. May 9, 2005) (available here), to address the application of Blakely and Booker to a criminal forfeiture award.

In Hall, a jury determined the amount of the defendant's ordered forfeiture, but Hall objected on appeal that this determination was on "the basis of the preponderance-of-the-evidence standard rather than the beyond-a-reasonable-doubt standard."  Emphasizing the Supreme Court's pre-Apprendi decision in Libretti and the circuit's post-Apprendi rejection of a similar claim, the Sixth Circuit turned back the defendant's claims.  And the concluding paragraph in Hall gave the ruling an interesting extra spin:

The absence of a statutory maximum or any sort of guidelines system indicates that forfeiture amounts to a form of indeterminate sentencing, which has never presented a Sixth Amendment problem.  Like the Seventh Circuit, we fail to see how Booker requires us to overturn our prior precedent in this area (Corrado) or allows us to turn our back on the Supreme Court's prior ruling in this area (Libretti).  Hall's effort to extend Apprendi and Booker to criminal forfeitures, accordingly, is rejected.

The (medical) costs of long sentences

The Tuscon Citizen has this thoughtful article about Arizona's aging prison population and the rising health-care costs associated with this phenomenon.  Here are some highlights from the article's discussion of an issue impacting prisons nationwide:

Arizona's prison inmates are getting older, sicker and they are staying behind bars longer, driving up health-care costs that have to be shouldered by taxpayers....

Arizona, with more than 32,000 inmates, mirrors a national problem, as its prison health-care allocations have increased 78 percent in the past decade.  And because aging inmates, those 55 and older, can cost three times as much to care for as younger inmates, experts warn they could potentially bankrupt some of the nation's already cash-strapped prison systems.

Officials blame longer sentences and truth-in-sentencing guidelines that virtually abolished parole.... All this means states across the country are scrambling to find ways to offset mounting medical expenses racked up by older inmates or grappling with adopting early-release programs for elderly inmates and those who are chronically or terminally ill.  At least 16 states provide special housing units for geriatric inmates, and soon Arizona will join more than two dozen states that operate hospice facilities inside prisons to provide end-of-life care at a reduced cost.

More Booker data coming soon?

It has now been nearly a month since the US Sentencing Commission has updated its post-Booker data.  (The last data report, with cases coded through April 5, is available here and discussed briefly in this post.)  Of course, the USSC has been busy finishing up its report of 2003 sentencing data (discussed here) and trying to beat back the bad Booker fix bill moving through the House (through this letter and perhaps other means).  Nevertheless, I am again getting itchy to see the latest state of post-Booker sentencing in the district courts, especially the federal sentencing system is probably now back to processing over 5000 cases per month.

Moreover, I continue to be eager, as noted in this prior post, for post-Booker circuit court data.   My sense is that the pace of circuit Booker rulings has shifted into high gear (except in the Ninth Circuit, where we are still awaiting an en banc ruling in Ameline).  A quick on-line search tonight produced over 750 federal appellate decision mentioning Booker, and this list leaves out at least some unpublished dispositions.  Whenever we get Booker circuit data, I will be especially interested to compare affirmances and remands of various sorts among the circuits taking divergent approaches to plain error and Booker other pipeline issues.

Notably, as detailed in this post, later this month the USSC will help conduct the  14th Annual National Seminar on the Federal Sentencing Guidelines.  I suspect the USSC will update and make public its post-Booker data for that event, but I hope we might get at least some new data even sooner.

Sentencing bookworm

Larry Solum at Legal Theory Blog finds time every Saturday to recommend a new or old legal theory book through his Legal Theory Bookworn posts (recent examples are here and here).  Though I doubt I will be as regular as Larry, I like the idea of spotlighting new or old sentencing books wich merit attention (since, as detailed here and here and here, there are not enough new sentencing articles to keep us all busy).

I was inspired to do a sentencing bookworm post after seeing this review of an interesting just published book entitled Downsizing Prisons: How to Reduce Crime and End Mass Incarceration by Michael Jacobson.  Here is a brief blurb about the book:

Downsizing Prisons examines specific ways that states have begun to transform their prison systems.  Jacobson offers practical policy solutions and strategies, including changing how parole and probation agencies operate, significantly reducing punitive sentencing and "technical" parole violations, and supporting drug-treatment programs for low-level drug offenders.  These policy changes can actually increase public safety as well as save money.

This blurb comes from this website which spotlights a recent forum hosted by the Open Society Institute to discuss ideas in Downsizing Prisons.  An interesting summary of that discussion is available at this link.

Sunday sentencing stroll around the web

Over at SCOTUSblog in this post, Tom Goldstein — a deserved member of the National Law Journal's "40 under 40", who is profiled here — paid this blog a very nice complement when noting this recent post taking a sentencing tour around the blogsphere.  So, hoping to keep up the good work, here's web stroll around sentencing items catching my eye:

• As detailed here, FAMM is sounding the alarm about the prospect of bad sentencing legislation moving forward in the U.S. House: "Sometime during the week of May 9th, the U.S. House of Representatives is expected to vote on H.R. 1279, an extremely harsh and unnecessary gang bill that includes many new and increased federal mandatory minimum sentences."

• At law.com, I see this article discussing Irons v. Carey, the habeas case in the Ninth Circuit in which the panel is questioning AEDPA's constitutionality (How Appealing first flagged the case here and I discussed it here).

• The federal defender blogs have interesting new entries reviewing a number of recent Booker decisions at the Seventh Circuit Blog and at the Tenth Circuit Blog.

• And, returning to the National Law Journal's "40 under 40" list, I also see interesting profiles of Blakely victor Jeff Fisher and the new head of DOJ's Criminal Division Alice Fisher. (I do not think they are related.)

I am still holding out hope that I may someday be named to some magazine's list of 57 under 5'7" (although I am not expecting Randy Newman to nominate me for the award).

UPDATE:  TalkLeft in this post and the PRACDL Blog in this post provide a lot of additional information and criticisms of H.R. 1279.

Interesting death penalty data from Ohio

As this article details, the AP has collected interesting data on Ohio capital prosecutions (details here and here).  The article leads with the finding that "offenders facing a death penalty charge for killing a white person were twice as likely to go to death row than if they had killed a black victim."   TChris at TalkLeft in this post spotlights the impact of race in this Ohio study, although The Idealist in this post has questions about the Ohio data and its reporting.  Of course, DPIC is the place to go for loads of information about race and the administration of capital punishment.

Though the race issue always captures attention, I found the article's (mostly anecdotal) discussion of plea bargaining and of county-by-county differences in capital case processing to be most interesting aspect of the AP's research.  And this follow-up article highlights that the high cost of capital prosecutions keeps small counties from being able to pursue death penalty cases the same way larger counties can.   

Relatedly, I see that these same basic issues are being discussed by the folks at the Connecticut Law Blog: this post (referencing this interesting article) reviews the stalled investigation into whether the state's death penalty is racially biased, and this post (following up my query) details all the monies spent in all the litigation over whether serial killer Michael Ross will be allowed to volunteer for execution.