Sentencing Law and Policy

More for the sentencing reading list from SSRN

As if our reading list was not long enough based on the dozens of articles noted in prior posts here and here and here and here, the following pieces appearing recently on SSRN certainly merit attention for those interesting in various sentencing issues:

• Beyond BandAids: A Proposal for Reconfiguring Federal Sentencing After Booker by Frank O. Bowman, III

• Murder, Meth, Mammon, and Moral Values: The Political Landscape of American Sentencing Reform by Frank O. Bowman, III

• Sectarian Reflections on Lawyers' Ethics and Death Row Volunteers by Richard W. Garnett

• Horizontal Federalism in an Age of Criminal Justice Interconnectedness by Wayne A. Logan

• Victims, Survivors and the Decisions to Seek and Impose Death by Wayne A. Logan

• Sentencing Reform Reform: The Sentencing Information System Alternative to Sentencing Guidelines by Marc L. Miller

And, though I have already plugged the piece in this post, I will note that you can now also download via SSRN my article Beyond Blakely and Booker: Pondering Modern Sentencing Process, which is forthcoming in the Journal of Criminal Law and Criminology.

SG is seeking cert. on plain error!

As revealed by the week-in-review post below, I was ready to pack it in for the day a few minutes ago.  But, a last check of e-mail brings news of a big filing by the Solicitor General in the Supreme Court concerning the Booker plain error mess.  Specifically, in Rodriguez v. US, the big plain error decision coming from the Eleventh Circuit (details here and here), the SG has responded to the defendant's cert. petition by saying review is warranted.  Here is the key opening paragraph in the filing you can download below:

Petitioner contends that this Court's review is warranted to resolve a conflict in the circuits on the proper application of the plain-error standard to forfeited claims of sentencing error under Booker. The court of appeals in this case correctly held that petitioner was not entitled to relief on his unpreserved Booker claim, and the conflict in the circuits involves a transitional issue that may have limited continuing importance once the cases in which sentences were imposed before Booker have become final.  Nonetheless, the multi-circuit conflict on the issue is deep and real, and it implicates issues concerning the proper conduct of Plain-error review that could recur in other contexts.  Accordingly, this Court's review is warranted.

Because I have tickets to see Revenge of the Sith this evening, commentary may have to wait on this big development that I'm calling Revenge of the BIPP (Breyer's Incomprehensible Pipeline Paragraph).  In the meantime, readers are urged to use the comments to weigh in on this interesting development.

Download rodriguez_041148_resp.pdf

UPDATE: Lyle Denniston at SCOTUSblog provides this post with background on the facts of Rodriguez and the development of the plain error issue.  Also, in this post way back in February, I discussed the original cert. petition filed by the firm Jones Day.  That petition, which is now a bit dated due to all the subsequent circuit developments, is available at this link.

Reviewing the week that was

I predicted a big sentencing week in this preview post, and that prediction in my view came true even though we did not get any major rulings from SCOTUS this week.  In any event, you can make your own assessment based on this review of major posts from this week past:

LEGISLATIVE DEVELOPMENTS AND COMMENTARY

• The Fool(ish bills) on the Hill
• More editorial criticism of House's pursuit of mandatory minimums

DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY

• More district court action on crack/cocaine disparity
• Judge Cassell on fast-track and family circumstances
• Reports on Booker resentencings
• Tough sentences for white-collar offenders

APPELLATE COURT BOOKER DEVELOPMENTS AND COMMENTARY

• The Monday Booker GVR report
• Third Circuit joins non-retroactivity bandwagon
• 6th Circuit discusses post-Booker appellate review and plea dynamics
• Booker, Crawford, Ex Post Facto, oh my...
• Yet another big sentencing day for the 8th Circuit
• 7th Circuit coverage of restitution

STATE BLAKELY DEVELOPMENTS AND COMMENTARY

• Tennessee Supreme Court denies rehearing in Gomez (but legislative fix still in works)!
• What's the next dance step in Tennessee's Blakely waltz?
• A taste of Tennessee Sour Mash

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Are four Justices ready to grant cert. on the constitutionality of lethal injection protocols?
• Notable death row reprieve request
• Another FSR issue heading to press
• An assessment of the war on drugs by the RAND Corporation
• Justice Kennedy reiterates his ABA comments on federal sentencing
• Fascinating circuit cases revealing unique victim perspectives
• Reaching economic tipping points for tough-on-crime movements

More district court action on crack/cocaine disparity

As detailed in a series of prior posts (here and here and here), Booker has breathed new life into the debate over crack/powder cocaine sentencing in the federal system.  And, thanks to this helpful post on this important issue at the PRACDL Blog, I see that the recent decision of US District Judge Ronnie Greer in US v. Clay, Cr. No. 03-73 (E.D.Tenn. May 6, 2005) (available here), should be added to the list of opinions that examine the crack/powder ratio and address concerns with the aid of post-Booker authority.

Judge Greer's conclusions in Clay nicely summarize the important work done in the opinion:

Taking all the foregoing factors into consideration, and taking into consideration the congressional mandate that sentences for crack offenses be stiffer than for cocaine offenses, the Court FINDS that the following factors outweigh the significant weight this Court has determined to give to the sentencing guidelines advisory range (regardless of whether this Court considers the range to be 235 to 293 months [based on judicial fact-finding] or 188 to 235 months [based on jury fact-finding] ).

1.  The defendant's history and characteristics as set forth above;

2.  His criminal history category which over states his criminal history and weighs in his favor against the likelihood that he will commit another offense;

3.  The fact that he withdrew from the conspiracy and led a productive life for one year prior to his arrest in this case weighs in his favor against the likelihood that he will commit another offense; and

4.  The unjustified disparity in the 100:1 quality ratio for punishment between cocaine base or crack and powder cocaine.

Based on a careful consideration of all the factors listed in 18 U.S.C. § 3553(a), the Court FINDS that a reasonable sentence for this defendant is one hundred and fifty-six (156) months on each count to run concurrently, a sentence that is sufficient, but not greater than necessary, to serve the purpose of sentencing established by the Congress.  The Court specifically FINDS that a sentence of 156 months provides substantial and appropriate deterrence to those contemplating this offense, promotes respect for the law and provides just punishment based on the defendant’s conduct.

7th Circuit coverage of restitution

In this recent post, I spotlighted Blakely's applicability to restitution and other non-prison sentences as an issue that merits Supreme Court attention sooner rather than later.  Today in US v. Pree, No. 03-1516 (7th Cir. May 20, 2005) (accessible here), the Seventh Circuit had ocassion at the end of a long opinion to review restitution's status post-Blakely. The Pree court reiterates the circuit's prior holding in George (discussed here) that restitution is a civil remedy not governed by Apprendi, Blakely and Booker, and in footnote 20 the court adds:

Other courts of appeals also have held that Apprendi does not apply to orders of restitution. [Cites from the 3d, 6th and 8th Circuits.]  However, we acknowledge that "[w]hether restitution is a criminal punishment and whether restitution is subject to Apprendi, Blakely, and Booker are by no means settled questions in courts across the country." Garcia-Castillo, 2005 WL 327698, at *5 n.4 [10th Cir.] (collecting cases).

As detailed in this post, some academic commentators have forcefully argued that Blakely/Booker should be applied to federal restitution.  And, in this context, it bears recalling that virtually all lower courts held that Apprendi had no applicability to guidelines schemes until the Supreme Court in Blakely corrected that misunderstanding.

Yet another big sentencing day for the 8th Circuit

The ever-active Eighth Circuit is not taking a casual Friday today: on its opinion page, I count another half-dozen notable criminal dispositions with some sentencing discussion.  Aided by the court's official summaries, here is a quick overview of what seem to be the most notable decisions today:

US v. Fogg, No. 04-2723 (8th Cir. May 20, 2005) (available here): Sentence affirmed [based in part on an appeal waiver and approving upward departure], but restitution order vacated and remanded for reconsideration. [PUBLISHED] [Bowman, Author, with M. Arnold and Gruender, Circuit Judges]

US v. Roy, No. 04-2310 (8th Cir. May 20, 2005) (available here): [Among other holdings,] counts of indictment alleging assault on a federal officer and assault with a dangerous and deadly weapon were multiplicitous, and one of the convictions must be vacated; ... defendant failed to meet his burden to show plain error under Pirani and was not entitled to resentencing under Booker; district court did not err in imposing a five-level enhancement under Guidelines Sec. 2A2.2(b)(3)(E). [PUBLISHED] [Wollman, Author, with Lay and Colloton, Circuit Judges]

US v. Velazquez, No. 04-2706 (8th Cir. May 20, 2005) (available here): Evidence was sufficient to support drug and firearm convictions; no error in denying motion in limine; defendant had adequate notice of the prosecution's intent to rely on prior convictions. [PUBLISHED] [Smith, Author, with Loken, Chief Judge, and Riley, Circuit Judge]

US v. Urkevich, No. 04-2244 (8th Cir. May 20, 2005) (available here): Discrepancy between indictment and instruction on carrying, using or possessing a firearm was not fatal and did not materially alter the offense for which defendant was charged; evidence was sufficient to support drug conspiracy and firearm convictions; defendant was not entitled to relief under Blakely or Booker as he could not establish that the district court would have imposed a lesser sentence under the new advisory sentencing scheme. [PUBLISHED] [Riley, Author, with Loken, Chief Judge, and M. Arnold, Circuit Judge]

An assessment of the war on drugs by the RAND Corporation

Thanks to an informed reader, I have just learned that The RAND Corporation a few months ago issued an interesting report entitled "How Goes the 'War on Drugs'? An Assessment of U.S. Drug Problems and Policy."  The report, which is overviewed in this research brief and is available in full text here, aspires to present "a concise, accessible, objective view of where the United States has been, now stands, and is going in the future in its long 'war on drugs.'"

Here are some highlights from this press release by RAND concerning the report's interesting findings and conclusions:

The study reviewed evidence for and against the effectiveness, costs and consequences of U.S. drug policies of the past 20 years. It concludes that at different times in the course of a drug epidemic, enforcement, treatment and prevention can all be successfully used to reduce illicit drug use and the crime and violence with which it is associated.

However, the strategies are not equally effective in all stages of a drug use epidemic. For example, law enforcement is most effective in the early stages of a drug epidemic, when relatively fewer suppliers are available and suppressing the supply is easier. In contrast, treatment is more effective in the later stages of a drug use epidemic, when a much larger percentage of ongoing users are drug dependent.

The study suggests that for drugs with mature epidemics such as cocaine, the current allocation of resources for controlling the drug should be redistributed among law enforcement, treatment and prevention to maximize their effectiveness.  Most cocaine-control spending is focused on enforcement, but the report suggests that spending more to treat heavy drug users would be more effective.

Among the many interesting aspects of the RAND report is a express pitch, like the pitch I made in this recent post, for embracing what might be called criminal justice federalism:

• Draw strength from cross-state variations in drug policy.  The federal government has sought to rein in those few states whose policies have deviated from its own. The government might instead tolerate and seek to learn from state variations that do not seriously undermine the intent of the federal strategy.

A Booker review ... that's a bit off on a key point

Just posted via law.com is this article from the Legal Intelligencer which, reviewing the state of Booker in the circuits, rightly notes that Booker has "had a rippling effect on the lower courts, creating waves of litigation, as criminal defendants at every stage tried to take advantage of it."  The main focus of the article is the Third Circuit's recent ruling in Lloyd (discussed here), which declared that Booker was not to be applied retroactively to cases which were final before Jan 12, 2005. 

The article's reporting on Lloyd and broader Booker retroactivity realities is basically sound.  But the piece stumbles in its discussion of plain error in the circuits when it asserts that "defendants on direct appeal who had failed to raise a Booker argument at the time of their sentencing are routinely winning new sentencing hearings as the appellate courts have ruled that they satisfy the 'plain error' test." 

This statement is perhaps an accurate description of life in the Third and Sixth Circuits.  But in the First, Fifth, Eighth, Tenth and Eleventh Circuits, defendants subject to plain error review are decidedly not "routinely winning new sentencing hearings."  And, in the Second, Seventh and DC Circuits, defendants are only routinely winning Crosby/Paladino remands, not new sentencing hearings.  (The Fourth Circuit story is mixed depending on whether the case involved a Sixth Amendment violation below.)

I surmise this piece comes from the Third Circuit, which perhaps explains the error.  But it is a telling revelation of the mess that Booker has wrought when even the legal press cannot keep up with the dramatic circuit splits on Booker plain error issues (basics here and here).

Late-night blog roaming for sentencing items

A late-night roam around the blogsphere has unearthed these notable posts on sentencing topics:

• TalkLeft in this post details that news of the extreme drug sentencing provisions in HR 1528 (some background here) has caught the attention of an editorial writer in Sydney, Australia, who comments that the bill "represents the point where the war on drugs has lost its mind, its pious extremism blind to the damage it will do to a society that respects its neighbours."

• On the topic of drug sentencing, Gideon at The Connecticut Law Blog has news in this post that the state's bill to equalize sentences for crack and powdered cocaine is awaiting Governor Rell's signature.  I previously discussed this bill in this post touting state insights on criminal justice matters.  Gideon also explores in this post the status of mandatory minimum sentences under state law.

• Tom Freeland at Appellate Law & Policy notes a plain error sentencing reversal from the Fifth Circuit in this post, and Happy Fun Lawyer at AL&P has this post about a notable Second Circuit AEDPA ruling (which confirms my sense of the need for a distinct AEDPA blog).

A taste of Tennessee Sour Mash

I detailed in this post that the Tennessee Supreme Court has now refused to rehear its Gomez decision (basics here, problems here), and in this follow-up post I pondered what happens next with the Gomez case and other cases in Tennessee.  Helpfully, insightful Tennessee correspondent David Raybin has provided this report from the front lines:

I have learned that the attorneys for the litigants in Gomez will be taking a prompt appeal to the US Supreme Court.  I am confident that Tennessee Association of Criminal Defense Lawyers will file an Amicus to the petition. Gomez also presents a plain error issue which the Supreme Court may wish to resolve as well or it may make the case unattractive. 

The Gomez issue may not yet be ripe for federal habeas corpus review for [other] pipeline cases because the Court of Criminal Appeals was routinely granting Blakely relief to cases coming before it.  Given that the Attorney General believed the statute was flawed, the AG never appealed those cases to the Tennessee Supreme Court.  Thus, the universe of potential defendants who could go directly to federal court at this time is rather small.  The flood will start with those cases in the Court of Criminal Appeals where the issue has been raised and they must now deny relief. 

The other (and in my view) much greater problem is what is to be done at the trial level.  It is malpractice to accept any sentence higher than the presumptive minimum because of the near universal belief that Gomez will die in federal court.  Judges in some places are now imposing two sentences and some judges are having the jury find the enhancement factors.  Chaos. It is unnecessary to speculate about the problems Gomez wrought in Tennessee.  It is all too real.

In addition to this interesting report, David also made sure to provide a bit of background on a well known potent potable: "Sour mash, which also is sippin’ whiskey and Tennessee whiskey, is a frequently misunderstood term. Sour mash simply refers to the technique used in the preparation of most, if not all, straight whiskey. The sour mash method makes the yield more efficient. Sour mash got its name because the thin spirit 'beer' remaining had a slightly acidic taste, although the resultant whiskey was anything but sour."

Booker, Crawford, Ex Post Facto, oh my...

Thanks to this post over at Appellate Law & Practice, I am channeling Dorothy in expressing my excitement (and trepidation) over the opinion from the First Circuit today in US v. Molina, No. 03-1625 (1st Cir. May 19, 2005) (available here). 

Molina provides us with nearly 50 pages of fine prose from Circuit Judge (have-your-dictionary-handy) Bruce Selya.  The ground covered, in the words of AL&P, is "a bonanza of Confrontation Clause, Ex Post Facto, and Booker stuff."   From a quick read, I see some notable dicta in the Booker and Ex Post sections, though I will have to look up the words "salmagundi," "gallimaufry," and "asseverate" before I can be sure I haven't missed some important nuances. 

Who says the law and blawg content isn't populist?!?  Happy reading.

Keeping Irons in the fire

Howard Bashman at How Appealing has the news and links here detailing that the Ninth Circuit panel considering the constitutionality of the AEDPA habeas standard in Irons v. Carey has now "issued an order ... requesting supplemental briefing and notifying the Attorney General of the United States that the statute's constitutionality has been called into question."  Howard also reports that this order, available here, "contemplates the possibility of panel reargument and also invites interested amici to request leave to file briefs."   (I have previously discussed Irons, and its possible impact on capital cases and Blakely habeas litigation, in this post.)

UPDATE:  Lyle Denniston at SCOTUSblog now has this informative post on this latest hot Irons development.

The diktats of criminal history and Booker's potential virtue

The Seventh Circuit's decision today in US v. Rosas, No. 04-2929 (7th Cir. May 19, 2005) (available here) does not break any new Booker ground, but it does provide a stark reminder of the significance of the federal guidelines' criminal history diktats.  It also highlights why the post-Booker world, if properly constructed and kept free from too much Congressional interference, could be a much better federal sentencing world than what came before.

The facts of Rosas are hardly unique: the case involved a defendant with a criminal past who pled guilty to various drug and firearm charges.  The legal issue is whether the defendant's prior conviction for fleeing a police officer qualifies as a "crime of violence," which would in turn requiring sentencing as a career offender under USSG § 4B1.1.  Rosas caught my eye because this seemingly small (and substantively irrelevant?) legal dispute over whether fleeing a police officer is a "crime of violence" had enormous impact on the defendant's fate:  the defendant's guideline range was to be 77 to 96 months, but it jumped to 262 to 327 months if his fleeing prior was classified as a "crime of violence."

The Rosas court's legal analysis of this issue under pre-Booker law seems sound (circuit precedent apparently compels treating fleeing a police officer as a "crime of violence").  But, tellingly, the court's analysis never includes any consideration or judgment about the factual specifics of the defendant's priors or, more importantly, whether it makes sense for 15 years of a man's life to hinge on a legal debate over whether fleeing qualifies as a "crime of violence." 

Thankfully, Booker provides a remedy that could allow these case to be treated in a much sounder way.  No longer do criminal history diktats define an unalterable sentencing range; though a district judge must consider the diktats, she must also now consider the broad mandates of 3553(a) to explore whether a sentence for Rosas in the range of 262 to 327 months is "sufficient, but not greater than necessary" to achieve the purposes of punishment and the other goals set forth in 3553(a).  Though a judge post-Booker might still opt to follow the guidelines' diktats, that decision will now necessarily flow from a broader exercise of judgment, and a form of judgement that after Booker must be attentive to many factors that seem, at least to me, a lot more significant than whether fleeing a police officer qualifies as a "crime of violence."

More on constitutional challenges to lethal injection

With thanks to How Appealing for the tip, I see the AP has this informative story about the recent Supreme Court split over whether to grant a stay to a Missouri death row defendant who challenged the state's lethal injection protocol.  I detailed the SCOTUS split in this post which queried whether four Justices ready to grant cert. on the constitutionality of lethal injection protocols, and background on legal challenges to lethal injection can be found in this earlier post which discusses a constitutional challenge to lethal injection unfolding in a Kentucky case.

What's the next dance step in Tennessee's Blakely waltz?

As detailed in this post, the Tennessee Supreme Court has now refused to rehear its Gomez decision, which declared that Blakely did not raise problems for Tennessee's sentence system even though every litigant involved in the case, including the Tennessee Attorney General, believes Gomez rests on a misunderstanding of Apprendi and Blakely.  Though this decision is interesting in itself, the story of Blakely in Tennessee takes on a whole new layer of intrigue when one ponders what happens next.

David Raybin has predicted that the "old Tennessee pre-fix statute will not survive first contact with a federal court."  I share that instinct, but I wonder when and how that "first contact with a federal court" will occur.  I suspect the defendants in Gomez will petition for cert., but I have to wonder whether SCOTUS want to bother with this case especially now that the state's Task Force-recommended-Booker-style, Blakely fix legislation is about to become law. 

Of course, the other obvious way to get these issue before a federal court is through federal habeas, and thus a Tennessee federal district judge (and thereafter the Sixth Circuit) may get to weigh in on these issues through habeas.  However, procedural complication and the AEDPA overlay may make that a complicated path for correcting Gomez.

And while these issues and questions unfolds, what happens to cases in the pipeline in Tennessee (where some lower state courts had been applying Blakely to the state's sentencing scheme)?  And, thinking outside the box, I wonder if some enterprising Tennessee defendants with on-going cases about to be sentenced might seek to draw on the Supreme Court's recent Dotson decision in order to try to litigate these issue though a § 1983 action in federal court.

Though it is fun to speculate about all these issues, I really feel sympathy for the state prosecutors and defense attorneys in Tennessee who have to sort out these issues "on the ground."

Tough sentences for white-collar offenders

In a number of high-profile cases, white-collar defendants have received below-guideline sentences (e.g., the Enron Nigerian barge defendants and former Governor Rowland and others), and I have pondered in this post whether we might be seeing a pattern of leniency in white-collar cases post-Booker (I also queried in this post whether the federal guidelines may be too tough on white-collar offenders). 

But, as detailed below, a number of recent sentencings suggest that not all white-collar offenders are reaping post-Booker breaks:

• This article from Chicago details that a "businessman whose family had been among the prominent supporters of Mayor Richard M. Daley was sentenced Wednesday to almost 10 years in federal prison for defrauding the city and a group of insurance companies."

• This article from New Jersey details that "former Hoboken Mayor Anthony J. Russo was sentenced Tuesday to 30 months in federal prison and fined $30,000 for taking bribes from an accountant and towing contractor to help them get city contracts."  The article reveals that this sentence was at the very top of the applicable guideline range.

• This article from Indiana discusses a sentencing last month in which the 62-year-old former CEO [of the now-defunct Monon Corp.], Thomas Rosby, was sentenced to 87 months in federal prison ... for his role in arranging fraudulent loans that led to the company’s forced bankruptcy in October 1996."

Notable death row reprieve request

Thanks to this post at CrimProf Blog, I am pondering how a governor should respond to a death row inmate's request for a reprieve to provide the inmate an opportunity to donate an organ to save his dying sister.  According to this AP story, that's the issue facing Indiana Governor Mitch Daniels:

An inmate condemned to die by chemical injection this month is seeking a reprieve at least long enough to donate his liver to his dying sister. Gregory Scott Johnson is scheduled to die May 25 for the 1985 murder of Ruby Hutslar, an 82-year-old woman from Anderson....  Defense attorneys want Gov. Mitch Daniels to grant Johnson a short reprieve that would allow time for medical tests to determine whether the organ is compatible with Johnson's sister....

Johnson told The Indianapolis Star during an interview at the prison this week that he wants to donate his liver in hopes of leaving something positive to society. "'I'm sorry' just doesn't cut it," he said. "All of the same stupid things I've done that I thought wasn't hurting anyone — at that time in my life, I didn't care. I care now, but it's too late." Johnson admits he played a significant role in Hutslar's death but says another man who helped him actually killed her.

Johnson's 48-year-old sister, Deborah Otis, lives in an Anderson nursing home. Michelle Kraus, Johnson's attorney, said his request was not an attempt to delay the execution, saying he cares for his sister. "She is a mother and a grandmother. She has much to live for," Kraus said.

It seems to me that, for anyone truly committed to a "culture of life," this decision should be an easy call.  Johnson is only seeking a relatively brief postponement of his execution in order to try to save an innocent life.  But for some reason I am not expecting the Schiavo crowd to be pushing new federal legislation to save lives in this case.

Tennessee Supreme Court denies rehearing in Gomez (but legislative fix still in works)!

As detailed here, last month the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's sentencing scheme.  However, as detailed here, that ruling seemed to rest on a complete misunderstanding of Apprendi and Blakely.   Yet, despite the fact that every litigant involved in the case, including the Tennessee Attorney General, petitioned for rehearing in Gomez (see details here and here), today the Tennessee Supreme Court stuck to its guns and denied rehearing.

In its order rejecting rehearing, which can be downloaded below, a majority of the Tennessee Supreme Court asserts:

We remain convinced that Blakely must be read in light of Booker.... The Court harmonized the Federal Sentencing Guidelines with the Sixth Amendment by applying in Booker a remedy which created a discretionary sentencing scheme. We are not persuaded that the differences between the [Tennessee] Reform Act and the post-Booker Federal Sentencing Guidelines are constitutionally significant. If the Sixth Amendment countenances a sentencing scheme that permits judges to find facts relevant to sentencing and affords judges discretion to select a sentence anywhere within a statutory range, even in the absence of enhancing facts, we are unable to conclude that the Sixth Amendment forbids a sentencing scheme in which a state legislature limits judicial discretion by designating the presumptive sentence that must be imposed when a judge finds no enhancement or mitigating factors.

Of course, at issue in Blakely was Washington's sentencing scheme which limited "judicial discretion by designating the presumptive [sentencing range from which a sentence] must be imposed when a judge finds no enhancement or mitigating factors," and that scheme was found to violate the Sixth Amendment when a judge finds facts to go above that presumptive range.  In other words, unless Booker essentially overruled a key tenet of Blakely (and footnote 8 which speaks directly to this matter), Gomez still stands on very shaky ground (as detailed more fully here).

Interestingly, David Raybin, who has been integrally involved in many Tennessee Blakely developments, detailed in an e-mail to me that there is even more to the Tennessee Blakely story because of legislative developments:

The Tennessee Senate and House passed the Task Force-recommended-Booker-style, Blakely fix legislation today and it is on its way to the Governor's desk. Given that the legislation was proposed by the Governor's office, it should be signed by Memorial Day. It takes effect immediately upon the Governor's signature. I have drafted an article on the new legislation for the Tennessee Bar Association Journal [which can be downloaded below].

On the same day that the fix passed the legislature, the Tennessee Supreme Court releases its order on the collective petitions to rehear filled by all parties and the Amicus (whom I represent).  As for the Opinion itself, my first comment was: "res ipsa loquitur" (And for those who are not up on their Latin: "the thing speaks for itself"). I suggest that the old Tennessee pre-fix statute will not survive first contact with a federal court.  More to the point: who will defend it, given that even the Attorney General believes it is flawed. Astounding.

Download gomez_petition_to_rehear_denied_51805.pdf

Download draft_raybin_2005_blakelyfix_tba_article.pdf

6th Circuit discusses post-Booker appellate review and plea dynamics

The Sixth Circuit today in US v. Davidson, No. 03-6544 (6th Cir. May 18, 2005) (available here) spoke directly to the nature of post-Booker appellate review.  In short, more "same as it ever was" for reviewing guidelines calculations:

As we have previously suggested, the sentencing structure set out by the Booker remedial opinion cannot function absent appellate review of a district court's Guidelines calculations. The clear Booker requirement that the district court "consider" the applicable Guidelines range, would otherwise be meaningless. We continue, in reviewing individual Guidelines determinations, to apply the standards of review we applied prior to Booker. Accordingly, for purposes of determining the Guidelines recommendation, we continue to accept a district court’s factual finding that a defendant possessed a firearm during a drug crime unless it is clearly erroneous, but to subject a district court’s finding on a mixed question of law and fact — such as the existence of a substantial risk of harm to human life under U.S.S.G. § 2D1.1(b)(5)(B) — to de novo review.

Davidson is also quite interesting because of a bit of sparing within the court about whether the prosecutor's agreement to certain terms in a plea agreement, but then seeming to back away following a contrary PSR, was reason for concern.  Judge Moore, writing for the majority, dropped a footnote (footnote 6) to say:

We emphasize that we do not condone the behavior of the Assistant U.S. Attorney ("AUSA") responsible for this case at the district court.  The AUSA's behavior was, at a minimum, inconsistent with the spirit of the plea agreement, in which the United States agreed to recommend to the district court that the Firearm Enhancement not be applied against Mrs. Davidson. However, despite this representation, the United States did not object to the Presentence Report ("PSR") prepared in regard to Mrs. Davidson, did not request at sentencing that the district court reconsider the probation office’s recommendation, and did not make any objection after the district court imposed a sentence clearly contrary to the recommendation and stipulation in the plea agreement.... In a situation where the United States had obtained guilty pleas from two defendants only after it had "agree[d] and stipulate[d]," J.A. at 44, R. 71 at 4 (Mrs. Davidson's plea agreement); J.A. at 51, R. 72 at 4 (Mr. Davidson's plea agreement), that Mrs. Davidson should not be assessed the Firearm Enhancement, such acts and omissions fall far below the standard of conduct expected of federal prosecutors.

But Judge Gibbons concurred to clarify that she did not agree with this footnote in Judge Moore's opinion:

Footnote 6 appears to impose a duty on federal prosecutors to reiterate a recommendation in a plea agreement at every possible step in the proceeding, even when the recommendation is inconsistent with the true facts. Ideally, a recommendation that the district court not apply a particular enhancement should be based on an expectation that the court will find that facts supporting the enhancement do not exist. Sometimes, however, the government’s information is imperfect, and either the presentence report or evidence at the sentencing hearing reveals an inconsistency between the true facts and the factual findings necessary to support a decision that an enhancement does not apply. Here, while we do not know what information the parties had when they entered into the plea agreement, we know that both the presentence report and evidence at the sentencing hearing support application of the firearm enhancement to Mrs. Davidson. In this type of situation, a prosecutor's vigorous advocacy of factual findings that do not comport with reality is itself problematic. Moreover, a prosecutor can adhere to a recommendation of a plea agreement without repeating its terms at every opportunity. The district court was of course fully aware of the terms of the plea agreement and was required to make its findings based on the record.  All the parties knew this, and the prosecutor had to make a judgment call about an appropriate course of conduct, given the circumstances.  I cannot say that the prosecutor here chose wrongly.

Lots of blogsphere Booker news and analysis

Whether populist or not, Appellate Law & Practice and the federal defender blogs, which can all be accessed at this link, do a great job keeping up with new Booker cases.  Here are some of the recent posts from those locales with notable Booker news and insights:

• At AL&P, recent posts discuss recent Booker decisions from the First Circuit, and the Fifth Circuit, and the Eleventh Circuit.

• The Third Circuit Blog has this post on recent Booker decision in that locale.

• The Sixth Circuit Blog has this lengthy post providing an analytical summary of the court's approach to Booker pipeline cases.

• The Ninth Circuit Blog in this post provides a thoughtful examination of a recent case dealing with mens rea issues in federal drug prosecutions (not quite Booker, but still of sentencing relevance).

• The Tenth Circuit Blog has this post on recent Booker decision in that locale.

Are four Justices ready to grant cert. on the constitutionality of lethal injection protocols?

Thanks to finding this post at How Appealing (which is a sentencing needle in today's filibuster haystack), I see there might be four Supreme Court Justices eager to explore the constitutionality of lethal injection protocols as a method of execution.  (For some background, see this post on the legal attack on lethal injection.)

This issue came up through the last-minute appeals by Vernon Brown, who was executed by the state of Missouri early this morning (details here).  As revealed by this SCOTUS order (on page 3), four Justices voted to issue a last-minute stay; Justice Stevens wrote a brief opinion, joined by Justices Ginsburg and Breyer, explaining that he "would grant the stay for the reasons stated in Judge Bye's dissenting opinion."  (Interestingly, Justice Souter indicated he would grant the stay, but did not sign on to the Stevens opinion.)

The reference to Judge Bye's dissenting opinion concerns the earlier disposition by the Eighth Circuit of Brown's stay application.  A panel denied the motion for a stay in Brown v. Crawford, No. 05-2130 (8th Cir. May 17, 2005) (available here), but Judge Bye wrote a fascinating 8-page dissent focused on Brown's claims about the constitutionality of Missouri's lethal injection protocol.  Here are snippets from Judge Bye's opinion:

Brown challenges the chemical protocol used by Missouri to carry out lethal injections.  He contends the three-chemical sequence used by Missouri — sodium pentothal, pancuronium bromide, and potassium chloride — creates a foreseeable risk of the gratuitous infliction of unnecessary pain and suffering in violation of the Eighth Amendment....

As Brown's district court pleadings indicate, Missouri is "using a combination of chemicals they knew or should have known would cause an excruciating death when they were telling the public it was like putting a dog to sleep, when their own veterinarians would lose their licenses for using the same chemicals on a stray."  Brown v. Crawford, No. 4:05-CV-746-CEJ, Motion for Temporary Restraining Order at 19.  Brown contends there are alternative chemical protocols — for example, a lethal dose of pentobarbital — Missouri could use to carry out an execution without unnecessarily inflicting gratuitous pain and suffering....

Missouri has not countered Brown's medical evidence with any medical evidence of its own, but rather relied solely on procedural and legal defenses to this action.  The state's failure to counter Brown's medical evidence leaves Brown's evidence uncontroverted.  Thus, this case is unlike those in which similar challenges to this three-drug protocol were rejected, because in those cases the state presented medical evidence to counter the prisoner's claim he would be conscious and suffer extreme, unnecessary pain during an execution.  On the current state of this record, where the State of Missouri has not presented any evidence to counter Brown's medical evidence, I believe it is clear Brown is entitled to a stay of his execution.

Reaching economic tipping points for tough-on-crime movements

Scott Henson at Grits for Breakfast has been doing a great job highlighting here and here how tight budgets and the high costs of mass incarceration in Texas are forcing state legislators to reconsider "tough on crime" policies.  And a helpful reader sent me this remarkable article detailing how tight budget are impacting prosecutions in Ashtabula, Ohio:

Budget problems and layoffs have so crippled the Ashtabula County justice system that dozens of crimes committed at the Lake Erie Correctional Institution in Conneaut over the last three years, including felony assaults and drug offenses, have not been prosecuted....

Finances are so tight that people who call the office of Ashtabula County Prosecutor Thomas Sartini are greeted by this recording: "Due to budget restrictions, we are unable to answer phone calls between the hours of 12 and 4:30. Please leave a message and we will respond as soon as personnel are available."

I have blogged a lot about how states are really struggling to pay the bills coming due from two decades of tough-on-crime rhetoric and the resulting huge prison populations.  Just a few posts on this topic are linked below:

• Dollars and Sentencing
• Signs of the (crowded prison) times
• The (medical) costs of long sentences
• Another side to Texas justice
• The continued rehabilitation of rehabilitation

More on blogs and blawgs and an emerging medium

As I noted in this post last month, Lincoln Caplan has this piece in Legal Affairs magazine which uses this blog/blawg as a jumping off point for making observations about blogs and blawgs.  The main point of the piece seems to be that legal "blawgs" are different because we are not populist: Caplan concludes by asserting "while blawgs are blogs, they rarely have the populist touch that is supposed to make blogs blogs."

Today the blogsphere is talking up the Caplan piece.  Orin Kerr over at The Volokh Conspiracy here asks "who ever said that blogs are supposed to have the populist touch?".   Ernest Miller, taking a different approach in this extended post at Corante, asserts that three of the blawgs (other than this one) that Caplan mentions "are incredibly populist."

These contrasting reactions to Caplan's piece spotlight for me not only the quirks of a label like "populist," but also the excitement of working in a developing medium that is still being defined by its participants.  The constructs and customs of the blogsphere are still evolving, and I continue to enjoy watching how the authors and readers of blogs and blawgs are dynamically shaping and reshaping this fascinating little cyber-universe. 

Comments on this topic, from either the populist masses or elitist snobs, are welcome.

More editorial criticism of House's pursuit of mandatory minimums

In this prior post, I assembled potent quotes from a number of editorials  criticizing the House's passage of an anti-gang bill, HR 1279, which includes a number of mandatory minimums.  Another recent editorial, this one from the St. Petersburg Times, focuses criticism particularly on the House's embrace of mandatory minimum sentencing provisions:

Criminals who commit violent acts and those who repeatedly offend deserve long prison sentences. But experience with mandatory minimums at both the state and federal level has demonstrated they can be unfair. Politicians pass one-size-fits-all measures to appear tough on crime, but those who suffer the most are often the least culpable.

The organization Families Against Mandatory Minimums has documented a long list of cases where people have been severly punished for playing minor roles in crime.  Sentences of 10, 15, 20 years or more in prison are not uncommon for someone — often a wife or girlfriend of a drug runner — who is a nonviolent, first-time offender and an incidental participant in the crime.  Under minimum sentencing rules, judges have no capacity to fashion sentences to fit individual cases.  All the power is shifted to the prosecutor, who determines what offenses to charge.

These proposed laws have less to do with dispensing justice than with conservative Republicans' hostility toward the federal judiciary.  They represent the lingering anger of some GOP leaders over the Terri Schiavo matter and other court rulings.  The Senate should refuse to go along.

I have assembled below a few other recent posts with critical analysis of the House's recent sentencing work:

• The Fool(ish bills) on the Hill
• Criticisms of the House's passage of gang bill
• Still more criticisms of gang bill
• The judges speak out against HR 1528
• The litigation mess argument against HR 1528
• Still more voices speaking out against brewing Booker fix

Third Circuit joins non-retroactivity bandwagon

The Third Circuit on Tuesday in Lloyd v. US, No. 04-3549 (3d Cir. May 17, 2005) (available here) formally joined other circuits in ruling that "the rule of law announced in Booker" does not apply retroactively "to prisoners who were in the initial § 2255 motion stage as of the date that Booker issued."  Here are some key passages from the Lloyd decision's notable, though unsurprising, retroactivity conclusions:

Every court of appeals to have considered the issue has concluded that, whether denominated as the "Blakely rule" or the "Booker rule," that rule was "new."... Every federal court of appeals to have considered whether Booker's new rule constituted a "watershed rule" that would satisfy Teague's second exception has held that it does not and, thus, has held that Booker does not apply retroactively to cases on collateral review.  We join those courts....

It would be one thing if we were only dealing with Justice Stevens's opinion in Booker, which held the Federal Sentencing Guidelines unconstitutional because their mandatory nature required judges to find facts that increased sentences based on a preponderance of the evidence.  But in the opinion authored by Justice Breyer, the unconstitutionality of the Guidelines was remedied by excising the provision, at 18 U.S.C. § 3553(b)(1), that made their application mandatory. By creating an advisory federal sentencing regime, the Booker Court did not announce a new rule of criminal procedure that significantly increases the "certitude" or "accuracy" of the sentencing process.  As the Court of Appeals for the Seventh Circuit put it, Booker was not a "'watershed' change that fundamentally improves the accuracy of the criminal process" because defendants' sentences "would be determined in the same way if they were sentenced today; the only change would be the degree of flexibility judges would enjoy in applying the guideline system."

Reports on Booker resentencings

I have discussed in recent posts here and here some of the uncertainties concerning what exactly can and should happen during a post-Booker resentencing.  Today I see reports of two such resentencings which shed some interesting light on these matters:

• This article from Guam discusses the resentencing of former Republican Sen. Marilyn Manibusan on charges of extortion, conspiracy, wire fraud, money laundering and bankruptcy fraud.  Interestingly, the sentencing judge reimposed the original 71-month sentence, stating "it would be unfair to increase her original sentence," even though the federal prosecutor apparently argued "that Manibusan should receive an increased sentence of at least 90 months."

• This article from Hawaii discusses the resentencing of former City Councilman Andrew Mirikitani on charges of wire fraud, theft, bribery, extortion and witness tampering.  The sentencing judge here also reimposed the defendant's original sentence, which was 51 months, despite the defense's claims "that the 33 months [Mirikitani] has already served is 'sufficient, but no more than necessary' based on the facts of the case and his lack of criminal record."

Effective overview of the Booker fallout

The Times Picayune of Louisiana yesterday ran this quite effective review of the Booker fallout in the federal courts, and it led by spotlighting the disparities resulting from the three-way circuit split on Booker plain error issues (basics here and here).  The article had a few especially quotable quotes from federal district judges:

The case "left us with many unresolved issues," said U.S. District Judge Ginger Berrigan, chief judge of the Eastern District of Louisiana. "Trial and appellate judges will be working to sort out answers to these questions over the upcoming months and perhaps years."...

[U.S. District Judge Martin L.C. Feldman of New Orleans], who said he thinks the guidelines have made sure that white-collar criminals got more than just slaps on the wrist, agrees with the Supreme Court's conclusion in the Booker case that it's unconstitutional for judges to make fact findings that enhance a sentence. But Feldman called the court's remedy for fixing the problem "needlessly confusing."

"The Supreme Court's opinion says the remedy is that as long as the guidelines are advisory, and not mandatory, they can be followed," he said. "Well, that means a judge can do everything he wants as long as it's reasonable, including fact finding."  The court could have simply ordered that juries decide what information can enhance a sentence, Feldman said. "In my humble opinion, the remedy portion of the Booker decision is a great example of Medieval alchemy, because it changes everything and changes nothing," Feldman said.

There the 8th Circuit goes again

Another working day means another handful of Eighth Circuit sentencing opinions.  (My count suggests the Eighth Circuit may now have over 100 post-Booker dispositions under its belt; just some recent evidence of its busy ways are here and here and here and here and here).  Thankfully, the Eighth is the one circuit which provides official summaries of its dispositions on its opinion page, and I can thus provide a quick overview of its (fairly routine) dispositions today with the help of my friends cut and paste:

US v. Menteer, No. 03-1162 (8th Cir. May 17, 2005) (available here): On remand from the Supreme Court for further consideration in light of Shepard v. United States, 125 S.Ct. 1254 (2005). Armed Career Criminal Act sentence was imposed based on defendant's own admissions, and the court's earlier decision affirming defendant's sentence is unaffected by Shepard. [PUBLISHED] [Per Curiam - M. Arnold, Beam and Bye, Circuit Judges]

US v. Galvan, No. 04-1331 (8th Cir. May 17, 2005) (available here): District court did not abuse its discretion in limiting defendant's re-cross examination of a witness; expert testimony on meth production was not redundant and was relevant; district court did not err in when it instructed the jury using only the language of the charging statute - 21 U.S.C. Sec. 841(c)(2); no error in imposing enhancement for reckless endangerment based on defendant's attempt to flee police custody or in denying a downward adjustment based on Guidelines Sec. 2D1.1(b)(2); remand under Booker is not required. [PUBLISHED] [M. Arnold, Author, with Bright and Fagg, Circuit Judges]

US v. Romero, No. 04-1806 (8th Cir. May 17, 2005) (available here):  District court did not abuse its discretion in sentencing defendant at the top of the sentencing range. [UNPUBLISHED] [Per Curiam - Murphy, Fagg and Benton, Circuit Judges]

Another FSR issue heading to press

I am pleased to report that a new Federal Sentencing Reporter issue is headed to press.  This FSR issue, Volume 17, Number 3, is principally concerned with criminal history matters and was in the works before Blakely and Booker came along (although those cases find mention in the final product.)   

My co-editor Nora V. Demleitner was in charge of this issue, and her introductory essay is entitled "Constitutional Challenges, Risk-based Analysis, and Criminal History Databases: More Demands on the U.S. Sentencing Commission."  That essay, along with the Table of Contents for the full issue, are available for download below. 

Relatedly, details about FSR's three recent Blakely issues are here and here and here, and the journal can be ordered here and accessed electronically here.  In the coming months, the Federal Sentencing Reporter will be providing lots more Booker and Blakely coverage, so stay tuned.

Download 173_fsr_cover.pdf

Download demleitner_173_ed_obs.pdf

Fascinating circuit cases revealing unique victim perspectives

This past weekend I spotlighted in this post a number of newspaper accounts of quite interesting federal sentencing cases.  On Monday, interesting cases cropped up in the circuit courts through the Seventh Circuit's decision in US v. Beith, No. 03-2530 (7th Cir. May 16, 2005) (available here) and the Eighth Circuit's decision in US v. Rodriguez-Cebalos, No. 04-3390 (8th Cir. May 16, 2005) (available here).

Both Beith and Rodriguez-Cebalos are so factually and legally dynamic, I could readily imagine teaching a whole course around these decisions.  (There are issues in these cases which cut across all 11 chapters of my sentencing casebook.)   And though so much could be said about these decisions, I will focus on the interesting victim angles in the cases (an issue I find quite interesting, as detailed in this post with links).  Both Beith and Rodriguez-Cebalos reveal that, if victims are allowed to be involved in sentencing proceedings, they might sometimes provide evidence and arguments to mitigate, rather than aggravate, a defendant's sentence.

Beihl involves the sentencing of "the former principal of Liberty Baptist Bible Academy, who pled guilty to fleeing from Indiana to Nevada so that he could continue his illicit sexual relationship with his eleven-year-old student."  Though it does not appear the defendant's victim directly provided evidence for the sentencing, her role in the offense suggests she might have wanted to plead for leniency on the defendant's behalf.  And in Rodriguez-Cebalos, which involves sentencing for illegal re-entry, the victim in a prior offense testified at a sentencing hearing in order to explain that the defendant's prior conviction was not as serious as it seemed.

Rodriguez-Cebalos is also notable because the Eighth Circuit found Booker plain error satisfied, in part because, at an initial pre-Blakely sentencing, the sentencing court had departed downward (although on a ground later declared invalid by the Eighth Circuit).  In the course of its ruling now on Rodriguez-Cebalos, the Eighth Circuit had this amusing explanation of the need for a third sentencing:

To say the least, the Guidelines landscape under which district courts operated for nearly two decades changed drastically from the time Rodriguez-Ceballos pled guilty on December 20, 2002, to the time the Supreme Court decided Booker on January 12, 2005.  During the course of the monumental sea change occurring in the Guidelines area, the district court was tasked with sentencing Rodriguez-Ceballos.  Indeed, the district court was required to hit a moving target, and, through no real fault of its own, missed both times.  Now that Booker and Pirani have steadied the target, we believe the district court should get a third shot at sentencing Rodriguez-Ceballos, this time under the advisory Guidelines system.

Justice Kennedy reiterates his ABA comments on federal sentencing

I see, thanks to Mike at Crime & Federalism (to whom I also owe thanks for these nice comments), that law.com has available this piece reporting on comments concerning federal sentencing made by Justice Anthony Kennedy last week at the 11th Circuit Judicial Conference.  Here are the highlights:

[Kennedy] said he and his judicial colleagues are working with Congress to rehire some of the 1,300 probation and sentencing officers who were laid off last year due to budget cuts. 

He said these officers are needed in the wake of the Supreme Court's ruling in January that struck down the use of mandatory federal sentencing guidelines. "The only thing worse than sentencing under the guidelines is sentencing without the guidelines," he said, calling sentencing "the hardest thing judges do."

In a comment that won't endear him to DeLay and other conservatives, Kennedy suggested that criminal sentences in the United States are too long, noting that U.S. sentences are eight times longer than those in Western Europe. "We have to rethink the sentencing system," he said. "We have 180,000 prisoners in the California state system alone."

Asked about a bill just passed by the House to impose tough mandatory minimum sentences for gang-related offenses, Kennedy said he "strongly opposes" mandatory minimums, saying they lead to overly harsh sentences.

Orin Kerr at The Volokh Conspiracy rightly notes here that these potent quotables actually are just a reiteration of points that Justice Kennedy made two years ago in this potent speech to the American Bar Association.

Judge Cassell on fast-track and family circumstances

When I saw news last week, as detailed here, that US District Judge Paul Cassell had departed based on family circumstances and also expressed concern that some Utah defendants receive longer sentences than those charged with identical crimes in districts with fast-track programs, I thought we might soon see another thoughtful post-Booker opinion from his chambers.  And sure enough, US v. Perez-Chavez, No. 2:05-CR-00003PGC (D. Utah May 16, 2005), is another great Cassell effort (which can be downloaded below).  Here is the introduction:

Should a defendant arrested in Utah serve a longer prison term than a defendant arrested in Arizona for the identical crime?  That is the issue pending before the court as a result of various "fast-track" programs for the rapid disposition of illegal re-entry cases. Under these programs, a defendant arrested for illegal re-entry in the District of Arizona, the Southern District of California, or other "fast-track" jurisdictions who enters a rapid guilty plea is given a shorter sentence than otherwise called for by the Sentencing Guidelines. Because this sentence disparity is troubling, the court has raised the issue of whether the defendant here — Mr. Raul Enrique Perez-Chavez — should be eligible to receive the same shorter sentence that would result in a fasttrack jurisdiction.

Having received capable argument from both sides on this question, the court reluctantly concludes that it cannot vary from the Guidelines and give Mr. Perez-Chavez the shorter sentence he would receive in Arizona and other fast-track districts.  To do so would be to ignore the recent congressional directive, contained in the PROTECT Act, that only the Attorney General can authorize fast-track programs.  This command is now reflected in the Sentencing Guidelines themselves, which provide for the downward adjustments under Attorney Generalapproved fast-track programs, but not elsewhere.  Moreover, while these programs clearly result in sentencing disparity between similarly-situated offenders, they also assist the Department of Justice (and the courts) in quickly processing large numbers of illegal re-entry cases.  Congress could reasonably conclude that these benefits outweigh the attendant disparities in sentencing. Finally, nothing in the Constitution prohibits different sentences resulting from fast-track programs, as these differences arise from prosecutorial discretion rather than invidious discrimination.  For all these reasons, the court will apply the Sentencing Guidelines in this case and not vary downward to attempt to match fast-track dispositions that might be available in other jurisdictions.

At the same time, however, the court encourages the Justice Department to attempt to minimize the disparities caused by these programs. In the court's view, the Department should consider whether to extend these programs across the country rather than applying them in a few selected districts.  Based on the information that has been presented in this case, it is hard to see any real justification for having fast track programs in only selected jurisdictions.

While a fast-track adjustment is not appropriate in this case, Mr. Perez-Chavez has also moved for a downward departure based on the extraordinary family circumstances that prompted his illegal re-entry into the country.  This argument is well-founded and the court will accordingly depart downward from the Guidelines for this reason.

Download cassell_fasttrack_opinion.pdf

The Fool(ish bills) on the Hill

Sentencing song parodies (such as the hysterical Desparado or Take a Walk on the Blakely Side) should not be confined only to describing judicial developments.  Thus, today I have a particular Beatles song in my head as I think about some recent legislative developments.  Let me just hum a few bars:

Day after day, (not quite) alone on the Hill

The men with the foolish bills are proposing more still

But nobody should want to pass them

They should see that they are just foolish

This is hardly up to the standards of the folks at Begging the Question, but I have to find some way to express frustrations about the bills making their way through the House these days.  Lately I have been spotlighting the extreme gangs bill (HR 1279) that passed the House last week (and has already garnered considerable criticisms from many quarters as noted here and here).  Helpfully, the NACDL has created this webpage which assembles materials and criticisms of HR 1279, and I now can provide (for downloading below) the thorough and persuasive 14-page dissent authored by the Democratic staff of the House Judicial Committee regarding the bill.

But what has moved me to song was this post at TalkLeft, which spotlights the terrible drug sentencing provisions of H.R. 1528, the drug sentencing bill which also includes the Booker fix provisions. (Prior discussion and lots of commentary on this bill can be found at links here and here, and details about letters in opposition to H.R. 1528 are discussed here and here and here.)  The TalkLeft post does a great job of spotlighting some of the extreme aspects of the drug bill; it also has me pondering whether it is worse if supporters of the bill just do not know, or just do not care, about the extreme reach of the bill.

Download gang_bill_dissent_from_house.pdf

Someone should start an AEDPA blog

After a year of blogging, I know I cannot keep up with all of the dyanmic sentencing stories that are always developing in state and federal systems.  I also know that, one way or another, most of these stories end up in federal habeas corpus litigation; the broad field of sentencing is, both directly and indirectly, profoundly impacted by the law and policy of federal habeas corpus review.  Consequently, true sentencing gurus probably also need to be true habeas gurus.

But, especially given all the complicated intricacies of the AEDPA (the now decade-old modern federal habeas statute), I know I will never be a true habeas guru.  Proof of that fact comes from recent federal circuit opinions, which address a range of AEDPA habeas issues, that I will never find the time to read closely.  The case that has me AEDPA-addled today is the Third Circuit's 50+ pages of en banc discussion of AEDPA time-limits in US v. Bendolph, No. 01-2468 (3d Cir. May 16, 2005) (available here).  Also, I see posts from other bloggers discussing other notable sentencing cases with AEDPA issues: Tom Freeland at Appellate Law & Practice has this post about a 5th Circuit case involving sex offender registration; Mike at Crime & Federalism has this post about an 8th Circuit death penalty case; and Jonathan Soglin has more here on the Ninth Circuit's case questioning AEDPA's constitutionality.

In short, I think I and many other would benefit greatly from effective blogsphere coverage of AEDPA issues.  Perhaps such a blog already exists, in which case this post can become a long plug; if one doesn't, this post can perhaps serve as encouragement for its development.

The Monday Booker GVR report

As well covered over at the SCOTUSblog, today's major Supreme Court action was outside the arena of criminal law.  [UPDATE: It bears noting, however, that the Court has decided through its cert grant in a Georgia case, as explained in this AP article, to use the prison context to continue its federalism jurisprudence surrounding the Americans with Disabilities Act.  This development reinforces my observation in this post about the frequent intersection this SCOTUS term of criminal justice, constitutional law, federalism and hot button issues.]

But, of course, Monday morning with the Court in session does mean more Booker-inspired GVRs.  As detailed in the comments to this post, the running count of these GVRs was 688 before today, and this morning I count 28 more on this order list. 

Interestingly, I see that in today's group of GVRs is Nunez v. US, a case from the Eleventh Circuit that Tom Goldstein at SCOTUSblog had identified here as a case the Court might grant for regular argument because it raised Booker pipeline issues.  I thus surmise that the Supreme Court is content to allow such issues to continue to percolate in the lower courts.  But as I detailed in this extended post, Booker pipeline issues are only one of many items that appear on my list of Blakely/Booker question that I think urgently merit the Supreme Court's attention.

Week in review and preview

Though the press is focused on the looming filibuster showdown (consider How Appealing's coverage here and here), I am focused on a big sentencing week ahead.  The Supreme Court is back in action, which brings the prospect of notable new opinions and cert. grants (or at least more Booker GVRs). 

Also this week, as detailed here, I am expecting an interesting Booker opinion from District Judge Paul Cassell.  We might also see more legislative sentencing developments on the Hill.  And, of course, we are still awaiting an en banc ruling on Booker plain error from the Ninth Circuit in Ameline, as well as state supreme court Blakely decisions from California, New Jersey and maybe Tennessee upon reconsideration.

Of course, we are just coming off another big sentencing week.  Some early highlights from last week were assembled in this post, and below I have organized and linked some later developments:

LEGISLATIVE DEVELOPMENTS AND COMMENTARY

• Criticisms of the House's passage of gang bill
• Still more criticisms of gang bill

DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY

• Another potent (and hilarious) opinion from Judge Kopf
• Report of a Judge Cassell departure for family circumstances
• Intriguing federal sentencing stories
• Report on today's Enron barge sentences

OTHER BOOKER/BLAKELY DEVELOPMENTS AND COMMENTARY

• Reviewing the status of restitution
• May day Booker resource updates
• Notable developments in Supreme Courts
• Important Booker points from the ever-busy Eighth Circuit

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• The sagas of death penalty volunteers
• More on death penalty volunteers from the Volunteer State
• Ross execution hours away... (and now completed)
• Notable developments concerning capital processes

Still more criticisms of gang bill

Last week in this post, I detailed some of the emerging criticisms of the House's passage of an anti-gang bill, HR 1279, which includes a number of mandatory minimums.  In recent days I have seen, in addition to the Miami Herald's strong editorial against the bill, a few more editorials expressing displeasure with the House's political posturing. 

• From the Long Beach Press-Telegram: "[I]t's incredibly naive and simplistic to think that longer prison sentences are the solution and intervention programs are folly.  Until Congress starts coming up with real solutions, gangs will continue to flourish.  Communities won't be served by tough talk from self-serving politicians: they need more money for local anti-gang efforts, inner-city jobs programs, education, mentoring for at-risk youth, and other community programs that can and do make a difference."

• From the Kentucky Courier-Journal: "[The bill] also sets mandatory minimum sentences, which shows that the House — despite a Supreme Court ruling earlier this year, and the public reaction to its interference in the Terri Schiavo case — remains determined to prevent judges from actually judging.  The truth is, there's no evidence that anyone in law enforcement or the courts has been taking gang activity lightly — including all the Republican governors and GOP-dominated state legislatures that have been making state laws recently."

I also noticed that FAMM has created this interesting scorecard indicating who voted for and against HR 1279 and FAMM is encouraging folks to "send an email to thank or scold [your representatives] for their vote."

UPDATE:  I now see two more potent editorials which also see through the rhetoric being espoused in support on HR 1279:

• From the Washington Post: "The so-called 'Gangbusters' bill [includes] terrible ideas that ought to be rejected if and when the Senate considers similar legislation....  Mandatory minimums ... permit no attention to the individual circumstances of the convicts — except to impose harsher penalties still.  Such sentencing regimes at the state and federal levels have been overwhelmingly harmful.  Members of Congress may be keen to deprive federal judges of the new discretion the Supreme Court has given them.  But this is the worst possible answer."

• From the Daytona Beach News-Journal: "The Sentencing Commission ... disagrees with minimum sentences.  It considers them inefficient precisely because their dragnet approach ignores individual, mitigating circumstances and ends up overloading both the court and penal systems. But just as congressional anti-crime sprees are often less about reducing crime than about appearing to be tough on crime for election season's spotlight, fresh mandatory sentences are less about deterring crime than about posturing against the judiciary.  Otherwise, the bills wouldn't be so bare on constructive initiatives such as gang intervention programs on the streets, reform programs for gang members in prison or transition programs for felons leaving prison.  Clearly, the will of Congress isn't there."

(Belated) blogiversary

It was a year ago yesterday when my first post appeared (this post is number 1645, in case you are scoring at home).  Of course, when I got this blog up-and-running last May, I never expected the Supreme Court and other institutions would do so much to make the past year in sentencing law and policy so dynamic and interesting (although I must note, with much pride, that in this pre-Blakely post I did predict that Blakely might be a blockbuster). 

I also never expected I would make so many friends through this medium and that I would learn so much from fellow bloggers and readers about sentencing (and other matters).  I am profoundly grateful for all the help, encouragement and thanks that I have received from so many, and I feel quite lucky to have been in the right (cyber)place at the right time.

Reviewing the status of restitution

I have noted in a number of prior posts the growing importance of restitution orders in state and federal courts and the uncertainty of Blakely's applicability to such orders (examples here and here).  Shedding light on this important topic is a note about to be published in the Fordham Law Review that the author, Brian Kleinhaus, has made available for me to post.

This note, which is entitled "Serving Two Masters: Evaluating the Criminal or Civil Nature of the VWPA and MVRA Through the Lens of the Ex Post Facto Clause, the Abatement Doctrine, and the Sixth Amendment," is available for downloading below.  It reviews the history of restitution and the two main federal restitutionary statutes, as well as the application of Blakely/Booker to federal restitution. Here is an excerpt providing highlights:

This Note argues that restitution is, and always has been, an additional method of punishing defendants that also increases society's recognition of the harm done to the individual victim of the crime, and that therefore restitution orders should be universally understood as criminal punishment. The legislative history of the VWPA and MVRA lends significant support to this Note's contention that Congress was aware of, and agreed with, the punitive and compensatory intent of restitution. The recent efforts by some federal courts to separate the underlying principle of restitution as punishment from its co-underlying principle of restitution as compensation have led to judicial decisions that are inconsistent with these original twin aims. Therefore, this Note asserts that restitution should never be separated from its penal, rehabilitative core, even if it also has a compensatory core as well.

Download kleinhaus_note_on_restitution.pdf

More on death penalty volunteers from the Volunteer State

Seems like it was a banner week for death penalty volunteers.  In addition to the two cases discussed in this post, I have heard from an always helpful reader that the Tennessee Supreme Court this past Thursday issued a major ruling concerning a death penalty volunteer who changed her mind about waiving post-conviction appeals.  (Of course, as the reader reminded me, this is not why Tennessee bears the Volunteer State nickname: this "nickname originated during the War of 1812, in which the volunteer soldiers from Tennessee, serving under Gen. Andrew Jackson, displayed marked valor in the Battle of New Orleans.")

The ruling of the Tennessee Supreme Court in Pike v. State, No. E2003-00766-SC-R11-PD (Tenn. May 12, 2005) (available here), is quite interesting and nuanced (and seems a lot sounder than the court's work in its Blakely ruling in Gomez which is discussed here and questioned here.)  Here is the court's description of its work in Pike:

This appeal presents two determinative issues: (1) whether post-conviction review of a death sentence should be mandatory and should proceed over the objection of a competent death-sentenced inmate; and if not, (2) whether, and under what circumstances, a competent death-sentenced inmate may revoke her waiver of post-conviction review. We conclude that post-conviction review is not mandatory and may be waived by a competent death-sentenced inmate. We also conclude that a competent death-sentenced inmate may revoke a waiver of post-conviction review so long as the revocation occurs within thirty days of the trial court’s order permitting the inmate to waive postconviction review. Our holding is limited to death-sentenced inmates who seek to revoke an initial waiver of post-conviction relief. Our holding does not apply to death-sentenced inmates who attempt to manipulate and to delay the judicial process by repeatedly seeking to waive and thereafter to reinstate post-conviction review.

The sagas of death penalty volunteers

The Connecticut Law Blog provides in this post a roundup of many newspaper stories in the immediate aftermath of Michael Ross's execution early Friday morning.  I find especially interesting discussions, in articles here and here and  here, concerning whether this execution will impact the state of the death penalty in Connecticut or elsewhere in the region. 

Most of the post-Ross analysis properly notes that Ross's status as a "volunteer" distinguishes his case and its possible impact.  However, it is important to note that the second (and third and fourth...) execution in a state always gets less attention and scrutiny than the first.  When Ohio had its first few post-Furman executions in the late 1990s, I would get dozens of media calls in the weeks leading up to an execution date.  Now that executions have become more common in the state, there is barely any media coverage to be found.  Similarly, consider that, as detailed in this article, Oklahoma also executed a person on Friday, but that execution received barely any press attention (even though George James Miller maintained his innocence and was convicted and sentenced to die based on mostly circumstantial evidence).

In another interesting story involving a death penalty volunteer, I see from Howard Bashman here that the Indiana Supreme Court late last week continue to hold a former death penalty volunteer to the legal choices he made before he changed his mind about pursuing appeals.  This AP story provides basic background on this interesting ruling which reaffirms that the defendant's petition for post-conviction relief is now time-barred.  The opinion also asserts that that finding the defendant's petition time-barred does not deny "constitutional rights to due process, to equal protection, to open access to courts, or to be free from cruel and unusual punishment."