Sentencing Law and Policy

Great media coverage of the post-Booker world

A brief on-line moment before joining a P-rade tradition allows me to highlight two recent media pieces providing accounts of the post-Booker world.  The NPR story here covers the broad story quite effectively, and the ABA e-journal story here is focused on the interesting issue of fast-track disparity in the post-Booker world.

Going back for a long weekend

As detailed in this post, while Booker-mania wraps up today in San Francisco, I am going back to Old Nassau for a long weekend of festivities.  Though I hope to be on-line every so often, blogging will likely be light for the next few days.  In the meantime, we can all catch up on the endless reading list (which this Columbia Law Review issue will lengthen), as well as all of this past week's developments:

DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY

• Data junkies rejoice! New post-Booker data from the USSC
• Another potent district court Booker opinion (from my backyard)
• Fanfan gets a (long) guideline sentence
• More more details details on Fanfan
• Huge Booker conference in SF (and another data call)

CIRCUIT COURT BOOKER DEVELOPMENTS AND COMMENTARY

• Busy Booker day in the circuits
• 6th Circuit discusses post-Booker requirements
• Can a variance for "co-defendant disparity" be reasonable?
• Updates, updates and the need for Booker issue memos

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• SG is seeking cert. on plain error!
• Follow-up SCOTUS filing on plain error
• A win for one capital defendant, an interesting DIG, and more Booker GVRs
• Background and blog commentary on Deck and Medellin

STATE BLAKELY DEVELOPMENTS AND COMMENTARY

• Colorado Supreme Court applies Blakely!
• Learning from Lopez
• What Lopez can teach New Jersey
• Interesting Blakely developments from Indiana, Minnesota and Oregon

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Another potent editorial against mandatories
• DOJ planning national sex offender registry
• Clemency dynamics in Arizona and nationwide

Interesting Blakely developments from Indiana, Minnesota and Oregon

With new Booker data and the prospect of the federal plain error issue going up to the Supreme Court, it is easy to forget about all the Blakely excitement in the states.   But this week alone there has already been notable Blakely developments in at least three states:

From Indiana, we get a fascinating ruling in Williams v. Indiana, No. 49S02-0505-CR-242 (Ind. May 25, 2005) (available here), in which the Indiana Supreme Court uses its "review and revise" power to essentially circumvent a Blakely problem.  The sentence below involved a Blakely-problematic enhancements on two counts of conviction, but the Indiana Supreme Court decided it could lawfully impose the same sentence by instead ordering consecutive sentences (which, in Smylie, this same court concluded raised no Blakely concerns).  This Williams decision is thus a remarkable study in form over substance (and I will be eager to see what Michael Ausbrook over at INCourts thinks of this one).

From Minnesota, I have news from an always helpful North Star State correspondent that the state legislature passed legislation to "Blakely-ize" the Minneosta guidelines (following, I believe, the recommendations of the Minnesota Sentencing Guidelines Commission).  The full bill is here, though it takes a sharp eye to see the key jury trial provisions.

From Oregon, I have news from an always helpful Beaver State correspondent that the Oregon Supreme Court issued some orders today with Blakely implications.   As detailed toward the end of this list of actions, the court (1) issued "alternative writs of mandamus" in two cases, State v. Upton, S52316, and State v. Sawatzky, S52332, to explore whether a trial court has authority to empanel a sentencing jury, or else to submit certain facts to the jury in the guilt phase, where those facts are necessary to establish the basis for an upward departure, and (2) granted the State's petition for review in State v. Gornick, S52252, A121042, in which the court will explore "plain error" concepts in deciding how to address a Blakely issue not raised below.

Follow-up SCOTUS filing on plain error

As detailed here, late last week the Solicitor General in Rodriguez v. US, the big plain error decision coming from the Eleventh Circuit, urged the Supreme Court to grant cert on the Booker plain error issue.  Rounding out the (non-)debate over whether SCOTUS should take up this issue, the lawyers representing Rodriguez today filed a cert reply brief in the Supreme Court.  That brief, which can be downloaded below, has this introduction:

The Government acknowledges the need for certiorari in this case, and offers three compelling reasons in support of that conclusion: (1) "There is a clear and deep multi-circuit conflict on the proper analysis of plain Booker error"; (2) the eleven circuits to address the issue "have adopted three different broad approaches, with further variations within each broad category"; and (3) "[s]ome of the differences among the courts of appeals illuminate basic disagreements about the proper approach to plain-error review" that will potentially recur in other contexts.

These critical points advanced by the Government merit elaboration beyond what the Government has said. First, although the circuit split at issue applies principally to cases in which the sentences were imposed before Booker, that category comprises massive numbers of cases; indeed, this Court alone has granted, vacated, and remanded more than 700 cases in light of Booker, almost all of which are likely to present plain-error issues.  Second, allowing vast differences in the treatment of similarly situated defendants based solely on the Circuit in which sentencing occurs is repugnant to the Sentencing Reform Act's central goal of eliminating such disparities.  Third, the divergent court of appeals decisions reflect basic and significant disagreements concerning plain-error analysis that are certain to recur in this and other contexts, including differences over what constitutes a "reasonable probability" of a different result and over whether a court of appeals may delegate the task of assessing that probability to the district court.

Download rodriguez_scotus_reply.pdf

Data junkies rejoice! New post-Booker data from the USSC

Sure enough, as predicted and promised, this afternoon has brought a wealth of new post-Booker sentencing data from the US Sentencing Commission.  The USSC's Booker page describes this latest data report as "an extensive set of tables presenting data on post-Booker cases received, coded, and edited as part of the Commission's post-Booker project.  The numbers are prepared using data extracted at close-of-business on May 5, 2005."

As I was hoping, the new data is broken down with a lot of specificity in this 39-page pdf file.  I am sure there are lots of interesting stories to be found in all this data, and I hope to mine and discuss notable data tidbits as I find them.  Readers are, of course, encouraged to do the same in the comments.

UPDATE: Perhaps the only datum that quickly jumps off these pages is the evidence of a decline in the number of "traditional" judicial downward departures after Booker.  According to this chart from the USSC's FY 2003 data, the judicial "other downward departures" rate was 7.5% before Blakely and Booker came along.  But this latest post-Booker data run reports the judicial downward departure rate at only 2.7% in the wake of Booker.  Of course, this does not mean sentencing is getting tougher; rather it just reveals that a lot of what used to be judicial departure work is now being done through downward Booker variances, which the latest data shows occurs in 10% of all cases. 

For reasons discussed in prior posts here and here, this migration from traditional departures to variances is not all that surprising.   It also raises an interesting question as to whether the USSC or the appellate courts ought to try to counter this migration, or instead embrace the prospect of having "traditional" judicial downward departures evaporate after Booker.

Updates, updates and the need for Booker issue memos

I have heard from two sources that we are to be getting updated post-Booker numbers from the US Sentencing Commission by the end of the day today (at this page, I presume). 

In the meantime, I am pleased to see that the USSC has recently updated, through May 13, this circuit-by-circuit review of "Selected Post-Booker Decisions (May 2005)." According to the USSC's description, this document "explores substantive post-Booker circuit court opinions and highlights representative opinions from some district courts," though it "is not meant to be exhaustive of all decisions discussing the varied issues raised by the Booker opinion."  Relatedly, I see that Fran Pratt's latest update of her terrific (and now massive) outline of post-Booker decisions, accessible at this link, is now current through decisions of May 18.

Though both these resources are great, I am coming to think it would be especially valuable to have issue-specific post-Booker memos, i.e., individual documents devoted to particular topics such as burden of proof, crack sentencing, fast track, etc.  If anyone knows of such memos (or starts working on them), I would be grateful to hear about the efforts.

What Lopez can teach New Jersey

In this post, I suggested that there was a lot to learned from the Colorado Supreme Court's recent Lopez ruling applying Blakely in that state (basics here).  Apparently agreeing with the sentiment, the Public Defender of New Jersey has submitted a letter brief to the New Jersey Supreme Court detailed how Lopez "flatly rejected" the sorts of arguments being put forward by the NJ Attorney General to try to spare New Jersey's sentencing system from Blakely. 

A copy of that letter brief can be downloaded below.  Also the key Blakely cases before the NJ Supreme Court are described briefly and linked here, and additional background on Blakely in New Jersey can be found in prior posts here and here and here.

Download nj_supp. Letter on Lopez.pdf

More more details details on Fanfan

I recently received a detailed report on Ducan Fanfan's recent resentencing (background here and here) from lawyer who attending the hearing.  With permission, I post his account of the resentencing:

Judge Hornby, upon the government's request, resentenced Ducan Fanfan. You may recall that Fanfan previously received a sentence of 78 months. At the original sentencing on 6/28/04, Judge Hornby found by a preponderance that the guideline range was 188-235 months.  However he also applied the teachings of Blakely and because "enhancements" had not gone to the jury he ruled that the "unenhanced" range was 63 to 78 months and sentenced at the top of that range. Today the government sought a sentence at the high end of the 188-235 month advisory guideline range. The judge instead went with the "middle of the range" resulting in a 210 month sentence.

The government went first arguing no ex post fact violation as ex post facto applies to statutory changes as it "limits the power of the legislature" and does not apply to this situation. Citing Rogers and Bouie.  Recently the courts in Duncan (11th Cir.) and Gray (SD WV) had found no ex post facto problems. The Supreme Court has sent the case back for the Court to sentence under the advisory guidelines and the court should do so.

Defense counsel Rosemary Scapicchio and Bruce Merrill pushed very hard and well on the ex post facto issue. They made all of the points we have discussed in the conferences and list-serves.  Judge Hornby asked how he could avoid the language of the mandate.  Defense points out that the Booker court does not mention ex post facto issues as was not before them.  Part 1 of Booker applies because it is Constitutional in scope. The Court's original sentence met that constitutional standard.  Miller v. FL found ex post facto concerns are implicated by every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed making the maximum sentence for guideline purposes the top of the applicable guideline range. Applicable guideline range here is the un-enhanced 6th amendment allowable range: the 78 months previous imposed. If the "remedy" portion of Booker means Fanfan is now facing a higher sentence than he was when sentenced that is ex post facto. The law grants advantageous constitutional benefits to defendants even when other areas of a decision expand potential criminal liability. (Marks v. US). The Booker ruling satisfies both the "unexpected" and "indefensible" prongs of the ex post facto test from Rogers. Defense argued under 3553 the Court should consider the crack/powder disparity and the recent disparity finding decision of Judge Ponsor (D. MA).

Judge recessed and after 15 minutes returned. He rejects ex post facto argument. The portion of Booker which deals directly with Fanfan is in part two, the remedy opinion. For the majority J. Breyer writes, …"Fanfan's sentence does not violate the 6th Amendment.  Nonetheless, the government (and the defendant should he so choose) may seek resentencing under the system set for in today's opinions.  Hence we vacate the judgment of the District Court and remand the case for further proceedings consistent with this opinion" (emphasis added). Judge Hornby found this language to mean he was directed by the Supreme Court to apply all of the opinion, both part 1 and the part 2 remedy.  He went on to say that the defendant is free to take the case back up but he is "just the District Court" and he must follow the Supreme Court's instructions.  He added that he would rule against the ex post facto argument on the merits but gave no analysis or reasoning.  He then chose the middle of the advisory guideline range, found nothing that increased or decreased that, no reason to vary looking at 3553, and imposed 210 months followed by 5 years supervised release.

This helpful correspondent also was kind enough to send me the public filings from the parties in the case, and these briefs can be downloaded below.  They make for very interesting reading.

Download fanfan_defense_sentencing_memo.pdf

Download fanfan_gov_sentencing_memo.pdf

Another potent district court Booker opinion (from my backyard)

In an opinion coming from my part of the world, US District Judge Algenon Marbley in US v. Coleman, No. 2:02-cr-00130 (S.D. Ohio May 24, 2005) (available for download below), addresses an array of important post-Booker issues, most notably relating to the burden of proof for enhancements and the status of so-called "acquitted conduct."  This is another must-read, which thoughtfully draws on a number of prior must-reads on these issues.

Download coleman_sentencing_memorandum.pdf

UPDATE: Having now had a bit more time to review the opinion, I should stress that Coleman covers the extant post-Booker caselaw on burden-of-proof issues as thoroughly as any decision I have seen.  And here is Judge Marbley's main conclusion on this issue:

This Court believes that all enhancements should be determined by beyond a reasonable doubt, but, in light of [Sixth Circuit decision] Yagar's dicta and the multi-circuit consensus, the Court will continue to review enhancements, with the exception of those relating to acquitted conduct, by a preponderance of the evidence.

At sentencing, acquitted conduct should always be considered using a reasonable doubt standard; otherwise, a defendant's Sixth Amendment right to a jury trial is eviscerated.... This Court recognizes its power to enhance Defendants' sentence for uncharged conduct, as such conduct was neither authorized nor unauthorized by the jury, but concludes that considering acquitted conduct would disregard completely the jury's role in determining guilt and innocence....

Additionally, consideration of acquitted conduct skews the criminal justice system's power differential too much in the prosecution's favor.... This "second bite at the apple" allows the government to perfect its case and ready it for re-litigation at the sentencing "mini-trial."

How sentencing consultants operate

Earlier this month, The Recorder published a fascinating profile of sentencing consultant Dayle Carlson that indirectly provides a great primer on effective sentencing advocacy.  The author of the piece, Jeff Chorney, was able to secure permission for me to post the article, which can be downloaded below.  Here is a taste:

Carlson says there no magic behind his work.  Over the years he has developed a structured interview to get at useful information.... "The fundamental purpose … is to change a defendant from being a defendant to being a person," he said....

Carlson, 58, says that what keeps him going are the success stories he's seen through his work with drug and alcohol treatment centers.  He has an unflagging faith in people's ability to change.  It sounds bleeding heart, but it hasn't cost him credibility.  He says the key is staying objective in his evaluations.

"My theory is you gotta deal with the dark side as well as the bright side [of defendants]," he said.  Sometimes the best way to do that is to confront the negatives head-on. "I fight sometimes with lawyers about what we can do," Carlson said. "My philosophy is that if you push that envelope too far, you push yourself into irrelevance.  If they get too far from what is realistic, the lawyer loses credibility."

[San Francisco solo Arthur] Wachtel said Carlson does a "beautiful job" balancing the concerns that compete for a judge's attention, including rehabilitation, public protection and likelihood of recidivism. "He's able to give context to violations of the law," Wachtel said. "Giving them context results in a more rational, reasoned response, which translates into a better sentence."

Download mitigation_expert_profile.DOC

Of interest around the blogsphere

I see a number interesting sentencing-related items on other blogs that merit attention:

• Grits for Breakfast has the news here that an "overhaul of Texas' probation system sailed through the Texas Senate yesterday and is now headed to the Governor."

• INCourts discusses here three interesting Blakely decisions from the intermediate appellate courts in Indiana.

• Steve Sady at the Ninth Circuit Blog has this extended analysis of two new circuit cases which "provide critical pieces of the post-Shepard logic that requires re-interpretation of the Armed Career Criminal Act and Section 922(g)."

• Mike at Crime & Federalism in this post astutely spots a "Crawford at sentencing" issue in a recent Eighth Circuit decision.

• Will Baude at Crescat Sententia in this post notices, as did Orin Kerr at The Volokh Conspiracy, that Justice Thomas seemed quite willing in Deck, when a death sentence was at issue, to disregard originalism based on changed circumstances.

Fanfan gets a (long) guideline sentence

According to this AP story, U.S. District Judge D. Brock Hornby gave Ducan Fanfan a sentence of 210 months at his resentencing today, which was "near the middle of the guideline recommendations of 188 to 235 months."  Thus, as explained more fully in this post, neither Fanfan or Booker really benefited from their "victory" in the Supreme Court.

UPDATE:  Additional coverage of Fanfan's resentencing comes from the Portland Press Herald.

Huge Booker conference in SF (and another data call)

Tomorrow brings the start, in San Francisco, of the Fourteenth Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association.  Basic details about the event are here at the USSC's webpage, and the whole event brochure is available here. 

As detailed in the brochure, this Seminar is bringing together many, many folks who are really in-the-know about Booker.  Because of a prior commitment, I am going back to Old Nassau instead of heading out to the Bay City.  (I am quite bummed about missing this big Booker event, but I am hopeful that folks attending the Seminar might send me reports about interesting developments.)

The development I am most eagerly awaiting is the release by the US Sentencing Commission of up-to-date post-Booker data.  It has now been almost a full two months since the USSC's last data run, and that likely means new numbers will include a lot more sentencings.  Also, I am hoping that the USSC might soon provide more specific data than just a "total cases" report; as discussed here and here and elsewhere, I would really like to start seeing some post-Booker circuit data and also some district-by-district or crime-by-crime parsing of the district court data.

Especially now that the SG has urged the Supreme Court to grant cert on the Booker plain error issue (details here), post-Booker circuit data is of even greater importance.  The number of Booker pipeline cases, and the movement to date of cases through the pipeline, seem like relevant considerations as SCOTUS contemplates how and when to jump back into the Booker fray.

Can a variance for "co-defendant disparity" be reasonable?

Earlier today the Sixth Circuit in Jackson had some interesting dicta about reasonableness and the need to justify a non-guideline sentence in detail.  And this afternoon I just saw that the Second Circuit, in the unpublished decision of US v. Toohey, No. 04-4565 (2d Cir. May 23, 2005), has set forth some similar points:

Under the advisory Guidelines system recognized in Booker, the reasonableness of a sentence will depend, in large part, on the sentencing court's compliance with its statutory obligation to consider the factors detailed in 18 U.S.C. § 3553(a). These include the applicable Guidelines range as well as any pertinent policy statements issued by the Sentencing Commission. Further, because Booker did not excise § 3553(c) from federal sentencing law, a district court that does not sentence within the applicable Guidelines range must still provide a "specific" statement of reasons for its decision, both orally at the time of sentencing and in writing on the judgment of conviction.

After this notable language (which alone would seem to justify a published opinion), Toohey gets particularly interesting because of its discussion of what sorts of "unwarranted disparities" can be of concern to district courts under § 3553(a)(6).  This issue arose in Toohey because the district court justified a departure "by reference to a more lenient sentence imposed on an unrelated defendant."  Here's what the Second Circuit had to say about that:

Title 18 U.S.C. § 3553(a)(6) statutorily obligates a federal sentencing court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." As we observed in US v. Joyner, 924 F.2d at 460-61, the unwarranted disparities that informed this statutory concern were not those between any two discrete cases or even between two defendants in the same case.  Rather, Congress's "objective was to eliminate unwarranted disparities nationwide." Id. at 460.  Joyner recognized that "[t]he method chosen by Congress to avoid unwarranted disparities is a guideline system that prescribes appropriate sentencing ranges for various combinations of facts concerning an offense and an offender and permits a sentencing judge to depart from the recommended range in unusual circumstances." Id.  Although Booker now requires us to substitute the word "recommends" for "prescribes" in the quoted observation, in all other respects, Joyner's construction of the role the Guidelines play in § 3553(a)(6) consideration remains the same.  Thus, a sentencing court does not reasonably satisfy its statutory obligation under § 3553(a)(6) when it only compares discrete cases or defendants.  Rather, to identify a reasonable sentence, § 3553(a)(6) expects a court to consider whether a defendant is favored or disfavored by a particular sentence "compared to all those similarly situated defendants." United States v. Joyner, 924 F.2d at 461 (emphasis added).FN 3

FN 3 Our attention to § 3553(a)(6) is not meant to suggest that provision should dominate the district court's sentencing analysis. On the contrary, the Sentencing Reform Act "requires judges" to consider the factors listed in all seven subparts of § 3553(a).  We focus on § 3553(a)(6) here because the district court based its Guidelines departure solely on the ground of sentencing disparity.  On remand, the court should consider all § 3553(a) factors in deciding whether to impose a Guidelines or non-Guidelines sentence.

The issue of whether a departure might be justified based on co-defendant disparity was fascinating and nuanced even before Booker came along.  Compare, e.g., US v. Caperna, 251 F.3d 827, 830-31 (9th Cir. 2001) (approving departure based on co-defendant disparity in some instances) with US v. Wong, 127 F.3d 725, 728 (8th Cir. 1997) (rejecting co-defendant disparity as a ground for departure).  The Booker remedy adds a layer to the co-defendant disparity onion by raising the possibility that co-defendant disparity might provide a basis for a variance, although the work of the Second Circuit in Toohey suggests that such a variance would not stand unless supported by other 3553(a) factors.  (Of course, 3553(a)(2)(A) calls for sentences that "promote respect for the law," and an argument can surely be made that co-defendant disparity undermines respect for the law.)

Fanfan to be resentenced today

I have heard from a helpful reader that Ducan Fanfan — who, in a future "law nerd" version of Trivial Pursuit, will be the answer to the question "What was the name of the defendant in the companion case to US v. Booker?" —  is scheduled to be resentenced today. 

Recall that Freddie Booker was a post-Booker loser because Wisconsin US District Judge Shabaz exercised his discretion to impose the same enhanced sentence upon resentencing that Booker initially received (details here).  But such a repeat resentencing result would be a win for Fanfan since, as detailed here, he originally received a 78-month sentence (rather than a sentence within the guidelines range of 188-235 months) because US District Judge Brock Hornby, sentencing Fanfan four days after Blakely was handed down, refused to consider facts beyond those established at Fanfan's trial.

I will, of course, share details about Ducan Fanfan's resentencing when I know more.

6th Circuit discusses post-Booker requirements

Perhaps kicking off another big Booker day in the circuits, the Sixth Circuit this morning in US v. Jackson, No. 04-3074 (6th Cir. May 24, 2005) (available here), reversed a downward departure (granted before Booker) because the district court did not sufficiently justify its decision.  Along the way, the court spoke at length about how a post-Booker court must operate:

In this case, the district court decided to impose a sentence of three years of probation, including six months of home confinement, notwithstanding the fact that Jackson's criminal history category and base offense level placed him within a Guidelines range of twenty-seven to thirty-three months. In support of the imposition of this sentence, the district court provided a list of various characteristics of the defendant that it considered during sentencing. The district court's reasoning, however, did not include any reference to the applicable Guidelines provisions or further explication of the reasons for the particular sentence imposed.

We hold that, even post-Booker, the list provided by the district court, without any accompanying analysis, is insufficient to justify the sentence imposed, as it renders our reasonableness review impossible. Although we are fully cognizant of the fact that district courts are no longer bound by the Guidelines in the manner they once were, a fact which inevitably may empower district courts with greater flexibility in sentencing, we nonetheless find that, pursuant to Booker, we as an appellate court must still have the articulation of the reasons the district court reached the sentence ultimately imposed, as required by 18 U.S.C. § 3553(c).  In our view, Booker requires an acknowledgment of the defendant's applicable Guidelines range as well as a discussion of the reasonableness of a variation from that range.  Further, in determining the sentence, the district court must consider the advisory provisions of the Guidelines and the other factors identified in 18 U.S.C. § 3553(a).FN 3

FN 3 To the extent that the district court in resentencing relies on any factors which are deemed by the Guidelines to be prohibited or discouraged, see, e.g., U.S.S.G. §§ 5H1.1 (age), 5H1.4 (physical appearance or condition), 5H1.5 (employment record), 5H1.6 (family ties and responsibilities), 5H1.10 (race), the district court will need to address these provisions and decide what weight, if any, to afford them in light of Booker.

Learning from Lopez

The Colorado Supreme Court's recent Lopez ruling applying Blakely (basics here) is a must-read for everyone interested in watching a state Supreme Court faithfully apply Blakely's new constitutional mandate while also finding ways to minimize its impact on an existing structured sentencing system.  There are many insights and choice passages in Lopez, but I particularly appreciate the court's embrace of a helpful nomenclature (drawn from an Arizona decision) for facts which judges can rely upon for enhancing a sentence:

[F]acts admitted by the defendant, found by the jury, or found by a judge when the defendant has consented to judicial fact-finding for sentencing purposes we call "Blakely-compliant," and prior conviction facts we call "Blakely-exempt."

In addition, though it may be too late, the Lopez court has some important lessons for the Tennessee Supreme Court (which, as discussed here, seemed to mis-read Blakely an Booker in its recent Gomez decision):

[T]he Blakely Court effectively rejected any distinction, for the purposes of Sixth Amendment analysis, between mandatory or discretionary aggravated sentencing systems based on judicial factfinding.  Under either system, facts supporting increased sentences are subject to the rule. The Court stated that "[w]hether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence." [Blakely, 124 S. Ct] at 2538 n.8 (emphasis in original).

More Medellin coverage

You can read more about the Medellin case (basics here and here) this morning in stories from Legal Times, the New York Times and the Washington Post.  Also, addition blogsphere coverage comes from Scrivener's Error.

Busy Booker day in the circuits

Though I have a night of Supreme Court reading planned (starting with the Colorado Supreme Court's Blakely decision in Lopez), the circuit courts have not given us a Booker break today.  Of course, it's not news that the Eighth Circuit has posted a bunch more sentencing decisions on its daily opinion webpage, but it is interesting to see the First Circuit today deliver a big bunch of Booker rulings as well.  (The always helpful Appellate Law & Practice now has posts accounts of many of the rulings from the First.)   

In addition, the Third, Fifth, Sixth, Seventh, and Eleventh Circuits all have also issued at least one ruling with some Booker discussion today.  And because the Tenth Circuit issues its decisions late in the day, it is possible we will might have even more Booker circuit rulings before the day is done.  Readers are highly encouraged to note in the comments or via e-mail any particularly notable holdings or dicta in all this Monday Booker action.

Speaking of the Tenth Circuit, because of its late-day work, I missed that on Friday the Tenth Circuit issued a notable en banc Booker ruling in US v. Yazzie, No. 04-2152 (10th Cir. May 20, 2005) (available here).  What makes Yazzie perhaps most notable is that it is the first circuit ruling I have seen which holds, on the authority of Booker, that 18 USC 3553(b)(2) must be "excised" to make the guidelines advisory in sex offense cases along with all other cases.  (For background on this issue, see this post.)

Background and blog commentary on Deck and Medellin

Though I am most excited today by Colorado Supreme Court's big Blakely opinion in Lopez (which I hope to comment upon at length in future posts), other bloggers who are not quite so Blakely-addled are buzzing about SCOTUS's capital sentencing work today in Deck and Medellin (basics here).  I hope to find time to comment about these decisions before too long, but in the meantime I can provide some background and links to other commentary.

Starting with Deck, the shackling case, here are press reports on the decision from the AP and from Reuters.  And the blogsphere provides commentary from Orin Kerr at The Volokh Conspiracy.

Turning to Medellin, the foreign nationals case, here are press reports on the decision from the AP and from Reuters. And the blogsphere provides commentary from Lyle Denniston at SCOTUSblog, from Orin Kerr at The Volokh Conspiracy, from Julian Ku at Opinio Juris, and from TalkLeft.

Colorado Supreme Court applies Blakely!

This morning in Lopez v. People, No. 04SC150 (Colo. May 23, 2005) (available here), the Colorado Supreme Court issued a major ruling concening the application of Blakely in the Mile High state. Here is are the official abstract of what looks like a long and thoughtful opinion in Lopez:

The Supreme Court holds that section 181.3401(6) aggravated sentencing, based on a sentencing judge finding the presence of extraordinary aggravating circumstances, is constitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004), if it is based on one of at least four Blakely-compliant or Blakely-exempt types of aggravators: 1) facts found by a jury beyond a reasonable doubt; 2) facts admitted by the defendant; 3) facts found by a judge after the defendant stipulates to judicial factfinding for sentencing purposes; and 4) facts regarding prior convictions.

The Court expects that this holding, implementing the Supreme Court's Blakely decision, will apply only to a limited number of cases.  First, it will apply retroactively only to cases pending on appeal.  Second, in the future, the legislature may enact a statute that responds to the United States Supreme Court's holdings in Apprendi, Blakely, and Booker by adopting a statute that does not place the trial court into the position of finding facts in order to aggravate sentences.  Third, under the current statute, prosecutors arranging plea agreements, or trial courts considering guilty pleas, can insist that defendants admit to those facts potentially needed for aggravated sentencing. Fourth, the jury can be asked by interrogatory to determine facts potentially needed for aggravated sentencing. Fifth, and most important to the case before us, the full range of mitigated, presumptive and aggravated sentencing remains available under the statute if based on constitutionally-permissible facts, in accordance with Blakely.

Under section 181.3401(6), the existence of a constitutionally-permissible aggravating or mitigating fact widens the sentencing range to a floor of one-half the presumptive minimum up to a ceiling of double the presumptive maximum. The sentencing judge then has full discretion to sentence within this widened range according to traditional sentencing considerations.  However, if the trial judge must find additional facts in order to impose a sentence outside of the presumptive range, the rule of Blakely applies. 

The aggravated sentence in this case was imposed in part on the basis of a prior conviction, and the Court holds that one constitutionally valid aggravator is sufficient to support an aggravated sentence under section 181.3401(6).  Accordingly, the Court affirms the court of appeals' judgment upholding the aggravated sentence for possession of cocaine in this case.

A win for one capital defendant, an interesting DIG, and more Booker GVRs

As so well covered over at SCOTUSblog, part of this busy morning at the Supreme Court included a victory for a capital defendant in Deck v. Missouri (04-5293), where the Court ruled, 7-2, that "it is unconstitutional to require an individual, appearing before a jury for a possible death sentence, to be restrained by shackles and handcuffs throughout the proceeding."  The lengthy Deck opinion can now be accessed at this link.

And, in an interesting development in another capital case, the Court also dismissed Medellin v. Dretke (04-5928) as "improvidently granted."  Medellin, you will recall, was to address the impact of rulings by the World Court on respecting consular rights in context of US death penalty cases.  The lengthy Medellin opinion can now be accessed here.

And, continuing a Monday morning tradition, the Supreme Court's also issued some more Booker-inspired GVRs, although I count only 8 this morning on this order list.

Sunday's sentencing blogsphere stroll

A Sunday afternoon stroll around the blogsphere has led me to these notable posts on sentencing topics:

• TalkLeft in this post discusses the fascinating news that a federal judge in California, responding to a lawsuit assailing the horrid state of health care in state prisons, has ordered California to show cause why the prison health care system shouldn't be placed into receivership.

• Crim Prof Blog updates here the story of the Indiana death row inmate, due to be executed this week, who is seeking a reprieve in order to donate his liver to his dying sister.  The Indiana Parole Board has rejected the request, and Governor Mitch Daniels will have the final say in a case which provides a different perspective on a "culture of life."

• Appellate Law & Policy has posts on interesting sentencing decisions from the First Circuit and Fifth Circuit.  The Fifth Circuit case, US v. Piniero (available here) involves a Booker remand for resentencing (the issue was preserved below, and government could not meet its harmless error burden).

• Gideon at The Connecticut Law Blog has this post discussing a bill to amend the state's sex offender registry law. 

• White Collar Crime Prof Blog in this post reports on interesting federal sentencings in a Philadelphia corruption scandal.

Another potent editorial against mandatories

In a number of prior posts (which are linked below), I assembled excerpts from many editorials criticizing the House's consideration of HR 1279 and HR 1528, the gang and drug sentencing bills which include a number of harsh mandatory minimums.  Today, in this editorial entitled "Mandatory minimums a smoke screen," the Freeport Journal Standard (Illinois) adds these similar sentiments:

Both [the gang and drug] bills have drawn fierce opposition from human rights, religious and civil rights groups, and are vehemently opposed by the American Bar Association.  But in their zeal to bang the old "tough on crime" drum, the GOP rages forward, undaunted and oblivious to the obvious hypocrisy.

For example, even as states across the nation, not to mention Great Britain, Canada and Russia, move toward decriminalization of small amounts of cannabis, the proposed new law requires anyone convicted in federal court of passing a joint to someone who ever set foot in drug treatment to prison for a minimum of five years — 10 years for a second offense.  Meanwhile, the average time served by convicted rapists in America is about seven years....

[W]rites USA Today, in a May 17 editorial, "It's time for a serious debate on whether massive arrests of low-level users are worth the cost or having any benefit."  Ronald Reagan sold the nation on a "drug war" targeting cocaine cartels and hard drugs in crime-infested inner cities.  Now it's a self-perpetuating and profitable de facto war against the nation's young people — rural, urban and in between.

No, the real threat to America isn't "judicial activism." It is the insanity of putting more and more Americans in prison for low-level drug crimes — leaving millions of broken families, newly dependent on government handouts, behind.

Here are some recent posts with other similar criticisms of HR 1279 and HR 1528:

• The Fool(ish bills) on the Hill
• More editorial criticism of House's pursuit of mandatory minimums
• Still more criticisms of gang bill
• Criticisms of the House's passage of gang bill

Clemency dynamics in Arizona and nationwide

Over the holiday period last year, the papers and this blog were buzzing about the modern disuse of the historic executive clemency powers (see some of the posts at this archive).  Today, this article from Arizona provides interesting data and discussion of the decline of clemency in that state, and the article is especially effective in documenting the forces which account for this decline in Arizona and nationwide.  Here's the lead:

Arizona governors are largely ignoring advice from the state's clemency board, leaving hundreds of prisoners serving time that the board has said doesn't fit their crimes.

A decade ago, Arizona abolished parole, leaving the governor with the final say if any inmates should be let out of prison early.  Since then, the number of inmates recommended to the governor for shortened prison terms by the Board of Executive Clemency has skyrocketed.  But in the vast majority of cases, even in those where the trial judge agrees with the board that a sentence is too long, the governor has rejected the board's recommendations.

DOJ planning national sex offender registry

As detailed in this Washington Post article, AG Alberto Gonzales has announced that the Justice Department is planning "a national registry of sex offenders that would allow Internet users to check all the state databases in a single search."

Officials said the Web site is being created in response to complaints from victims' rights groups and some lawmakers that dangerous sex predators were often evading detection by moving across state lines.

Attorney General Alberto R. Gonzales, in a speech at the National Press Club announcing the initiative, said Justice would aim to have a working Web site linked to 20 states within 60 days. The remaining states would be added by fall, he said.

Responding to this news, TalkLeft in this post discusses and links to a lot of its  concerns about sex offender registries.