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September 3, 2005

Death penalty news and notes

I noticed this morning a few interesting death penalty items in the papers:

September 3, 2005 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Recess appointment for DOJ criminal division

Thanks to this post at TalkLeft, I see that I missed earlier this week the interesting news that President Bush had to use a recess appointment to seat Alice Fisher as the head of the Justice Department's criminal division.

September 3, 2005 in Who Sentences | Permalink | Comments (0) | TrackBack

September 2, 2005

Sentencing reading for a long weekend

With the benefit of a three-day weekend, perhaps folks will want to take in the many exciting sounding sentencing-related articles I have recently noticed on SSRN.  Though halftime of this weekend's kick-off college football games may not afford all the time needed for a complete review, all these articles below surely would make for great conversation starters at any tailgate:

September 2, 2005 | Permalink | Comments (0) | TrackBack

An interesting Booker pair from the Eighth Circuit

Even on a quiet pre-holiday Friday, the Eighth Circuit can be counted upon for a few significant sentencing opinions.  In addition to pointing to the official summaries on the 8th Circuit's opinion page, I want to briefly spotlight US v. Engler, No. 04-4209 (8th Cir. Sept. 2, 2005) (available here) and US v. Funchess, No. 05-1064 (8th Cir. Sept. 2, 2005) (available here). 

Engler is a funny case because the Eighth Circuit ultimately rejects a Booker claim because the district court announced an identical alternative sentence, and yet it criticizes the district court for not doing a better job explaining the alternative sentence decision with this sweeping language:

To a defendant, the sentencing proceeding is perhaps one of the most important and grave life moments. It is the time that a person is faced with the prospect of confinement for many years in a federal prison, often followed by an extended period of supervised release. Given the Supreme Court's clarification of what considerations should guide sentencing decisions, we consider it a very small burden upon the district court to explain its consideration of the § 3553(a) factors and their impact on the sentence imposed. It ought not be the job of this court, nor the defendant, to attempt to divine the motivation of the district court at sentencing in the penumbra of the record.

Funchess is a case involving a similar problem, but with a different result.  In Funchess, the district court failed to explain the basis for its determination that the defendant was responsible for more than two kilograms of crack cocaine.  The Eighth Circuit "invited supplemental, postargument briefs on the issue of what evidence existed to support the two kilogram finding [but the] government was not able to cite to any evidence in the record."  Consequently, the Funchess court had to concluded "there is insufficient evidence to support the two kilogram finding."   I guess for now this is a case whether the battle over the burden of proof (details here, commentary here) may not matter.

September 2, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Judge Adelman on extraordinary acceptance of responsibility

Sentencing Hall of Famer Judge Lynn Adelman has added to his impressive body of post-Booker work through a recent opinion addressing extraordinary acceptance of responsibility and other offender characteristics in a case involving a seemingly sympathetic defendant.  All of US v. Milne, No. 05-CR-27 (E.D. Wis. Aug. 30, 2005) (available for download below) merits review, and here is a short excerpt:

Where appropriate, courts may grant additional consideration to defendants who demonstrate acceptance beyond that necessary to obtain a two or three level reduction under § 3E1.1. This is so because such conduct bears directly on their character, § 3553(a)(1), and on how severe a sentence is necessary to provide deterrence and punishment, § 3553(a)(2). Further, courts should encourage offenders to mitigate their misconduct voluntarily, whether by admitting it, paying restitution or making efforts to address substance abuse, mental health or other problems that contributed to it....

[A]fter Booker, courts are required to consider any § 3553(a) factor put forward by the defense that might make the guideline sentence inappropriate. In many cases, this requirement will necessitate consideration of the defendant's motive for committing the offense rather than merely the amount involved. A defendant who offends in order to support his family is less culpable and thus more deserving of leniency than one who steals from the vulnerable to finance a lavish lifestyle.  To distinguish between different types of defendants is not to treat the guidelines cavalierly but to take seriously the obligation to consider all of the § 3553(a) factors.

Download adelman_milne_opinion.pdf

September 2, 2005 in Booker in district courts | Permalink | Comments (1) | TrackBack

A new Guidelines Manual after Booker?

In this comment to my post on burdens of proof, a commentor going by the name "A government laywer" asserts that the "Commission issued a new Manual to reflect Booker" and that "the whole reason for issuance of the updated manual was to account for Booker." 

If it is true that the US Sentencing Commission has issued a new Guidelines Manual to account for Booker, I am embarrassed to have missed this important development (and also concerned that the USSC has not done a better job publicizing this important development).  But if it is not true, I am very troubled that a government lawyer working in this field may mistakenly believe that the current federal guidelines have been updated to "account for Booker."

Of course, it is highly possible that the commentor going by the name "A government laywer" is not, in fact, someone with any significant sentencing responsibilities in the post-Booker world.  Nevertheless, I found the comment sufficiently important and disturbing to justify this post and to seek the input of other readers in the comments.  Have I missed something big?

UPDATE:  Who says the federal government isn't responsive?  Not more than 20 minutes after I posted this item, I received a call from folks in the know at the US Sentencing Commission to confirm my understanding that the USSC has not (at least not yet) issued an updated Guidelines Manual to account for Booker.  (I was pretty confident this was the case, in part because the USSC has been quite effective at making its post-Booker work public and available.)  Thus, the question now is how "A government laywer" got such bad information and also whether we need to be concerned that some folks with significant post-Booker sentencing responsibilities may not be operating in a reality-based sentencing world.

September 2, 2005 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

September 1, 2005

Adding nuance to the burden battle

Over at the Ninth Circuit Blog, Steve Sady weighs in here on the burden of proof battle that has erupted between Judge Joseph Bataillon and Judge Richard Kopf in the District of Nebraska (details here).  Steve asks a number of questions about Judge Kopf's order (e.g., "is this an advisory opinion?") and asserts that, because "Judge Bataillon's opinion in Okai is limited to statutory construction, the criticism of his purportedly constitutional ruling appears unwarranted."  I, too, have been thinking through some nuances of this issue today, and here are some of my latest thoughts (to add to earlier thoughts assembled in this proof primer):

1.  What is the burden of proof Judge Kopf plans to apply after Booker?  The Supreme Court has never defined a constitutional minimum burden of proof at sentencing, and neither Congress nor the US Sentencing Commission has expressly provided a defined proof standard for federal guideline sentencing.  The Sentencing Reform Act does not speak to this issue at all.  The guidelines in commentary to 6A1.3 state that "The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case."  However, this guideline has not been officially re-examined since Jones, Apprendi, Blakely and Booker came on the scene, and the same commentary also states that, in each case, the "sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law." 

Though Judge Kopf is advising litigants he will not apply the proof standard of beyond a reasonable doubt, he does not indicate what proof standard he does plan to apply.  To my knowledge, this precise issue has not been directly and fully litigated before the Eighth Circuit, and I do not think dicta in a few post-Booker rulings conclusively establishes what proof standard should apply when guideline facts are in dispute.

2.  Do district judges have discretion (or inherent authority) in individual cases to define the applicable proof standard?  Because the Sentencing Reform Act does not speak to burdens of proof and because the guidelines are (intentionally?) vague on this issue, perhaps federal law simply does not define a proof standard but rather leave the applicable burden of proof to the discretion of district judges in individual cases.  This concept might seem peculiar within a sentencing system designed to reduce nationwide sentencing disparity, but one should realize that some other matters of sentencing procedure are clearly a matter of district court discretion — e.g., different district courts likely have different rules about what should appear in presentence reports, about when to have sentencing hearing, etc.

3.  Should we eschew a single applicable proof standard for all guideline determinations?  In a lot of my post-Blakely scholarship, such as my Conceptualizing Blakely piece and a forthcoming Stanford Law Review article, I have been urging a distinction between offense conduct and offender circumstances at sentencing.  Perhaps such a distinction should be relevant for developing applicable proof burdens at sentencing.  Or perhaps the magnitude of the impact of the determination on the sentencing should be a central consideration with a sliding scale of applicable proof standards.  A single proof standard my be more efficient, but it may not always be just.

September 1, 2005 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Judge Tjoflat speaks out (again) on the 11th Circuit's approach to plain error

Last week, as detailed in this post, the 11th Circuit's Judge Hill wrote separately to assaile his circuit's refusal to consider Booker claims not raised in an initial brief.  Today, in US v. Thompson, No. 04-12218 (11th Cir. Sept. 1, 2005) (available here) it is 11th Circuit Judge Tjoflat's turn to write separately, and he does so to criticize the circuit's approach to Booker plain error (which he has done before, as detailed here, in his dissent from the denial of rehearing en banc of the circuit's key Rodriguez case which defined the court's approach to Booker plain error ).

Judge Tjoflat's concurring opinion in Thompson is fascinating and should be read in full.  Here is a lengthy sample to whet your interest:

The court's opinion illustrates one of many problems with the Rodriguez standard or, as I coin it, the "magic words" approach to plain-error review.  Under Rodriguez, we do not generally reverse a sentence unless the district court has stated on the record that the guideline sentence is too high — and, by implication, unfair and unjust — that it would select a lower sentence if the law allowed it to do so, and that it is in general dissatisfied with the punishment provided for by democratically empowered lawmakers.  That is, we vacate a sentence only where the judge has spoken some combination of these "magic words."....

A district judge who makes such comments may do so in the sincere belief that over time he or she, along with other like-minded judges, will persuade the Sentencing Commission or Congress to revise severe mandatory sentences. The judge may also think he or she is simply giving the defendant or his family a bit of encouragement.  Or the judge may simply hope that the defendant will not hold a lengthy sentence against the judge personally. The least charitable view, however, is that the judge is just shooting the breeze and, in the process, doing the defendant and society a great disservice.

When a judge tells a defendant that his sentence is unjust and unfair, the defendant is inclined to believe him.  The defendant is, therefore, unlikely to accept the justice of his punishment and enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.  The judge may also unwittingly encourage the defendant to persist in attacking his sentence on direct appeal and collateral review, notwithstanding that its substance and the manner of its imposition are legally correct. After all, why shouldn't the defendant appeal a sentence that even the judge criticized as too severe? Finally, by openly disparaging the defendant's sentence, the judge fosters disrespect for the rule of law....

The Rodriguez rule encourages judges to continue opining on the record as to the fairness of sentences they impose in individual cases.... Supreme Court precedents upholding mandatory minimums based on extra-verdict judicial findings and extra-verdict enhancements based on prior convictions are now thought by some to be in doubt.  Judges who are required to impose what they deem to be unfair or unjust sentences as the result of such laws are encouraged by Rodriguez to state their criticisms on the record.  Moreover, beyond these immediate issues, there will always be a possibility that some unanticipated ruling will, post-sentencing, call into question a sentence on a ground not advanced in the district court, thereby triggering Rodriguez's "magic words" requirement.  Thus, any time a judge is required to impose an "unjust" sentence, he should, according to Rodriguez, tell the defendant all about the injustice being done to him so that the defendant can receive the benefit of any subsequent appellate decisions. Finally, even putting aside Rodriguez's impact on future sentencing hearings, I find it troubling that our decisions applying its standard appear to give past comments of this sort the imprimatur of this court. The logical implication of our cases is that such statements are at least harmless — if not desirable — because we reward the defendant based on their presence in the record.

September 1, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Judge Kopf takes on Judge Bataillon on the burden of proof

When Booker was handed down, I likely would not have predicted that the District of Nebraska would become the hotbed of sentencing debates.  But I just received an amazing memorandum and order which reflects a brewing battle royale over sentencing procedures there. 

As detailed in recent posts here and here and here, Judge Joseph Bataillon (who sits in Omaha) last week issued a significant decision on due process and burdens of proof in US v. Okai, 2005 WL 2042301 (D. Neb. Aug. 22, 2005), in which he decided that he should not base "any significant increase in a defendant's sentence on facts that have not been proved beyond a reasonable doubt."  In response, Judge Richard Kopf (who sits in Lincoln and whose colorful sentencing opinions are well known to readers of this blog) has filed memorandum and order which asserts, inter alia, that "Judge Kopf will not follow Judge Bataillon's 'reasonable doubt' standard at sentencing."

Judge Kopf's brief memorandum, which pulls no punches, can be downloaded below.  Here are some highlights:

In the non-death-penalty context, I respectfully disagree with [Judge Bataillon's] assertion that the Fifth Amendment requires a judge to find facts beyond a reasonable doubt when sentencing a defendant who has been previously found guilty after a trial or a plea that complies with Constitutional requirements.  Nothing in Booker, Blakely, or Apprendi compels or justifies such an assertion. Indeed, one need only read the cases Judge Bataillon cites to recognize the legal weakness of his views. Once the ordinary criminal has been found guilty by plea or trial that complies with the Constitution, there is no applicable precedent for cloaking an undisputably guilty person with the Constitutional protections intended for the innocent.

If the Fifth Amendment is to be expanded beyond any currently recognized legal boundaries, that decision should be left to the Court of Appeals or the Supreme Court, bodies far better suited than individual district judges to "discovering" new Constitutional rights. Booker and its (tangled) predecessors do not provide a legitimate invitation for district judges to implement their personal policy views about proof standards. See, e.g., United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc) ("Nothing in Booker suggests that sentencing judges are required to find sentence-enhancing facts beyond a reasonable doubt under the advisory Guidelines regime.").

In the end, and while what Judge Bataillon proposes may be good policy (although I doubt it), his newly discovered Constitutional right to "proof beyond a reasonable doubt" at sentencing is like the mythological chimera (a fire-breathing she-monster with a lion's head, a goat's body, and a serpent's tail).  It is the product of an agile mind, but it has no claim to the here and now.

Download kopf_on_burden_of_proof.pdf

September 1, 2005 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Israeli proposal for sentencing guidelines

I rarely cover international sentencing developments, primarily because I can hardly keep up with all the news on domestic fronts.  Nevertheless, this article coming from Israel caught my eye for its report on a proposal from the Israeli Justice Ministry for the development of sentencing guidelines.  Interestingly, as the article notes, "High Court judges, including High Court president Aharon Barak, are said to strongly support the proposal." The article closes with a paragraph which suggests that Israeli officially are not fully up-to-date on all the latest Booker developments (or perhaps are very informed about the prevalence of federal mandatory minimum sentences):

"The legislation will act as a guideline for judges, similar to those already adopted in other countries, but unlike the legislation in the United States by which judges have almost no room for consideration when passing judgment," a justice ministry official said.

September 1, 2005 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Still more criticism of House anti-gang bill

In May, the US House of Representatives passed anti-gang bill, HR 1279, which includes many new and increased federal mandatory minimum sentences (background here and here).  That bill, as detailed in posts here and here and here, generated an enormous amount of criticism in newspaper editorials back in May.  And, thanks to this informative post at TalkLeft, I now see that the Washington Post this morning has this potent editorial on the bill.  Here's a snippet:

A bill backed by the Bush administration and already passed by the House would unwisely federalize many local street crimes, stripping them from state prosecution if they could be tied even tenuously to gang activity. The so-called gangbusters bill would also establish mandatory minimum sentencing requirements, which remove much flexibility from sentencing and make little allowance for the circumstances of individual defendants; similar federal and state schemes have proved unfair and harmful....

Bush has proposed spending $150 million over three years to prevent gang involvement, with the funds to be dispersed through grants to faith-based and community organizations that attempt to steer at-risk youths away from gangs and into supportive social programs. The House and Senate have each cut that request but appear likely to appropriate some funds. The success of that program, not just draconian sentencing or increased numbers of federal investigations and prosecutions, will be a critical test of whether the administration's commitment to combating gangs is real or just a rhetorical priority.

September 1, 2005 in Legislative Reactions to Booker and Blakely, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

August 31, 2005

Mental illnes and the death penalty

In the wake of Indiana Governor Mitch Daniels' recent decision to commute, to life without the possibility of parole the death sentence of Arthur Baird, the Fort Wayne Journal Gazette has this effective little article exploring the issue of executing the mentally ill.  Here's one notable quote from the article: "'There's a sense this issue is probably the next big one on the death penalty front for the court to finally make a determination on," said Curt Goering, senior deputy executive director of Amnesty International-USA."

August 31, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Because Ameline was not quite in time

The Ninth Circuit today, at the end of its opinion in US v. Sanders, No. 03-50471 (9th Cir. Aug. 31, 2005) (available here), resolved a little issue about the "limited remand" Booker plain error approach that earlier this year had the Second Circuit all worked up.  The issue concerns how to remand when the original sentencing judge has retired or died and so is unavailable to "quickly and accurately decide whether he or she would have issued a materially different sentence had the guidelines been advisory."

The Second Circuit faced the issue in United States v. Garcia, 413 F.3d 201, 226 (2d Cir. 2005), and adopted a modified limited remand approach.  Here's what the Ninth Circuit says about this issue, which it left open in Ameline, in its Sanders decision today:

We believe the Garcia modified limited remand approach is not limited in any material sense.  Accordingly, rather than obscure the issue with misleading terminology, we elect to vacate the original sentence and remand for a full resentencing hearing.  Because the purposes underlying Ameline are frustrated by the subsequent unavailability of the original sentencing judge, we hold that under these circumstances the appropriate response to Booker error is to vacate the original sentence and remand for a full resentencing hearing.

August 31, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Crimes of violence and another notable sentencing day at the Eighth Circuit

The Eighth Circuit, which can be counted upon for notable sentencing cases nearly every day, issued today four published opinions with signficicant sentencing discussions.  For most of these cases, I will just point readers to the official summaries on the 8th Circuit's opinion page, but I do want to give some attention to the legal issue and disposition in US v. Lindquist, No. 04-3753 (8th Cir. Aug. 31, 2005) (available here).

Lindquist itself is not all that exceptional, except that it provides another amazing example — and there are many recent circuit cases with other examples — of how broadly the guidelines definition of a "crime of violence" has been interpreted.  In Lindquist, a panel of the Eighth Circuit affirms "the district court's holding that operating a vehicle without the owner's consent is a crime of violence as defined by § 4B1.2."  The Lindquist case especially caught my eye because it prompted Judge Heaney to write separately to restate his view "that our circuit has far too broad a conception of what the guidelines mean by stating that violent crimes include conduct that presents a serious potential risk of physical injury to another."  Here are portions of Judge Heaney's noteworthy opinion:

The district court increased Lindquist's base offense level because he had prior violent-crime convictions. Those Iowa state court convictions resulted from joyriding on an all-terrain vehicle before abandoning it in a field (operating a motor vehicle without the owner's consent), and waiting in a car while Lindquist's friend opened an unlocked pickup truck door and stole its stereo (third-degree burglary). It conflicts with the very concept of a crime of violence to include these offenses in that category....

The purpose of crimes-of-violence enhancements is to treat violent criminal history more seriously than non-violent criminal history. It is not hard to conceive scenarios in which non-violent felony crimes could become violent, but, in my view, we ought not trivialize this guideline section's purpose by expanding the category too broadly.  Here, the result is that James Lindquist's sentence is increased substantially because of the "violent felony" of joyriding on a recreational vehicle.

The majority opinion remands Lindquist's case for resentencing due to an erroneous guidelines calculation, and I agree with that result. As the majority notes, the district court is now presented with the opportunity to resentence Lindquist under the advisory guidelines regime. We are not presented with the issue of whether a guidelines sentence for Lindquist would be unreasonable.[FN6]  With the increased latitude Booker bestowed on a district court's determination of the ultimate sentence, the district court in this case should consider whether a guidelines sentence would further the statutory sentencing goals of 18 U.S.C. § 3553(a).

[FN6] A panel of our court recently held that a guidelines sentence "is generally indicative of reasonableness." United States v. Shannon, 414 F.3d 921, 924 (8th Cir. 2005). I do not believe the appropriately calculated guidelines range is to be given any more weight than any other factor laid out in 18 U.S.C. § 3553(a). While we are not faced with the issue here, a defendant whose guidelines sentence was increased significantly solely due to the characterization of non-violent felonies as violent crimes could make a persuasive argument that a sentence within the guidelines was nonetheless unreasonable in view of § 3553(a)'s other factors.

August 31, 2005 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (2) | TrackBack

A post-Booker burden of proof primer

I have already highlighted, in posts here and here, Judge Joseph Bataillon's significant recent discussion of due process and burdens of proof in US v. Okai, 2005 WL 2042301 (D. Neb. Aug. 22, 2005).  And, inspired by Steve Sady's effective coverage of Okai and these important topics in this post at the Ninth Circuit Blog, I have assembled below just some of my major post-Booker posts on burden of proof issues:

August 31, 2005 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

More litigation over lethal injection

Thanks to Howard's post here, I see that a panel of the Eighth Circuit in the late afternoon on Tuesday voted 2-1 to grant an emergency stay to Missouri death-row prisoner Timothy Johnston.  But, as further detailed in this later news report, hours later "the full Eighth Circuit bench overruled the stay at the request of Missouri Attorney General Jay Nixon." 

As the newspaper articles explain, Johnson's main legal claim is that "Missouri's practice of lethal injection threatened him with a painful death that would violate the U.S. Constitution's bar on cruel and unusual punishment."  As detailed in recent posts here and here and here, Missouri and other states have recently confronted a number of constitutional challenges to their lethal injection protocols.

UPDATE: As detailed in news accounts here and here, Timothy Johnston was executed by the state of Missouri early Wednesday morning.

August 31, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

August 30, 2005

On departure review and reasonableness from the 11th Circuit

The Eleventh Circuit today in US v. Winingear, No. 05-11198 (11th Cir. Aug. 30, 2005) (available here), had an opportunity to speak to the review of departure requests and the reasonableness standard.  Here are some snippets:

We do not apply the reasonableness standard to each individual decision made during the sentencing process; rather, we review the final sentence for reasonableness.... After Booker, our review of decisions regarding downward departures remains limited.... Although the Supreme Court in Booker excised section 3742(e), it left section 3742(a) intact ... and, therefore, we lack jurisdiction to review the decision of the district court not to apply a downward departure....

The government urges us to hold that sentences within the Guideline range are per se reasonable, but we need not address whether or how much deference is owed sentences within the applicable Guideline range to determine that Winingear's sentence was reasonable. The district court imposed a sentence one-tenth the length of the twenty-year statutory maximum sentence for mail fraud that does not affect a financial institution. 18 U.S.C. § 1341. Winingear defrauded 21 people of a total of $19,600, had multiple previous convictions, committed this crime while still under sentence for a previous crime, violated his bond, and threatened to murder arresting officers as he fled from them. The district court took care that its sentence provided Winingear with needed medical care. In the light of the factors outlined in section 3553(a), the sentence of the district court was reasonable.

August 30, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Fascinating Booker pipeline plea case from the Seventh Circuit

The Seventh Circuit, because it found the federal guidelines unconstitutional in July 2005 after Blakely and before the Supreme Court made it official in January 2005, probably has to sort through more "Booker pipeline" issues than other circuits.  And, following a pair of interesting pipeline dispositions from last week,  today the circuit gives us the fascinating US v. Berheide , No. 04-3440 (7th Cir. Aug 30, 2005) (accessible here). 

The heart of Berheide concerns loss calculations, but what has my attention is the Seventh Circuit's apparent approval (and thus indirect endorsement) of a plea agreement which provides for the guidelines to be treated as mandatory and also provides for the judge at sentencing to make findings of fact using the beyond a reasonable doubt standard of proof.  Stressing the contract principles behind plea agreements, the Seventh Circuit essentially enforces these plea terms, and (after finding a loss calculation error) remands "for resentencing under the sentencing guidelines, as mandatory."

Perhaps readers can help me out here, but my first instinct is to question whether a plea agreement really can, in fact, properly provide for a defendant to be sentenced under a system that has been ruled unconstitutional.  If such a plea agreement is sound, does anything prevent plea agreements from being developed and now executed in on-going cases that call for the guidelines to be treated as mandatory?

August 30, 2005 in Booker in the Circuits | Permalink | Comments (4) | TrackBack

In praise of Okai and its burden of proof insights

In this post praising some notable recent district court decisions, I spotlighted US v. Okai, 2005 WL 2042301 (D. Neb. Aug. 22, 2005), in which Judge Joseph Bataillon continues the strong work on due process and burdens of proof that he started in US v. Huerta-Rodriguez right after Booker (details here).  I have now had a chance to give Okai a close read, and its many Booker and burden-of-proof insights merit additional attention. 

Everyone working in the federal sentencing trenches should be sure to give Okai (which I now am able to provide for download below) a full read ASAP.  Among the passages that garnered my attention is the following section that suggests that the burden-of-proof aspects of Apprendi and Blakely merit retroactive application:

Although a misallocation of factfinding responsibility (judge versus jury) does not warrant retroactive application, Schriro, 124 S. Ct. at 2523, the same cannot be said for the retroactivity of application of a preponderance of evidence standard as opposed to a reasonable doubt standard.  See Hankerson v. North Carolina, 432 U.S. 233 (1977) (giving retroactive effect to rule requiring proof of all elements of crime beyond a reasonable doubt and voiding presumptions that shift the burden of proof to defendant); Ivan v. City of New York, 407 U.S. 203, 205 (1972) (holding that the purpose of a reasonable doubt standard is "to overcome an aspect of a criminal trial that impairs the truth-finding function, and Winship is thus to be given complete retroactive effect"). Application of a lower standard of proof may be an error that significantly affects factfinding accuracy and undermines society's confidence in the result of the trial. See Schiro, 128 S. Ct. at 2523.

Download bataillon_okai_opinion.pdf

August 30, 2005 in Apprendi / Blakely Retroactivity , Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Clemency for mentally ill killer in Indiana

As detailed in this article and this article, Indiana Governor Mitch Daniels yesterday commuted to life without the possibility of parole the death sentence of Arthur Baird, who was scheduled to be executed by the state tomorrow for murdering his parents.  By all accounts, Baird suffered from significant mental illness, although Governor Daniels' commutation decision cited an array of "unusual, probably unique" circumstances for calling off the execution.  Moreover, as one article details, "Daniels acted after a 3-1 vote last week in which the Parole Board recommended against clemency for Baird and after a 3-2 vote by the Indiana Supreme Court to let Baird's execution proceed."

This article provides the most details on Governor Daniels' statement supporting his decision (which I cannot yet find on-line).  Interestingly, the editorial pages of the Indianapolis Star and the Fort Wayne Journal Gazette and the Evansville Courier & Press and the Journal and Courier have all weighed in with support for the Governor's decision.

Michael Ausbrook at INCourts comments on the clemency decision in this post, which reminds me that, as detailed here, in January 2005 out-going Indiana Governor Joe Kernan also commuted a death sentence.  As Michael notes: "That's two in a year. By two different governors. Of two different political parties."

UPDATE: A helpful reader has helped me find Governor Daniels' executive order commuting Arthur Baird's death sentencing at this link.

August 30, 2005 in Clemency and Pardons, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

The death penalty for doctors?

This AP report from Texas (where else?) indicates that a group of Texas prosecutors believe that "Texas doctors who perform abortions without parental approval or after the third trimester could face capital murder charges because of a new law that takes effect this week."  Here are some more details from the article:

The Texas District and County Attorneys Association has outlined that scenario in its new book updating the Texas penal code and in public presentations around the state. The group says such charges could occur under the new law because of the 2003 fetal protection law.

Key legislators said Monday that wasn't their intent....  [A] doctor performing a prohibited abortion could be accused of capital murder because the capital murder law covers the death of a child under age 6, according to the prosecutors association.

"I think it's a little bit of a stretch," said Elizabeth Graham, director of Texas Right To Life. "The legislative intent clearly was not to incarcerate doctors or execute doctors who are performing abortions, illegal or otherwise." The chances are "very slim" that a district attorney would try such prosecution, she said. Sarah Wheat, executive director of NARAL Pro-choice Texas, said it can't be ruled out. "I think, when it comes to this issue, there is always someone who is looking for a political win," Wheat said.

August 30, 2005 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

August 29, 2005

The USSC's finalized priorities

Back in June, as detailed in this post, US Sentencing Commission on its website posted its "Federal Register Notice of proposed priorities and request for public comment."   And now, after "reviewing public comment received pursuant to the notice of proposed priorities,"  the USSC has issued this Notice of Final Priorities for its 2005-2006 amendment cycle.  It is an interesting read, which reveals that, inter alia, that the USSC is planning a "report on the effects of Booker on federal sentencing, including an analysis of sentencing data collected within the first year of that decision."

August 29, 2005 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

More on mandate recalls in the Ninth Circuit

Over at the Ninth Circuit Blog, Steve Kalar has this post discussing the recent important decision in US v. Crawford in which  a panel of the Ninth Circuit recalled the mandate and order resentencing in a case that apparently became final before Booker.  As I explained in this post, the Crawford decision seems to adopt what I would describe as a policy of equitable Booker retroactivity.  Here's a bit of Steve's take:

Does Crawford stand for the proposition that a defendant can seek relief through recalling the mandate even when there is a habeas timing bar?  The order doesn't say so, but that's a fair between-the-line reading....

This order may signal a habeas loophole for the right case.  Has a client blown ADEPA time limits? Doesn't seem to have bothered the Crawford panel — and the client who will be resentenced doesn't care if his relief came from habeas review or a recall of the mandate.

Steve also notes that the "recall the mandate" approach "has a colorful history" in the Ninth Circuit: "The last time the Ninth tried this approach it pitted the Circuit against the Supreme Court, and sparked a legendary intellectual battle between Judge Reinhardt and Judge Kozinski."

August 29, 2005 in Apprendi / Blakely Retroactivity , Booker in the Circuits, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

A record-long white-collar sentence in Atlanta

A helpful reader sent me this article from the Atlanta Journal-Constitution reporting on the imposition last week of what "federal authorities are calling the longest sentence ever handed down for mortgage fraud in the nation."  The defendant, Chalana McFarland, received a 30-year federal sentence for her role in skimming "more than $20 million in inflated mortgages on more than 100 homes throughout metro Atlanta."  Here are more details from the news article:

McFarland's mortgage fraud ring operated from mid-1999 through late 2002, preying on banks and other mortgage lenders.  All 19 of McFarland's co-defendants plead guilty and all but two testified when she was convicted in February.  McFarland's gang stole identities and falsified Social Security numbers, employment and income documents to qualify for loans....  McFarland was convicted [at trial] on 170 counts including conspiracy, bank fraud, wire fraud, mail fraud, identity theft, fraudulent use of Social Security numbers, money laundering, obstruction of justice and perjury.

McFarland denied any role in the crimes at Wednesday's sentencing and told U.S. District Judge Thomas W. Thrash Jr. that she was an inexperienced lawyer who was duped by her more experienced co-defendants. The judge chided McFarland for her lack of remorse for the loss and distress her schemes caused her victims and thousands of homeowners whose neighborhoods were harmed.  "Mortgage fraud is not a victimless crime. . . . Whole neighborhoods are affected," Thrash said before sentencing McFarland to 30 years in prison followed by five years supervised release. Thrash also ordered McFarland to repay $11,588,465.45 lost by companies and individuals.

"This is the longest sentence ever obtained in a mortgage fraud case," [U.S. Attorney David] Nahmias said after McFarland's hearing Wednesday.  "It's certainly an enormously long sentence for a first-time, white-collar crime defendant."

UPDATE: Peter Henning over at the White Collar Crime Prof Blog has this post discussing McFarland's sentence, and he also helpfully links to this press release from DOJ on the case.

August 29, 2005 in Booker in district courts, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (8) | TrackBack

District court tonic for the Booker blues

As suggested in recent posts here and here and here covering notable circuit court opinions, I am finding the Booker jurisprudence coming from most circuits to be uninspired, to say the least.  Many circuits seem eager to seize Justice Breyer's remedial opinion (and to ignore Justice Stevens' merits opinion) in order to maintain the old sentencing order as much as possible.  In my view, very few circuit rulings grapple fully with the true impact that Booker should (or at least could) have on federal sentencing realities.

But, as I make a habit of scanning (and getting disappointed by) circuit court sentencing opinions, I should remember that the most important post-Booker action takes place in the district courts, since only a small percentage of all federal sentencing decisions are appealed.  I should also remember that the sentencing opinions coming from the district courts provide a needed and satisfying tonic whenever I am suffering from the Booker blues.

I was heartened this weekend when I found some time to explore some notable district court sentencing rulings handed down this month.  I have previously noted a few noteworthy decisions from early August, such as Judge Adelman assailing mandatory minimums in Alexander and Judge Weinstein exploring rehabilitation in Hawkins.  And anyone looking to see (and be encouraged) by additional Booker action should be sure to check out these more recent district court rulings:

The recent decision that excites me the most comes from Judge Joseph Bataillon in US v. Okai, 2005 WL 2042301 (D.Neb. Aug. 22, 2005).  In Okai, Judge Joseph Bataillon continues the strong work on due process and burdens of proof that he started in US v. Huerta-Rodriguez right after Booker (details here).  Here is a brief selection from the extended opinion in Okai (which is full of Booker insight and nuance):

Under the circumstances, the court finds that it should err on the side of caution in protecting a criminal defendant's constitutional rights. The principal of constitutional avoidance mandates that the federal sentencing statutes should be construed to avoid the difficult constitutional question of whether the imposition of a harsher sentence — whether characterized as a Guidelines sentence, a departure, or a deviance — violates due process when the greater punishment is based on facts found under a standard lower than proof beyond a reasonable doubt.  Moreover, whatever the constitutional limitations on the advisory sentencing scheme, the court finds that it is not "reasonable" to base any significant increase in a defendant's sentence on facts that have not been proved beyond a reasonable doubt.

August 29, 2005 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

August 28, 2005

Brave New Justice and sentencing issues

Professor Jeffrey Rosen has this thought-provoking cover story in today's New York Times Magazine, which considers "a Brave New World of constitutional disputes" and the role of "a Supreme Court of the future [as it faces] cases arising from the technological and social changes of the coming decades."  Rosen's article is a fascinating read as we gear up for "the first new justice of the 21st century," but sentencing issues unfortunately do not find their way into his discussion. 

Inspired by Rosen's forward-looking perspective, my mind raced to sentencing issues as we prepare for a Brave New Justice.  Below I have briefly outlined just some of the sentencing issues I expect SCOTUS to face in the coming years and decades.

1.  Continued Blakely/Booker fall-out.  I outlined in this post just some of the post-Blakely and post-Booker questions that need immediate Supreme Court attention; the Supreme Court may have to (and certainly should) take up a number of post-Blakely/Booker cases each Term for the foreseeable future.  (Some prior posts exploring how a Justice Roberts might impact the Supreme Court's Blakely/Booker jurisprudence are linked here.)   

2.  Continued capital sentencing issues.  The Supreme Court has been struggling with an array of death penalty issues for more than three decades, and the Court's work and cert. choices the last few terms suggest the current Justices remain eager to continue pursuing the constitutional regulation of capital punishment.  Especially given Justice Stevens' recent speech to the ABA and the Court's cert. grant in four capital cases already for the coming term, the Court seems likely to be actively involved in death penalty litigation for the foreseeable future.  (Prior posts exploring how a Justice Roberts might impact the Supreme Court's work in the death penalty arena are assembled here, and some of my previous kvetching about the Supreme Court's expenditure of so much time and energy on death penalty cases can be found here and here and here and here and here.)

3.  "Risk assessment" approaches to sentencing.  Turning from current controversies to future issues, I think that continued development of data mining technologies and increased use of risk assessment instruments at sentencing could present interesting and challenging constitutional issues.  A host of constitutional questions may arise when judges extend sentence lengths or otherwise impose different sentencing terms by relying solely on statistical data indicating that persons of a certain gender or race are more likely to re-offend.

4.  Use of new technologies to monitor (and alter?) offenders.  Electronic monitoring of offenders or alteration of criminal tendencies through drugs (e.g., chemical castration) are no longer only the stuff of science fiction novels.  As such technologies advance, and especially if they prove less costly and less intrusive than traditional incarceration, we should expect to see more and more jurisdictions experimenting with new technological responses to crime.  A host of constitutional challenges are likely to work their way through the courts if (when?) such technologies become a common component of the criminal justice system.

UPDATEA helpful reader has followed up by pointing me to this fascinating National Institute of Justice paper entitled "Technocorrections": The Promises, the Uncertain Threats.  Though written five years ago, the paper remains very timely, especially because it includes a long vignette exploring the use of new technologies for dealing with released sex offenders.  Here is an opening paragraph:

Emerging technologies in three areas — electronic tracking and location systems, pharmacological treatments, and genetic and neurobiologic risk assessments — may be used in technocorrections. Diverse, converging cultural forces are promoting them.  While these technologies may significantly increase public safety, we must also anticipate the threats they pose to democracy.  The technocorrectional apparatus may provide the infrastructure for increased intrusiveness by the state and its abusive control of both offenders and law-abiding citizens.

August 28, 2005 in Who Sentences | Permalink | Comments (1) | TrackBack

Sunday stroll around the blogosphere

A morning blogosphere stroll leads to a number of notable items:

August 28, 2005 | Permalink | Comments (0) | TrackBack

Immigration offenses and fast-track disparity

This morning's Milwaukee Journal Sentinel has this interesting article discussing and questioning the long sentences that are sometimes given to immigrants who enter the United States illegally. Here are a few highlights:

Nationwide and in the Eastern District of Wisconsin, the number of people charged with the federal crime known as "illegal re-entry after deportation" has increased exponentially since 2001.... Proponents say sending offenders to federal prison before forcing them out of the country again makes them think twice about coming back once they're released.... Critics question the effectiveness of the approach, since recidivism rates are impossible to track. They point out that many illegal re-entrants who get long sentences because of past criminal records aren't dangerous.

Some Wisconsin-based federal judges have criticized the process in their rulings.  It isn't right for Wisconsin defendants to be sentenced more harshly than illegal immigrants discovered in states bordering Mexico, simply because the sheer number of cases there would overwhelm the courts otherwise, the judges say. The "fast-track" plea bargains used in border states minimize deterrence just where it's needed most, they say....

By a conservative estimate, U.S. taxpayers are spending some $200 million a year to keep illegal re-entrants in prison, according to a Journal Sentinel analysis.... Robert J. McWhirter, an assistant federal defender in Arizona and author of a book on immigration law, questions whether it's worth it. "The penalty structure is far too expensive of a way to get the amount of deterrence you get," he said. "You get all the deterrence you're going to get with two years in prison."

The story also includes a discussion of two notable immigration cases and thoughtful quotes from a number of persons involved in federal sentencing decision-making.

August 28, 2005 in Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2) | TrackBack