Sentencing Law and Policy

1st Circuit addresses Blakely's applicability to revocation of supervised release

This past Friday was a day for interesting (and arguably ground-breaking) Apprendi/Blakely decisions.  In addition to the notable Second Circuit ruling on Apprendi's applicability to New York's persistent felony offender statute in Brown v. Greiner (basics here), Friday also brought from the First Circuit US v. Work, No. 04-2172 (1st Cir. June 3, 2005) (available here), which rules that Blakely is not applicable to judicial determinations in the course of revoking supervised release and ordering a term of imprisonment. 

Work is an interesting ruling for a number of reasons, and it provides useful background on both Blakely and the federal law of supervised release.  Here is the decision's opening paragraph:

In this appeal, defendant-appellant Timothy P. Work argues that the Sixth Amendment, as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time. He posits that when such a revocation leads to additional imprisonment above and beyond the top of the original guideline sentencing range, the facts underlying the revocation must be proven to a jury beyond a reasonable doubt.  We conclude that the appellant's argument is doubly flawed: it is premised not only on a misunderstanding of supervised release but also on an attempted importation of Sixth Amendment jury trial rights into an area in which they do not belong.

Among other interesting aspects of the Work court's discussion of these issue is this (debatable?) passage addressing not only the scope of the Sixth Amendment, but also due process concerns and requirements (citations omitted):

The difficulty with the appellant's argument is that this type of judicial factfinding [i.e., finding facts to confirm violation of supervised release conditions] does not pose a Sixth Amendment problem.  The law is clear that once the original sentence has been imposed in a criminal case, further proceedings with respect to that sentence are not subject to Sixth Amendment protections.  To be sure, the conversion of a less restrictive form of punishment, such as supervised release, to a harsher one, such as imprisonment, does entail a deprivation of liberty (albeit conditional liberty).  As such, the accused must be accorded a suitable panoply of due process protections.  The process that is due, however, does not encompass the full sweep of the Sixth Amendment's prophylaxis (such as a right to a jury trial on the facts of the alleged violation). Nor are facts required to be proven beyond a reasonable doubt in such a proceeding.

(First Circuit aficionados get only one guess as to the author of Work and its discussion of "the Sixth Amendment's prophylaxis.")

Notable 2d Circuit Apprendi ruling on habeas

Thanks to Appellate Law & Practice's post here, I see the Second Circuit in a major habeas ruling involving New York sentencing statutes has put a fascinating and important gloss on Apprendi (and, consequently, Blakely and Booker).  Here is the court's opening paragraph in Brown v. Greiner, No. 03-2242 (2d CIr. June 3, 2005) (available here):

These three appeals, which we have consolidated, present the same question: Were the state court decisions affirming Petitioners' extended sentences under New York's persistent felony offender statute, N.Y. Penal Law § 70.10, "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"? 28 U.S.C. § 2254(d). The relevant Supreme Court ruling to which the petitions refer is Apprendi v. New Jersey, 530 U.S. 466 (2000), which ruled that in order for a sentence to comply with the dictates of the Sixth Amendment, a factual finding that drives a sentence above the otherwise applicable statutory maximum penalty (other than the fact of a prior conviction) must be found by the jury beyond a reasonable doubt, or be admitted by the defendant.  We hold it was not unreasonable, in light of then-existing Supreme Court precedent, for the state courts to conclude that a sentencing judge's "opinion" as to what type of sentence would "best serve the public interest" is not a factual finding within the meaning of Apprendi.  We accordingly reverse the judgments granting writs of habeas corpus in Brown and Rosen, and affirm the judgment denying the writ in Ramos.

Contrasting neighbors: the Booker pipeline in the 8th and 9th Circuits

The contrast between the status of Booker pipeline cases in the Eighth and Ninth Circuits really struck me today as I did my mid-day circuit review.  I see on this official opinion page that the ever-active Eighth Circuit has today released yet another sizable number of sentencing rulings; an on-line search indicates that the Eighth Circuit has now produced nearly 150 Booker pipeline rulings and over 70 in the past month alone.  Meanwhile, though this week the en banc Ninth finally gave us a plain error decision in Ameline (basics here, commentary here), an on-line search highlights that the Ninth Circuit has resolved only a handful of Booker pipeline cases in the last month.

The divergent pace of Booker pipeline cases in these circuits is even more dramatic when one considers that, according to recent USSC appeal statistics, the Ninth Circuit has nearly three times as many as guideline appeals as the Eighth Circuit.  Based on the USSC data, I would guess that the Eighth Circuit is getting close to having its Booker pipeline mostly cleared out, while the Ninth Circuit may have over a thousand Booker cases clogged up in the pipeline.  As noted here, a press report about Ameline suggested there were 700 plain error case in the Circuit, and there now have to be many more in which Blakely/Booker claims were preserved.  The long-awaited Ameline decision, and its adoption of a Crosby limited remand approach, should get the Ninth Circuit pipeline flowing, but there is a lot of plumbing ahead.

Interestingly, it is hard to figure out which circuit is taking a wiser approach to all the Booker pipeline cases.  The Eighth Circuit's tough approach to plain error in Pirani (basics here) has allowed the circuit to affirm many sentences imposed before Blakely and Booker came along.  But, if (when?) the Supreme Court takes up the plain error issue (background here and here and here), and if (when?) the Supreme Court takes a different view on plain error than does Pirani, I expect there will be a whole lot of new GVRs bringing these cases back before Eighth Circuit.  Of course, the problem with the Ninth Circuit's go-slow approach is that, as explained here, it seems unlikely we should expect any clarifying Blakely or Booker decisions until at least March 2006.  Thus, unless the Ninth Circuit is prepared to keep its Booker pipeline plugged up another year, a go-slow approach is not clearly more effective or efficient that the Eighth move-along approach.

Indeed, the more I reflect on the pipeline mess (and the circuit-by-circuit disparity it has engendered), the more ingenious appears the Third Circuit's approach in Davis (basics here), which essentially calls for sending all significant pipeline cases back to the district court.  Though doctrinally debatable, the Davis approach has a simplicity and efficiency that is hard not to like in the crazy, mixed-up post-Booker world in which we all now live.

Connecticut Gov. vetoes bill to equalize crack/powder sentences

From this post at The Connecticut Law Blog, I see this disappointing news that Connecticut Governor M. Jodi Rell on Thursday vetoed a bill that would have reduced the criminal penalties for possession of crack cocaine and equalized them with those for powder cocaine.  As this newspaper article details, Jesse Jackson had sent Rell a potent letter which stated that approving the bill would send a message "that Connecticut won't stand for a criminal justice policy that promotes any racial disparities."  (As noted here, the New York Times made a similar point in a recent editorial.) 

This official press release provides more details on the bill and Rell's decision, as well as letters Rell wrote to interested Connecticut officials to explain her decision.  Here's an interesting excerpt from the press release:

"Crack cocaine is one of the most dangerous, addictive drugs on the streets today, and is the source and cause of too much violence in our cities," Governor Rell said.  "Now is not the time to ease our law enforcement efforts."

At the same time, the Governor said, she understands and accepts the view voiced by many in the African American and Latino communities that there is a clear disparity in Connecticut prison populations as a result of current sentencing laws.  Accordingly, she is asking the General Assembly for a revised bill and is offering proposals to address the disparities to ensure that Connecticut's criminal justice system is more sensitive to the concerns of minorities.  "I have been deeply moved by the concerns and arguments that have been raised," Governor Rell said. "I have also listened to the many painful stories of racial disparities, and I intend to act to address them," Governor Rell said. "I want Connecticut in the forefront of this fight."...

In her veto message, the Governor proposed a new compromise bill – setting the threshold at one-half ounce (14 grams) for both crack and powder cocaine – and encouraged the legislature to approve such a change before the current session adjourns.

Judge Gertner on Apprendi, Ring, and Blakely in capital setting

I am back from a great but too-brief San Antonio trip, and I have lots of new insights from talking to federal defenders that I hope to share in future posts.  But today I am just trying to catch up (and also make time for my favorite local sporting event). 

The most interesting development I missed yesterday is a new opinion from Mass US District Judge Nancy Gertner in US v. Green, the capital case which has already prompted some notable rulings from her court and the First Circuit.  This latest opinion in Green concerns the government's effort to "seek to justify [the defendant's] death sentences on the basis of a number of aggravating factors  [that include] allegations of prior crimes that were not charged in the instant indictment and, indeed, have never been adjudicated in any setting."  Not so fast, says Judge Gertner (in an opinion available for download below):

Together, Apprendi, Ring, and Blakely abandoned the Court's previous focus on the procedural protections required when a defendant is exposed to punishment above the statutory maximum.  They emphasized the protections that must be accorded more generally to facts, including those factors traditionally characterized as sentencing factors, that are essential to punishment because they increase a defendant’s punishment even within a statutory sentencing range. Plainly, prior unadjudicated crimes that the government offers to justify the imposition of the ultimate punishment fit within this category of essential factors.

Although defendants urge the Court to treat all nonstatutory aggravating factors alike and require that everything be screened, my ruling is a narrow one, limited to prior unadjudicated crimes.  The other non-statutory factors here (lack of remorse and victim impact), like certain of the listed statutory aggravators, are factors tied to the charged offense.  They do not raise the same constitutional concerns as prior unadjudicated accusations of crime apparently unrelated to the offense and uniquely prejudicial.

Download gertner_green_memo.pdf

NY Times on drug sentencing

This morning the New York Times has this potent editorial entitled "Bring Fairness to Drug Sentencing" that is focused on the sentencing disparity between crack and powder cocaine offenses.  Here are highlights:

Congress spawned a national trend toward discriminatory sentencing when it drew a false distinction between powdered cocaine and crack cocaine for law enforcement purposes during the 1980's ... [that] has resulted in a racially biased sentencing policy, since crack users are mainly black and Latino, while powdered cocaine tends to be a drug of choice for affluent whites.  This system was emulated by the states, and its blatant unfairness undermines respect for the judicial system in communities of color.

The United States Sentencing Commission has repeatedly urged Congress to deal with this shameful problem by reducing the sentencing for possession of crack to bring the two more in line. But Congress has rejected this idea, for fear of being seen as "soft on drugs." State legislatures have generally been paralyzed by this same fear.

Nevertheless, the argument for fairness is finally being aired in several states, including California, South Carolina and Connecticut. Both houses of the Connecticut Legislature have passed a bill that would bring crack and powdered cocaine sentences into line.  Gov. Jodi Rell is equivocating on whether she will sign.  She has the chance to demonstrate to the people of the state that she has the strength of character to do something that has no discernible political advantage, simply because it's the right thing.  It is an opportunity she shouldn't refuse.

Rough day for Booker defendants in the Circuits

I am now in San Antonio to participate in the on-going National Seminar for Federal Defenders.  Getting in the local spirit, I must note that, though Wednesday was a good day for the Spurs, it was not a good day for Booker defendants in the circuits.  The Ninth Circuit's en banc decision in Ameline (basics here, commentary here), though not giving the government its requested relief, still makes life more difficult for defendants asserting plain error than did the original Ameline panel decision.  And, the government scored notable complete victories in Booker-related decisions from other many circuits on Wednesday:

From the Sixth Circuit, in US v. Luebbert, No. 03-5598 (6th Cir. June 1, 2005) (available here), the court in a short (and split) decision in a GVRed case from the Supreme Court refused to consider a Booker claim due to an appeal waiver.  Judge Moore dissented because she believed "that Luebbert's plea agreement [did] not unambiguously waive Luebbert's right to raise a Sixth Amendment challenge to his sentence on the basis of United States v. Booker."

From the Seventh Circuit, in US v. Cieslowski, No. 03-2890 (7th Cir. June 1, 2005) (accessible here), the court in a lengthy opinion affirmed a lengthy sentence over seemingly sound claims of ineffective assistance.  Along the way, the court provided an interesting discussion of the status of so-called (C) pleas after Booker — for non-FSG-geeks, those are pleas in which the parties agree to a particular sentence pursuant to Fed. R. Crim. P. 11(c)(1)(C).

From the Eighth Circuit, Wednesday marked the third consecutive work day in which the court issued roughly a half-dozen sentencing opinions which, more often than not, found defendants' Booker claims unavailing.

From the Tenth Circuit, in US v. Dalton, No. 04-7043 (10th Cir. June 1, 2005) (available here), the court reiterated its view that preponderance fact-finding is all the guidelines require, and upheld a guideline calculation of drug quantities based principally on "testimony [that] was vague and contradictory at times."  The court also rejected a Booker plain error claim based on the fourth prong of the plain error test.

Ameline in less time

One of my kind cyber-friends sent me a more user-friendly version of the Ninth Circuit's Ameline decision (basics here).  This version, available below, should provide for quicker downloading and also enables cutting-and-pasting. Even in this user-friendly version, the whole opinion is still 103-total pages.  But the majority's work might be fairly summarized as:  See US v. Crosby, 397 F.3d 103 (2d. Cir. 2005).  Ditto! 

The one Ameline opinion that is most worthy of a very close read comes from Judge Wardlaw.  The second part of her opinion includes an crackling account of why "Booker is a signal event in the development of the law," and the first part of her opinion has this notable sentence assailing the majority's "limited remand" approach to plain error:

[W]hile at first blush it may be enticing to an overworked and overscrutinized bench to rid ourselves of hundreds, perhaps thousands, of appeals, we may create much more work for ourselves down the road than if we had simply done it right in the first place.

Another way to get Ameline highlights is from press coverage provided by The Recorder and the Los Angeles Times and the AP.  The Recorder story includes the interesting data tidbit that there are "about 500 [Booker] appeals in limbo at the 9th Circuit, with as many as 200 more in the pipeline, according to the clerk's office."

Download Ameline.pdf

Florida Supreme Court allows capital jury override despite Ring

A helpful reader pointed me to an interesting death penalty decision, noted here by Abstract Appeal, in which the Florida Supreme Court holds that Ring does not preclude a trial judge under Florida's capital statutes from overriding a jury's recommendation of life imprisonment to sentence a defendant to death.  Though the decision in Marshall v. Crosby, No. 02-420 (Fla. May 26, 2005) (available here), indicates that the Florida Supreme Court has previously rejected a series of challenges based on Ring, I get the impression that this is the first case considered by the court in which the sentencing judge imposed a death sentence over a jury recommendation of life.

Though all aspects of Marshall are interesting, a particularly notable aspect of the majority's opinion is its reliance on the prior conviction exception as one of many alernative grounds for its holding.  And the dissent by Justice Anstead presents a particularly thorough and powerful set of arguments against the constitutionality of Florida's jury override procedure in the wake of Ring.  And since Justice Anstead's dissentin Marshall has the best rhetoric, I'll quote from that opinion:

Today, we approve a practice that has now been outlawed in the United States by this nation's highest court, the imposition of the death penalty by a single judge in the face of a jury finding that the circumstances of the case do not support a sentence of death and require a life sentence. Because this outcome essentially allows a trial judge to ignore a jury's actions and direct a verdict and judgment for death in favor of the State, it is patently offensive to our constitutional notions of due process and the right to a jury trial....

Clearly, Ring was a decision meant to increase the consistency and accuracy of identifying those cases where the death penalty is warranted by requiring the facts necessary to impose the death sentence to be found by the jury.  The Court's decision today flies directly in the face of the Sixth Amendment and the Supreme Court's decision in Ring. Rather than embrace the Sixth Amendment's protections and look for ways in which the role of the jury could be modified to bring Florida into line with the Supreme Court's prevailing constitutional law, the majority has effectively removed the jury from the death penalty equation. This is a sad day for constitutional law and justice in the State of Florida.

Off to San Antonio

I have to complement the Ninth Circuit for its great timing: it was kind enough to issue Ameline only a matter of hours before I have a long trip to San Antonio to partipate in the National Seminar for Federal Defenders taking place there this week.  Consequently, I have (still more) reading material for the airplane ride (and with the recent Ohio decisions), and everyone else has Ameline to digest (along with all the other recent posts since this previous update) while blogging slows down for the next few days. 

• Cutter, Andersen, another capital grant and Booker GVRs
• A capital waste of time?
• Deeper thoughts on Marsh and sentencing burdens of proof
• Morning coverage of SCOTUS work
• Religion, sentencing and corrections

• Great media coverage of the post-Booker world
• Reports of notable NY resentencings
• More details on Pabon Cruz resentencing
• Bevy of notable Booker circuit rulings
• Ninth Circuit issues Ameline!
• Latest development in Ohio's Blakely story

Ninth Circuit issues Ameline!

Thanks to this post at How Appealing, I see news that the Ninth Circuit has finally issued its en banc Booker plain error decision in Ameline.  According to Howard's report, the decision runs a total of 103 pages, and "the court, through a seven-judge majority, agrees to apply the Second and Seventh Circuits' limited remand approach."

UPDATE:  Here is a link to the Ameline decision, but it is giving me trouble (and the document is in a form now precluding cut-and-paste).  Here's a quick transcription of the key paragraph from the introduction:

[W]e hold that when we are faced with an unpreserved Booker error that may have affected a defendant's substantial rights, and the record is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory....  In essence, we elect to follow the approach adopted by the Second Circuit in US v. Crosby, 397 F.3d 103 (2d Cir. 2005).

ANOTHER UPDATE: A quick scan suggests that Ameline majority opinion ends with a seemingly coy discussion of the burden of proof at sentencing.  I highly encourage readers to comments on this or any other aspect of the decision while I head for a plane.

Religion, sentencing and corrections

I have not discussed the Supreme Court's decision in Cutter yesterday largely because, as highlighted by this helpful summary from Marty Lederman at SCOTUSblog, the decision was relatively cursory and did not address in any broad way how the Establishment Clause might impact the intersection of religion, sentencing and corrections. 

However, this post today at CrimProf, which spotlights this AP story about a Kentucky state judge "offering some drug and alcohol offenders the option of attending worship services instead of going to jail or rehab," provides a stark reminder there may be a lot of future litigation over the ways in which religion and sentencing and corrections cross paths.  Kaimi Wenger at PrawfsBlawg in this post, after noting he is "naturally suspicious of coerced church attendance," ponders what a judge should do "in cases where it looks like there is a genuine rehabilitation benefit to be gained from channeling some convicted people to a religious organization that has an effective social network that will help them overcome their problems."

This story from Kentucky only reinforces the point, discussed in this post when cert was first granted in Cutter, that these are interesting times in church-sentencing-prison relations.  As detailed in articles here and here and here, Florida and some other jurisdictions have been experimenting with "faith-based" prisons, which house inmates who have chosen to take part in rehabilitation programs run by volunteers from religious groups.  Though the Cutter ruling seems unlikely to directly impact the faith-based prison movement, it could perhaps bring still more attention to the law and policy of religious involvement in corrections.

Latest development in Ohio's Blakely story

I have not noted a number of recent intermediate appellate court decisions on Blakely from Ohio, because, as detailed in this Ohio Criminal Sentencing Commission memo, the basic story has not changed much of late: most of Ohio's intermediate appellate courts have found Blakely largely inapplicable in Ohio, though the First District Court of Appeals has held to its view, discussed here and here, that Booker significantly altered the Blakely analysis in Ohio.  (Background on how Ohio's sentencing laws and practices make the state a Blakely bellwether, because Blakely's impact on Ohio's sentencing scheme could be extreme or extremely minor, can be found in posts here and here.)

But yesterday brought a development that merits mention: in a pair of major en banc cases — State v. Lett, Nos. 84707 & 84729, 2005-Ohio-2666 (Ohio 8th Dist. May 31, 2005) (available here) and State v. Atkins-Boozer, No. 84151, 2005-Ohio-2666 (Ohio 8th Dist. May 31, 2005) (available here) — the Eighth District Court of Appeals, "cleaned up" some disparate Blakely rulings by prior panels.  In these (lengthy) decisions, the Eighth District Court of Appeals held that Ohio's sentencing scheme largely dodges Blakely problems.  Here are parts of the interesting opening paragraphs of Lett:

In Blakely v. Washington, the United States Supreme Court held that the "statutory maximum" for sentencing purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.  Shortly after the supreme court released that opinion, Justice Sandra Day O'Connor was widely quoted as saying that the decision "looks like a No. 10 earthquake to me."  These remarks proved accurate. The application of Blakely to sentencing issues relating to the maximum, minimum and consecutive sentences under [Ohio] R.C. Chapter 2929 have now divided this court, with the result being the imminent issuance of conflicting opinions from within this appellate district....

[W]e invoked our en banc procedure, extant since 1976, to resolve preemptively the differences within this district.  In doing so, we acknowledge that the Ohio Supreme Court has certified several cases touching on the issues to be addressed herein, including one involving Lett in an unrelated case.  Nevertheless, we think it provident to resolve the conflicts within this district pro tempore until such time as the supreme court resolves these issues definitively.

As might be expected, the complexity of the issues presented in this case has left this court deeply divided.  We recognize that the orderly administration of justice is the rock upon which government rests.  More criminal cases are heard in this appellate district than in any other in this state.  Our refusal to speak on these issues, no matter how discordantly on an individual basis, would create the untenable situation where individual defendants would be sentenced differently pending the Ohio Supreme Court's decision.  All of us agree that would be an unacceptable outcome and must be avoided; hence, our agreement is to apply the law set forth in this opinion until the Ohio Supreme Court renders a final decision.

Just in case you do not have time to read nearly 100 pages of trenchant Blakely Ohio analysis from the judges of the Eighth District Court of Appeals, highlights of the decisions are provided in a helpful official court press release that is provided for downloading below.

Download ohio_8th_ca_blakely_summary.pdf

Morning coverage of SCOTUS work

Howard Bashman at How Appealing has his usual superlative coverage of all the newspaper stories concerning the Supreme Court's work yesterday. 

I found particularly interesting the articles, linked here, discussing the Supreme Court's grant of cert in the Kansas v. Marsh, the death penalty case.  (My own recent commentary on Marsh is here and here.) In addition to providing background on the case, the articles discuss the decision by the Kansas legislature to hold off on a "legislative fix" to its capital sentencing statute until the US Supreme Court considered the state's cert petition.

UPDATE:  SCOTUSblog has more great coverage of recent SCOTUS work here, including a link to this interesting Findlaw commentary by Prof. Sherry Colb on last week's Deck decision concerning shackling a defendant during the penalty phase of a capital trial.

Deeper thoughts on Marsh and sentencing burdens of proof

As detailed here, my first reaction to today's cert. grant in Kansas v. Marsh was "blah...another capital case."  Fortunately, fellow Prof. Adam Thurschwell had deeper substantive insights on Marsh, since the case raises the interesting question of whether it is constitutionally acceptable for a state to require a jury to rule for death if it finds the aggravating and mitigating circumstances evenly balanced.  Upon my request, Adam has allowed me to share his insights here:

It seems to me that the Court may have foreshadowed its view in the recent Deck v. Missouri case (visibly shackled defendant during DP penalty phase violates due process), where, by analogy with the effect of shackling on the presumption of innocence, the Court said of the penalty phase decision,

Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the " 'severity' " and " 'finality' " of the sanction, is no less important than the decision about guilt.  Monge v. California, 524 U.S. 721, 732 (1998) (quoting Gardner v. Florida, 430 U.S. 349, 357 (1977)). . . . . . Neither is accuracy in making that decision any less critical. The Court has stressed the "acute need" for reliable decisionmaking when the death penalty is at issue.

I am wondering if this language can be squared with the Kansas statute.  They're probably distinguishable, but the closest analogy would seem to be the cases on due process limitations on the burden of proof for various issues, e.g., Medina v. California (OK to require defendant to proved by preponderance that s/he's incompetent) and Oklahoma v. Cooper (not OK to require defendant to prove by clear and convincing evidence that he's competent).  Given the language from Deck, the life/death decision sounds much closer to In re Winship, which emphasizes how the BARD standard is designed to implement the presumption of innocence.  This issue (and the potential Winship analogy) is important beyond the Kansas statute (which is unique to my knowledge, but I'd be interested in hearing otherwise), by the way, because the federal death penalty statute (and many state statutes as well, I believe) do not require juries to find that death is the appropriate sentence BARD; instead, they generally require that the individual aggravators be found BARD. The jury gets no burden of proof instruction at all on the ultimate life/death finding.

I am spotlighting Adam's insights not only because of the interesting Deck connection, but also because he rightly spots that Marsh might be a vehicle for the Supreme Court to speak more broadly to issues relating to the burdens of proof at sentencing — issues which, as stressed in my most recent Blakely/Booker article, I think are of critical future importance.  Consequently, I suppose I should not be so grumpy about the Supreme Court taking up Marsh.

More details on Pabon Cruz resentencing

In this post this past weekend, I noted an interesting press report on SDNY Judge Gerard Lynch's resentencing decision in the notable child pornography case of US v. Pabon-Cruz.  Today I heard from one of Mr. Pabon Cruz's lawyers, who has allowed me to post this further report on Judge Lynch's work:

This was a long long litigation that Judge Lynch had been struggling with for a while because the pictures were so troubling and yet the client was so young and promising. 

The client had been in jail the equivalent of 3 years.  Judge Lynch had for a while said that if there were no mandatory minimum he would impose 5 years.  In the end, I think a very favorable psychological report by the Government's expert persuaded the judge to go down an additional year.  For Booker enthusiasts, he also said that the guidelines were a serious consideration in his decision as well, and that since the guidelines were 97-120, he thought roughly half (48 months) was appropriate given all the other 3553(a) factors.

Interestingly, Judge Lynch had asked the parties to provide him with data on other similar cases so he could address the question of unwarranted disparities, but then at sentencing said that each case was so unique that he decided the information was not helpful to him.  The biggest 3553(a) factor is this case was the client's youth and his psych evaluations which said the client was not a danger to children.

The defense and the client were disappointed. We thought three years was much more than enough punishment, but still 48 months is a big improvement over the mandatory 10 years he had been facing.

This report also indicated that Judge Lynch appeared "to be reading from the bench," and thus I am thinking that we may see a written opinion reflecting the Judge Lynch's thinking in Pabon-Cruz before long.

A capital waste of time?

In my review of this morning's SCOTUS action here, I suggested I was annoyed by the Court's decision to grant review in the death penalty case of Kansas v. Marsh.  Let me explain this reaction.

First, some background: Kansas enacted a new death penalty statute in 1994 and prosecutors had sent seven men to Kansas' death row before the Kansas Supreme Court in Marsh last December found what has been described as a "technical flaw" in the operation of the state's capital sentencing procedures.  Discussion of the Marsh ruling is available in posts here and here, and the Death Penalty Information Center's state-by-state charts provide more background on capital punishment in Kansas.

Now, my complaint: No aspect of Marsh, other than that it is a capital case, seems of sufficient significance to merit a place on the Supreme Court's ever-shrinking docket.  Perhaps the fate of six men still on Kansas' death row could hang in the balance, though I would predict that there will be a lot more litigation about their fate even if SCOTUS reinstates their death sentences.  And realize that, unlike in Miller-El or Penry where the Court has twice reviewed a death sentence that seemed hinky, here the Supreme Court is reviewing a state court decision to overturn a state death sentence.

Especially against the backdrop of all the post-Blakely and post-Booker uncertainty, wherein the fate of literally hundreds of thousands of defendants hang in the balance, I continue to be troubled by the Supreme Court's continued preoccupation (fetishism?) with capital sentencing procedures (which I now am giving the label a "legal culture of death").  The Marsh grant, which I believe is already the third capital case in which cert. has been granted for the 2005 Term, reinforces yet again my recent observations in posts here and here that the Supreme Court is spending too much time and energy on death penalty litigation when there are many post-Blakely and post-Booker legal questions concerning non-capital sentencing procedures that are far more pressing and of much greater national import.

UPDATE: Lyle Denniston at SCOTUSblog has a long post about Marsh entitled "A major death penalty case? Maybe not."  Lyle's terrifically helpful report suggests that perhaps the substantive issue in Marsh might be of some broader significance, but it also suggests that the procedural posture of the case is likely to ensure a messy outcome.

Cutter, Andersen, another capital grant and Booker GVRs

As well covered over at SCOTUSblog here, this morning's opinions from the Supreme Court included an unanimous reversal in Cutter v. Wilkinson, which serves to uphold congressional power "to require officials of state and local prisons and jails to find ways to allow inmates to practice their religious beliefs," and another unanimous reversal in Arthur Andersen LLP v. US, which "overturned the criminal conviction of the now nearly defunct auditing giant, Arthur Andersen LLP, because of faulty jury instructions on the destruction of audit documents related to the Enron scandal."

Though I expect Cutter v. Wilkinson (03-9877) will be the buzz of the blogsphere, I am more intrigued (or perhaps annoyed) that the Court agreed to hear Kansas v. Marsh (04-1170) which concerns the constitutionality of Kansas' death penalty law.  As explained at SCOTUSblog at the end of this post, the "main question raised by the state of Kansas' appeal is whether a death sentence is barred if the aggravating and mitigating circumstances are evenly balanced," but "the Court added two procedural questions in the case: does it have jurisdiction to review the Kansas Supreme Court decision, and whether the state court ruling was based on state law and thus immune to Supreme Court review."  In a subsequent post I will explain why I am a bit grumpy about the cert. grant in Marsh.

And, continuing its new tradition, the Supreme Court's order list included some more Booker-inspired GVRs, although I count only 7 this morning.  Also, interestingly, that order list includes a grant of a motion by petitioner in Halbert v. Michigan (an interesting criminal case discussed here) for leave to file a supplemental brief after argument.  I wonder how often this happens.

Bevy of notable Booker circuit rulings

The late hour and an impending long holiday drive home precludes me from providing a thorough run-down of all the important Booker circuit rulings which came out late last week.  But I can at least quickly note that the First, Second, Fourth and Eighth Circuits all issued Booker decisions on Friday that merit review. 

Appellate Law & Practice has very brief accounts of the decisions from the First Circuit and from the Second Circuit.  Of this pair, the Second Circuit's work in US v. Selioutsky, No. 04-2740 (2d Cir. May, 27, 2005) (available here), is most notable for its discussion about the need to excise 3553(b)(2) and about how reasonableness review should operate.  (UPDATE: The Second Circuit Blog now has this post on Selioutsky.)

But, not to be overlooked, there is major work done by the Fourth Circuit in its discussion of appeal waivers in US v. Blick, No. 04-4887 (4th Cir. May 27, 2005) (available here).  And another major Friday by the ever-active Eighth Circuit produced seven(!) published sentencing rulings on its opinion page covering a broad range of Booker issues (in ways that most defendants and defense attorneys will not like).

Because I have only been able to give these opinions a very quick look, I highly encourage readers to use the comments to highlight any particularly notable aspects of Friday's Booker bounty.

Reports of notable NY resentencings

A night with high-speed access on the road has allowed me to catch up on some Booker news from the end of last week.  And since I am in NYC, I was particularly intrigued by the news reports of resentencing decisions from SDNY Judges Harold Baer and Gerard Lynch.

As detailed in this NY Law Journal story, Judge Baer in United States v. Murray, 02 CR 1214, apparently concluded that when "resentencing a defendant [pursuant to a Booker remand], a court has the authority to consider what happened before and after the original sentence was imposed."  As the article notes, the "proper" considerations at post-Booker resentencings were not directly addressed by the Second Circuit in Crosby (or, for that matter, by SCOTUS in Booker).  Filling in this gap, Judge Baer reportedly "issued a broad interpretation of facts that can be considered in resentencing."

As detailed in this NY Times article, Judge Lynch at resentencing, through the imposition of a reduced sentence, added another chapter to the remarkable case history of US v. Pabon-Cruz — a case which the judge once described as "without question the worst case of [his] judicial career" due in part to the inconsistencies in federal sentencing of child pornography offenses.  Some of the backstory of this case can be found via this post, and whether this story is now complete may depend on whether one of the parties seeks another trip to the Second Circuit.

I have not yet been able to find on-line the rulings in Murray or Pabon-Cruz, but the news accounts linked above leave me eager to know more about these decisions.  I would be grateful for materials or insights from anyone with more information concerning these notable cases.

UPDATE: I could not find Murray on-line because I did not realize it was decided way back on May 20.  Aided by the ever helpful Fran Pratt, I can now report that the decision can be had at 2005 U.S. Dist. LEXIS 9649 and 2005 WL 1200185.