Sentencing Law and Policy

Around the blogosphere

Lots of interesting items to be found around the blogosphere.  Let's go alphabetically:

• At the ACSBlog, this post by Michael Mannheimer asks, "Is Alito the State's Advocate in Criminal Cases?"

• At PrawfsBlawg, this post by Will Baude follows up on this debate over a special capital court and also has some interesting comments about the President's pardon power.

• At SCOTUSblog, this post does a great job previewing the habeas case that SCOTUS will hear on Monday.

• At SW Virginia law blog, this post discusses and reflects on a notable recent application of a federal mandatory sentencing term.

More academic arguments for Blakely retroactivity

Though the Supreme Court seems to be in no rush to address Blakely or Booker retroactivity (details here) student scholars continue to address the important retroactivity issue.  As previously detailed here, my terrific research assistants has an article in the Ohio State Law Journal entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions."  And now I have seen two other similar efforts:

• The Cardozo Law Review's latest issue includes a student note entitled "Is Blakely v. Washington Retroactive?" by Haifeng Peng.  Available here, the article argues that Blakely should be found retroactive on a number of theroies.

• The Wisconsin Law Review's forthcoming issue includes a Comment entitled "Reasonable Doubt in the Rear-View Mirror: The Case for Booker/Blakely Retroactivity in the Federal System" by Nic Eichenseer.  I have kindly been given permission to make the article available here: Download blakely_retroactivity_eichenseer_final_wpermission.doc

I wonder what might happen if every defendant subject to unconstitutonal judicial factfinding whose sentence was final before Blakely and Booker were to file habeas petitions with all three of these articles attached. 

Interesting Olis developments

As detailed in this AP article, Jamie Olis, the former Dynegy executive whose 24-year federal sentence case was reversed by Fifth Circuit's about a month ago (prior coverage here and here), was back in court on Friday.  Here are some interesting details from the court appearance:

US District Judge Sim Lake ... said Friday he would re-sentence Olis on Jan. 5, alongside two other former Dynegy executives who pleaded guilty to conspiracy in the scheme, Gene Foster and Helen Sharkey.

Olis' appeal lawyer, David Gerger, had asked the judge to allow Olis to be released from prison pending a re-sentencing. Lake instead offered to order that Olis be temporarily transferred to a federal lockup in downtown Houston from the Oakdale, La., facility where he is housed until the hearing. "My inclination is not to release him to the free world," Lake said.

Foster, Olis' former boss, and Sharkey, a former in-house accountant, pleaded guilty to conspiracy in August 2003 for their roles.  Foster testified against Olis and implicated other former Dynegy executives -- including former finance chief Rob Doty -- but no one else has been charged.  Foster and Sharkey face no more than five years in prison and will be sentenced Jan. 5 as well.

Judge Lake's comment and decision not to release Olis is notable given that Jamie Olis has already served 18 months in prison.  (Recall that some are advocating that Olis now be sentenced to time served.)  In addition, scheduling the re-sentencing of Olis along with the sentencing of Foster and Sharkey adds an interesting set of new dynamics in what was already shaping up to be a very interesting Booker resentencing.  I especially wonder what the government will be recommending for each of these defendants.

On the changed politics of death

This op-ed from Friday's Washington Post calls Virginia Governor Mark Warner's decision to grant clemency to Robin Lovitt "a landmark in the nation's debate over capital punishment" which reflects a "a changed political climate."  In recent posts here and here and here and here, I have spotlighted a lot more recent signs of a changed politics and new culture around the death penalty. 

I agree that these political and cultural changes helped save Lovitt's life.  Now the question is whether they might save Stanley Tookie Williams' life (background here).

Critical dicta(?) for post-Booker appellate review

A sharp reader spotted that the 11th Circuit's decision today in Talley (discussed here) has some very important dicta(?) on a key post-Booker issue that I believe is being litigated in a number of circuits.  Talley says that "either a defendant or the government can appeal a sentence within the Guidelines range and argue that it is unreasonable."  However, I believe DOJ has been arguing in a number of circuits that, under the strict terms of 18 USC 3742, appellate courts lack jurisdiction to review a within-guideline sentence.

I surmise from the 11th Circuit's opinion that this important jurisdiction issue was not fully briefed in Talley.  But it now appears to have been implicitly decided.  I thus return again to the point made in this post: reasonableness review, by producing and perpetuating doctrinal confusion, may end up increasing rather than decreasing sentencing disparities in the wake of Booker.

Booker discussion topic: are departures obsolete?

At the end of a long opinion, which covers a lot of intricate guideline calculation issues, the Seventh Circuit in US v. Arnaout, No. 03-3297 (7th Cir. Dec. 2, 2005) (available here), says again that "the concept of 'departures' has been rendered obsolete in the post-Booker world."  Slip op. at 14.  The Court in Arnaout states, as it did in Johnson in October, that "what is at stake is the reasonableness of the sentence, not the correctness of the 'departures' as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory."

Given that the US Sentencing Commission has stressed that departures are not obsolete after Booker, and that certain kinds of departures are expressly encouraged and discouraged by the guidelines, I find the Seventh Circuit's obsolescence assertion curious and in tension with its view that a guideline sentence is presumptively reasonable.  The USSC (and Judge Cassell in his Wilson opinion and others) have sensibly argued that the guidelines comply with the mandates of 3553(a) because they incorporate a departure mechanism to allow for flexibility in application.  Is the Seventh Circuit saying that we should throw out all departures (many of which are integrated into particular guidelines), but still consider the rest of the guidelines presumptively reasonable?

I assume that the Seventh Circuit only thinks judicial departures are "rendered obsolete": I doubt the court means to suggest that prosecutors should no longer move for substantial assistance departures under § 5K1.1.  But the sloppy and provocative obsolescence assertion in Johnson and Arnaout would seem to put district courts and practitioners in a tough spot.  Is the Seventh Circuit saying that defense attorneys in Chicago should no longer request a departure based on aberrent behavior under USSG § 5K2.20?  Is it saying that district judges should no longer consider granting departures under USSG § 4A1.3 for inadequate criminal history?

Considering also the Seventh Circuit's sloppy discussion of post-Booker legal standards in Cunningham (discussed here), not to mention the trenchant points made by Judge Carnes of the 11th Circuit (discussed here), I am having more and more doubts about post-Booker appellate review.  I am starting to fear that reasonableness review, by producing and perpetuating doctrinal confusion, may end up increasing rather than decreasing sentencing disparities in the wake of Booker.

Eleventh Circuit opines at length about post-Booker sentencing and review

Capping off an eventful Booker week (details here), today in US v. Talley, No. 05-11353 (11th Cir. Dec. 2, 2005) (available here), an 11th Circuit panel spoke at length about post-Booker sentencing practices and its approach to reasonableness review.  Here are a few highlights:

[W]hen the district court considers the factors of section 3553(a), it need not discuss each of them.... [A]n acknowledgment by the district court that it has considered the defendant's arguments and the factors in section 3553(a) is sufficient under Booker....

The United States argues that a "sentence at the low end of the applicable advisory Sentencing Guidelines range is, per se, a reasonable sentence."  This argument does not comport with the Booker decision....

Although we reject the argument of the United States that a sentence within the Guidelines range is per se reasonable, we agree that the use of the Guidelines remains central to the sentencing process....

Although either a defendant or the government can appeal a sentence within the Guidelines range and argue that it is unreasonable, ordinarily we would expect a sentence within the Guidelines range to be reasonable.  After Booker, our ordinary expectation still has to be measured against the record, and the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both that record and the factors in section 3553(a).

Capital reading to mark a "grand" milestone

As detailed in this news report, North Carolina carried out the 1000th execution of the modern US death penalty era and execution 1001 is scheduled for this evening in South Carolina.  One way to reflect on this milestone is to keep up with some of the latest academic literature on the death penalty, such as:

• On Andy Warhol's Electric Chair from I Bennett Capers II

• No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty from Carol S. Steiker

• Confronting Death: Sixth Amendment Rights at Capital Sentencing from John G. Douglass

UPDATE:  Interestingly, as detailed in this AP report, the White House decided to mark the grand milestone with a statement that President Bush strongly supports the death penalty in the belief that "ultimately it helps save innocent lives."

A capital morning in the papers

This morning brings a host of interesting articles about the death penalty in major papers:

• The New York Times has this fine front-page piece by Adam Liptak on the Tookie Williams case and the modern state of capital clemency.  The article astutely details that "Governors once considered the commutation of a death sentence to be an act of mercy or grace.  In recent years, though, they have tended to act only to correct errors in the judicial system and, occasionally, to take account of mental illness or retardation."  Dan Markel notes here, with appropriate pride, that his recent Minnesota Law Review article gets discussed in the Times piece.

• The Washington Post has this fine front-page piece, entitled "More in U.S. Expressing Doubts About Death Penalty," which discusses Ruben Cantu's possible innocence and details recent death penalty trends.

• The Lawrence World-Journal has this interesting piece noting that Kansas Attorney General Phill Kline "said Thursday he may need U.S. Supreme Court nominee Samuel Alito on the court to successfully defend the Kansas death penalty."

The state of Booker appeals in the 11th Circuit

Law.com this morning has this article discussing the state of Booker appeals in the 11th Circuit.  The article reviews the interesting concurrences this week from Judge Tjoflat (discussed here) and Judge Carnes (discussed here).  The article also interestingly notes that the "11th Circuit has handled nearly 1,100 decisions in the past 10 months that pertain to Booker, according to a Lexis database search."

Lots of stories of death

Kicking off a month of death drama, the CNN website is full of death penalty stories tonight:

• this article reports on the approaching 1000th execution will likely take place in North Carolina tomorrow;
• this article reports on Singapore's execution of a young Australian for a drug crime; and
• this article reports on the death sentence given to a child killer in Florida.

Similarly, TalkLeft is blogging up a storm with strong posts about the Singapore case, about how the US shares capital company with China, Iran and Vietnam, and about the politics of capital clemency.

Minnesota Supreme Court limits reach of "prior conviction" exception

While the federal courts, aided by Booker, continue to undermine Fifth and Sixth Amendment procedural rights at sentencing (see, e.g., today's Second Circuit ruling on enhancing sentences based on acquitted conduct), many state courts continue to give Blakely and procedural rights at sentencing the respect they seem to deserve.  For example, the Minnesota Supreme Court today in Minnesota v. Henderson, 03-1898 (Minn. Dec. 1, 2005) (available here), limited the reach of the "prior conviction" exception to Apprendi and Blakely.

Henderson involves a state sentencing enhancement based on a determination of a "pattern of criminal conduct," which the lower court said was not impacted by Blakely because it is "a legal conclusion, not a finding of fact."  The Minnesota Supreme Court disagreed:

The relevant rule from Apprendi dictates that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt." Apprendi, 530 U.S. at 490.  The Apprendi Court made it clear that recidivism is a narrow exception to the general rule that all facts going to punishment must be found by a jury.  Therefore, the additional findings involved in the comparison and weighing of bad conduct go beyond the acceptable parameters of the recidivism exception, because they involve more than the fact of prior convictions.  We hold that the determination of a pattern of criminal conduct under Minn. Stat. § 609.1095 goes beyond solely the fact of a prior conviction and, therefore, the imposition of an enhanced sentence based on the district court's finding of a pattern of criminal conduct violated Henderson's Sixth Amendment right to trial by jury.

Second Circuit upholds sentencing based on acquitted conduct

The Second Circuit today in US v. Vaughn, No. 04-5136 (2d Cir. Dec. 1, 2005) (available here), rejects a number of constitutional challenges to post-Booker sentencing.  Most disconcerting for those who hoped Blakely might produce a real change in sentencing procedures, the Second Circuit in Vaughn holds that "after Booker, a district court may sentence a defendant taking into account acquitted conduct."

Here's are some key sections of the acquitted conduct discussion (though every part of the Vaughn opinion has passages of interest for those closely following post-Booker sentencing law):

As we have stated recently and reiterate in this opinion, district courts remain statutorily obliged to calculate Guidelines ranges in the same manner as before Booker and to find facts relevant to sentencing by a preponderance of the evidence.  See Garcia, 413 F.3d at 220 n.15; Crosby, 397 F.3d at 112.  Consistent with that obligation, district courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct, as long as the judge does not impose (1) a sentence in the belief that the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by the jury verdict, or (3) a mandatory minimum sentence under § 841(b) not authorized by the verdict....

On remand, the court is directed to consider all facts relevant to sentencing it determines to have been established by a preponderance of the evidence as it did pre-Booker, even those relating to acquitted conduct, consistent with its statutory obligation to consider the Guidelines. 18 U.S.C. § 3553(a)(4), (5).  We restate, however, that while district courts may take into account acquitted conduct in calculating a defendant's Guidelines range, they are not required to do so.  Rather, district courts should consider the jury's acquittal when assessing the weight and quality of the evidence presented by the prosecution and determining a reasonable sentence.

Long ago I explained in a series of posts (here are here and here) why I think, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing.  Critically, as detailed in those posts, Congress has never expressly provided by statute for preponderance to serve as the proof standard at federal sentencing.  Consequently, it is just flat wrong for the Second Circuit to suggest that district courts are "statutorily obliged ... to find facts relevant to sentencing by a preponderance of the evidence."  Tellingly, the Second Circuit can only cite to its own prior judicial decisions to support this (incorrect) assertion.

Followers of sentencing jurisprudence know how Watts first upheld the constitutionality of reliance on acquitted conduct and also understand why sentence enhancements based on acquitted conduct are still being approved by circuits after Booker.  But is anyone really proud that our Constitution is being interpreted to allow defendants, after they are acquitted by a jury of their peers, to be imprisoned by the state for longer periods of time based on acquitted conduct?  Would the Founders be proud of such an interpretation of their work?

Notable 7th Circuit dissent from denial of en banc consideration

A panel of the Seventh Circuit US v. Gipson (discussed here) rejected the claim that "a sentence based upon the guidelines is unreasonable because the guidelines punish crack cocaine offenses too severely relative to offenses involving powder cocaine."  And today, as the Seventh Circuit here denied a request to consider this issue en banc, "Judge Ann Claire Williams dissented from the decision not to rehear this case en banc and was joined in the dissent by Judge Terence T. Evans."  Accessible here, the dissent has this to say:

I voted to rehear this case en banc, as I think it raises several compelling issues important to our review for "reasonableness" after United States v. Booker, 125 S. Ct. 738 (2005).  First, this case raises the issue of the relationship between our prior case law holding that the United States Sentencing Guidelines' disparity between cocaine base and powder sentences is constitutional and the new post-Booker reasonableness standard.  Second, this case would allow this court to consider the threshold for rebutting the presumption of reasonableness that attaches to sentences within the Guidelines.  Third, the court could consider whether there are any provisions in the Guidelines that are facially unreasonable in the post-Booker world.

The harsh consequences of old criminal history

Earlier this week, I expressed concerns about the Cannon case from the Seventh Circuit in which an apparently small-time drug user, because of two minor state drug offenses from a decade earlier, was require to receive a mandatory life sentence.  Continuing the theme of the harsh federal consequences of a long-ago criminal history, consider today's First Circuit decision in Powell v. US, No. 05-2222 (1st Cir. Dec. 1, 2005) (available here). 

The ultimate legal issue in Powell is whether a 11-year-old state evasive driving offense qualified as a "violent crime" for purposes of sentencing the defendant to the mandatory minimum term of fifteen years imprisonment under the federal Armed Career Criminal Act (ACCA).  Though that legal issue is interesting, and well discussed in Powell, the decision really caught my eye because the defendant is ultimately receiving a 15-year term of imprisonment "for possessing shotgun that [Powell] says he inherited from his deceased father."  I wonder what the NRA might think of such a harsh federal sentence for inheriting a shotgun.

Important work on drug sentencing in New Jersey

As detailed in this Newark Star-Ledger article and this AP follow-up, the New Jersey Commission to Review Criminal Sentencing is about to produce an important report with powerful recommendations urging reforms to the state's drug sentencing laws.  Here are some highlights:

A blue-ribbon commission that reviewed the state's criminal sentencing laws will recommend next week that New Jersey reduce the size of drug- free school zones and eliminate mandatory minimum prison terms, Corrections Commissioner Devon Brown said yesterday....

The issue of drug-free zones has been the subject of heated debate for decades.  Supporters of the current laws say they are designed to keep children from being offered drugs as they walk to school. Critics say they have been used disproportionately against minorities in urban areas, where the combination of drug-free zones can blanket an entire municipality and guarantee anyone arrested for dealing drugs does a long stretch in prison....

The recommendation to reduce the size of the drug-free zones is aimed at preserving the Legislature's intent to keep kids safe from drugs while giving judges more discretion in crafting sentences, according to one of the sources.

My understanding is that the report from the NJ Commission will be released next week, and the AP story spotlights that "Ben Barlyn, the commission's executive director, said yesterday that the report would provide a wealth of data to back up the recommendations."  Based on these press accounts, I am hopeful the New Jersey report will be an example of the power of data and sound policy-making over political rhetoric, and also an example of the important work that expert sentencing commissions can do to address and help transform problematic sentencing issues.

Interesting discussion of fast-track disparities

Amidst the steady drumbeat of rejected habeas petitions based on Blakely or Booker, I found an interesting recent district court decision discussing sentencing disparities in immigration cases.  In US v. Duran, No. 04 CR. 1086, 2005 WL 3116173 (SDNY Nov. 21, 2005), Judge Victor Marrero explores various aspects of the "significant legal and sentencing policy debate [that] exists among district courts throughout the country" concerning immigration offense sentencing, especially because of the development of fast-track programs in some districts. 

Here are some notable passages from the notable discussion of these issues in Duran:

As a result of differences in interpretation of the Sentencing Guidelines in light of United States v. Booker, 125 S.Ct. 738 (2005), and 18 U.S.C. § 3553(a), substantial variations in sentences for illegal reentry cases have been produced in different districts. The effects will be most pronounced, and potentially even pernicious, in districts where judges of the same court split conceptually into different camps and impose sentences for this offense depending upon whether they accept or reject the double-counting and fast-track arguments as legitimate grounds to guide their sentencing decisions. By dint of that discord, a form of wheel-of-fortune effect may be emerging in some districts, in consequence of which the length of particular illegal reentry offenders' sentences will be determined, or even predetermined, by whether or not the judge randomly assigned the case conceptually recognizes the double-counting and fast-track considerations as decisive grounds for modifying the sentence produced by application of the Guidelines....

[T]he disparities between sentencing in fast-track and non-fast-track districts arise from prosecutorial decisions similar to an individual prosecutor's decisions to charge, to engage in plea-bargaining or offer cooperation agreements, or to a particular United States Attorney's Office's policies regarding charging or plea bargaining. Of necessity, a prosecutor's choice to charge certain offenders or offenses more severely than others or to enter into plea agreements with some defendants but not others involved in the same crime is bound to engender significant variations in the sentences that result in the same case or type of case, or from one district to another where different prosecutorial policies or social conditions may prevail.  But such inevitable, indeed probably common, sentencing disparities as regards other cases could not serve to warrant determination by a court in one district to impose sentences resting solely or even predominantly on the existence of that policy in another court or district.  To this degree this Court regards the illegal reentry cases not appreciably different from others that may raise similar prosecutorial policy issues, even if not with the same quantitative or geographic scope or level of formality that governs the fast-track program.  The Court also finds persuasive the view of the several judges in this district who have held that in and of itself sentencing disparities that arise as a result of the existence of fast-track programs in other districts do not warrant a departure from the guidelines.

December dramas for the death penalty

As detailed in this post, December 2004 was quite notable because it was the first month in over a decade in which no person was executed inthe United States.  December 2005 is also shaping up to be a noteworthy month for the death penalty for somewhat different reasons:

• On December 2, the 1000th execution in the modern death penalty era is likely to go forward (after a clemency grant to Robin Lovitt allowed Virginia to avoid this "grand" achievement).

• On December 7, the Supreme Court will be hearing arguments in two important capital cases, Oregon v. Guzek (No. 04–928) and Kansas v. Marsh (No. 04–1170).  More details on these cases, and other capital cases on tap this Term, are available here from the DPIC.

• By December 13, California Governor Arnold Schwarzenegger will have to decide whether to grant clemency to California death row inmate Stanley "Tookie" Williams in the highest profile capital case in many year.  More details on the Williams case are available in this prior post and its links, as well as in this long and effective post at the ACSBlog.

The Death Penalty Information Center continues to be one of the best places to follow all the action; the DPIC's What's New page always has interesting updates and information.

Wisdom from Judge Carnes on post-Booker appellate review

Wednesdays are often busy in the federal circuit courts (even around holidays), and today I already see notable criminal rulings from the Third, Fourth, Fifth, Sixth, Seventh and Ninth Circuits.  But the decision of the day — perhaps of the month — comes from the Eleventh Circuit in US v. Williams, No. 05-11318 (11th Cir. Nov. 30, 2005) (available here).

The per curiam opinion for the court in Williams is itself notable because a dozen pages are needed to resolve the "meaning of the word 'any' as it is used in US Sentencing Guideline § 2K2.1(c)(1)."  (Amazingly, this single "any" has produced two distinct circuit splits — that right, two circuit splits(!) — over the application of the federal guidelines.)  What makes Williams truly special is Judge Carnes' concurrence, which is chock full of wise insights about post-Booker appellate review.

To appreciate his fine work, Judge Carnes' opinion in Williams should be read in full.  Here is an sample (with cites omitted) to encourage review of the whole work:

The Booker decision did not free us from the task of applying the Sentencing Guidelines, some provisions of which are mind-numbingly complex and others of which are just mind-numbing.  Because the post-Booker regime requires "accurate advice" from the guidelines, we have held that the guidelines must be applied correctly.  The sword dance must still be done.  Its steps can be intricate and the music unrelenting, as this case shows....

This case is a good example of how we are spending our sentence review time.  In the course of reviewing the sentence in this simple-crime case, we have decided three guidelines issues, at least two of which are difficult enough to have produced circuit splits.... 

Therein runs a thread of madness through the method now in place.  We review and decide close, hair-splitting interpretive issues arising from guidelines that are only advisory, and we set aside sentences even though the district court, once its "misunderstanding" of the guidelines is corrected, is free to impose the same sentence, and usually will do so.....  If the federal court system had endless resources or light dockets, the post-Booker system of sentence review would make more sense, but the judicial world we inhabit is one of scarce resources burdened by heavy demands.  Of course, neither this Court nor the district courts can change the Booker guidelines sentencing regime and the appellate review system that applies to it.

Of sentencing interest in Alito questionnaire

Everyone can now access Judge Sam Alito's responses to the Senate Judiciary Committee's questionnaire at this link, and there are some interesting sentencing snippets in the document.  For example, Alito reports his status from 1988 to 1993 as an Advisory Board Member for the Federal Sentencing Reporter (when he wrote two interesting pieces for FSR discussed here and here).  Also, Alito lists his time as a member of the Constitution Project Sentencing Initiative as "2004 – present," which perhaps answers my query about whether he will continue to serve on this project as it continues to explore the impact of Blakely, Booker and the future of federal sentencing reform.

Relatedly, I see that, toward the end of long response about sppeches and talks, Judge Alito notes this event:

Panel discussion on sentencing sponsored by the Constitution Project and the American Constitution Society, March 9, 2005, Washington, DC.  Judge Paul Friedman of the United States District Court for the District of Columbia, Judge Nancy Gertner of the United States District Court for the District of Massachusetts, and I participated in a panel discussion on federal sentencing.  The panel discussed the effect of United States v. Booker, 125 S. Ct. 738 (2005) on the future of federal sentencing. A transcript of the panel discussion is supplied.

I recall noting this event way back when, but I never knew there was a transcript.  And I have now discovered that along with other materials, the Constitution Project has the transcript of this March event available at this link.  The transcript reveals that, though Judge Alito speaks only a few times during the event, all of his comments are knowledgeable and insightful and non-committal (and only a bit dated). 

Related posts:

• Will Alito continue with the Constitution Project's Sentencing Initiative?
• New insights on Alito and the post-Booker world
• An intriguing view of Judge Alito's view of guideline sentencing
• Why some defendants hope Alito is like Scalia

The real shame about shaming punishments

Because Dan Markel was involved in the Gementera shaming case (background here and here and here), I understand why he viewed the Supreme Court's denial of cert to be a shame.  But, after reading this AP story and this CNN story about the cert denial, I think the real shame is that a little case like Gementera gets so much attention from the media and others, while issues of much broader sentencing significance — like the imposition of a mandatory life sentence on a small-time drug user or the Supreme Court's failure to address Booker's retroactivity or the continued reliance on uncharged (and unproven?) conduct to increase sentences or the prospect of new (irresponsible?) crime legislation — get so little attention.

What really got me worked up was a quote at the end of the AP story:

Gementera's attorney, Arthur K. Wachtel, said he was disappointed by the Supreme Court's decision to dismiss the case without comment. "It's pretty rare that the Supreme Court has an opportunity to review a case involving appropriate punishment," Wachtel said.

HUH?!?!?  Even before Blakely and Booker, SCOTUS surely got hundreds (perhaps thousands) of cert petitions each year asking them to "review a case involving appropriate punishment."  In the wake of Blakely and Booker, the Court now likely receives hundreds (perhaps thousands) of such petitions each month.  But, because so little attention is paid to these cases, even some criminal defense lawyers are unaware of the many sad realities of our criminal justice system.

How about a whole new structure for federal capital appeals?

As I lamented in this post, debates over habeas corpus reform often get conflated with debates over capital punishment.  That concern — along with the latest blogosphere buzz about the Supreme Court's docket and Will Baude's great posts here and here suggesting we "move death penalty cases out of the Supreme Court to a specialized criminal court" — has me thinking about a whole new structure for federal appeals of state capital cases.

Here's the (crazy ivory tower?) idea: for state capital defendants, why not eliminate general federal habeas rights and instead create a single federal tribunal ("the unified federal capital court" or UFCC) in which state capital defendants have an appeal of right following direct state appeals and also following collateral state appeals?

This proposal needs to be considered in light of the current reality that federal habeas corpus currently serves as a (flawed and imperfect) federal "appeal of right" for state capital defendants after they have completed all state appeals.  Unfortunately, federal capital habeas actions are often ineffective and always inefficient.  Not all issues are cognizable in federal habeas and these cases clog the dockets of both federal district and circuit courts in active death penalty states. 

Instead of spreading this litigation around the country (where we often see very different results because of different judicial attitudes in, for example, the Fifth Circuit and the Ninth Circuit), we could consolidate all this federal appellate action in the UFCC.  I imagine the UFCC to be an "inferior" court: defendants (or states) losing in the UFCC could appeal to the US Supreme Court.  But SCOTUS would likely reject cert. except when the legal issues transcended the specialized universe of capital litigation or when the High Court was troubled by the direction in which the UFCC was moving the law.  (I surmise these basic dynamics now shape when SCOTUS decides to grant cert. in patent cases coming from the Federal Circuit.)

I am not sure there would be any certain losers as a result of this proposed transformation of federal capital appeals (although the judicial philosophies of the UFCC judges would surely impact outcomes).  I am sure that federal district and circuit courts, whose dockets would be freed from all the collateral capital litigation, would be certain winners under this new plan.  And this proposal could free debates about habeas corpus from the distorting influence of debates over the death penalty.

Clemency in Virginia delays execution 1000

As detailed in this AP story, "Virginia's governor on Tuesday spared the life of a convicted killer who would have been the 1,000th person executed in the United States since the Supreme Court allowed capital punishment to resume in 1976. Robin Lovitt's death sentence was commuted to life in prison without parole a little more than 24 hours before he was to be executed."

I wonder if the magic of round numbers helped save Lovitt's life.  Governor Mark Warner statement, which you can read at this link, of course does not mention the magic number 1000, but rather notes that evidence from the trial had been improperly destroyed, depriving the defense of the opportunity to subject the material to the latest in DNA testing.

As the 1000 executions website details, execution number 1000 is now likely to be in North Carolina this Friday.

More compelling capital commentary

Those inclined to think deeply about death penalty issues can thank the folks over at PrawfsBlawg for lots of new capital food-for-thought.  First, PrawfsBlawg founder Dan Markel has this essay at Slate discussing the Ruben Cantu case (background here) and other death penalty developments to argue that it is "time for Texas and other states to call a moratorium on executions."  Second, guestblogging at PrawfsBlawg, Will Baude has interesting posts here and here that ask "why we don't simply move death penalty cases out of the Supreme Court to a specialized criminal court."

Though I have many reactions to these new commentaries, I am finding that the current capital reflections draw me back to my work a few years ago putting together this symposium at Ohio State on "Addressing Capital Punishment Through Statutory Reform."  All the articles from that symposium remain quite timely more than three years later, and my own current feelings about the latest wave of death penalty debate are largely reflected in the concluding section of my Foreword to that symposium:

[John Stuart] Mill's insight about capital punishment's "impression on the imagination" merits considerable attention when contemplating the potential for, and direction of, future reforms of the death penalty and the entire criminal justice system.  Though the punishment of death may not significantly impact the behavior of potential killers, the awesomeness of this punishment indisputably does impact the behavior of our criminal justice institutions.  In particular, we are seeing today the ways in which the drama of the death penalty — the fact that we are, in Mill's words, "so much shocked by death" — fuels a genuine and considerable interest in legislators, and in the public at large, to be particularly cautious and conscientious before fully embracing and comfortably imposing the punishment of death.

The new public awareness of errors in capital cases combined with the death penalty's "impression on the imagination" now allows legislators to speak and act more soberly and realistically about a range of criminal justice issues pertaining to capital punishment.  Moreover, because all the major problems identified in the administration of the death penalty (for example, wrongful convictions, racial and other disparities, poor quality and funding of defense counsel) are not unique to capital punishment, but actually plague the entire criminal justice system, advocates who have traditionally opposed the death penalty because of due process and equal protection concerns should consider taking advantage of the unique opportunity presented by capital punishment's "impression on the imagination" to work toward developing legislative reforms which would be a step toward remedying problems that infest the entire criminal justice system.

In other words, I am suggesting that Mill's insight may actually point to a different sort of pragmatic, utilitarian argument for supporting (or at least tolerating) the death penalty. In modern America, capital punishment's "impression on the imagination" may be needed to ensure that our legal institutions do not get complacent about problems that pervade our criminal justice system, and may even provide a critical means to engineer remedies to system-wide problems through well-crafted legislative reforms.

Long (above-guideline) sentence for state senator

This AP story reports on a high-profile federal sentencing in a political corruption case from Georgia.  (The White Collar Crime Prof Blog has background on the case in this post.)  Here are highlights from the report:

Former state Sen. Charles Walker was sentenced to more than 10 years in federal prison on Tuesday. Judge Dudley Bowen Jr. sentenced the senator to serve 121 months in prison for tax evasion, mail fraud and conspiracy. The judge chose to lengthen Walker's sentence beyond federal guidelines as a "deterrent for others who might be similarly inclined."

I wonder if this long (above-guideline) sentence might set some sort of a record in political corruption cases.  I also wonder if the many other politicians in trouble these days are taking note.

Important 11th Circuit ruling on Booker harmless error

While the plain error circuit split remains unresolved, a new Booker pipeline circuit split has now emerged in the application of harmless error as a result of the Eleventh Circuit's decision today in US v. Glover, No. 04-16745 (11th Cir. Nov. 29, 2005) (available here).  In Glover, a "statutory Booker error" was preserved and the government argued that the error was harmless because the sentencing judge (post-Blakely, but pre-Booker) imposed a sentence in the middle of the applicable guideline range.  Here's the Glover court's response:

Although we recognize that two of our sister circuits have ruled that a midrange sentence alone establishes that a statutory error was harmless, see United States v. Perez-Ramirez, 415 F.3d 876, 878 (8th Cir. 2005); United States v. Paxton, 422 F.3d 1203, 1207-08 (10th Cir. 2005), we disagree.... The government must do more than rely upon a mid-range sentence to satisfy its burden under the harmless error standard.

Glover is also interesting because of a special concurrence from Judge Tjoflat in which he emphasizes "the extent to which the pre-Booker sentencing model (under which Glover was sentenced) differs from the post-Booker model."

Seventh Circuit enforces mandatory life sentence in drug case

With so many interesting capital sentencing developments of late, my blogging has fallen prey recently to the "culture of death."  But a decision today from the Seventh Circuit in US v. Cannon, No. 05-1841 (7th Cir. Nov. 29, 2005) (accessible here) provides a sad and sobering reminder that injustices in the application of severe mandatory sentencing terms should have a much larger place in our national conversation about crime and punishment.

Based on the limited facts recounted in the Seventh Circuit's opinion, the defendant in Cannon seems to be a small-time, unextraordinary drug user.  Roughly a decade ago, he was twice arrested and twice pled guilty in state court to possession of a small quantity of cocaine.  Because of that past, he then faced a mandatory life sentence(!) under federal law when he was more recently arrested with 60 grams of crack. 

After his conviction at trial, the district court sought to impose a sentence of "only" 20 years because the judge believed his criminal history was not so serious as to justify life imprisonment.  But, on the government's appeal, the Seventh Circuit explained that neither the terms of the federal drug statutes nor the ruling in Booker provided authority for avoiding the strict application of a life term.  Here is Judge Easterbrook's closing paragraph for the Cannon court:

Whether this recidivist provision is wise, and whether life imprisonment is the best way to deal with repeat offenders who peddle retail rather than wholesale quantities, is open to doubt, but Booker does not permit courts to make independent decisions about the wisdom of legislation. Mandatory recidivist enhancements are compatible with the eighth amendment.  See Lockyer v. Andrade, 538 U.S. 63 (2003).  Accordingly, although the conviction is affirmed, Cannon's sentence is vacated, and the case is remanded with instructions to impose a sentence of life imprisonment.

If time permits, I hope to do a follow-up post on Cannon and some lessons that might be drawn from it.

998, 999, ...

Last night, as detailed in this AP report, Arkansas executed Eric Nance; this morning, as detailed in this AP report, Ohio executed John Hicks.  These executions mark the 998th and 999th executions in the modern death penalty era.  This AP story and this Reuters story in turn highlight that all eyes now turn to Virginia, where Governor Mark Warner is still considering whether to grant clemency to Robin Lovitt, who will tomorrow become the 1000th person executed if Gov. Warner does not step in.

Related posts:

• Marking a "grand" capital punishment milestone
• Latest BJS death penalty stats as we approach 1000th execution

Problems with the SCOTUS docket

Inspired by this post by Jason Mazzone at Concurring Opinions encouraging the Justices to take more cases, the blogosphere is buzzing about the Supreme Court's docket. Orin Kerr is skeptical about whether SCOTUS should expand its docket; Dan Markel, disappointed by the denial of cert. in the Gementera shaming case (background here and here and here), seems to support the Justices deciding more cases

Mike at Crime & Federalism has the best insights on this topic with respect to the High Court's criminal docket: "the problem isn't with the number of cases; it's with case selection. The Court is obsessed with the minutiae of capital cases while ignoring other major sentencing issues (say Booker retroactivity, which affects tens of thousands of people). And the Court is obsessed with crim pro cases in general."  As detailed in posts below, I have been singing this tune for quite some time:

• Roberts, the cert pool, and sentencing jurisprudence
• More on Alito and the criminal docket
• A capital waste of time?
• A capital term for SCOTUS
• Shackled to a jurisprudence
• More death and habeas from SCOTUS
• The waiting is the hardest part...

More thoughtful commentary on clemency and the Williams case

Professor Austin Sarat, who has been doing forceful work on capital clemency lately (see here and here), today has a this FindLaw column on the Tookie Williams case.   Entitled "How Governor Schwarzenegger, and Those Who Seek Clemency for Stanley 'Tookie' Williams Both Get Our Legal and Constitutional Tradition Wrong," the piece emphasizes that clemency "is an exercise of mercy and grace."  Here's a selection from the piece's conclusion:

In sum, Governor Schwarzenegger's idea of the clemency standard — as meant only to correct miscarriages of justice — is simply wrong; it profoundly misunderstands our legal and constitutional traditions.  Schwarzenegger should not — and cannot — hide behind this mischaracterization of his clemency power.  The decision in the Williams case really is a test of the man, and what kind of governor he wishes to be.

It is about whether he will focus on charity or compassion, or worry about paying the steep political price — at a time when his own popularity is at a new low — that granting clemency to Stanley Williams will necessarily entail. The courageous decision is to spare Williams, not condemn him to death.  The question is whether Schwarzenegger has that courage — not whether Williams has "earned" or "deserved" clemency.

Related posts:

• Talking Tookie
• Talking more Tookie
• Still more buzz about executing Tookie
• Timely article about executive clemency

Argument in NJ over application of Atkins

As noted in this Newsday article, the New Jersey Supreme Court is scheduled on Tuesday to hear arguments in NJ v. Jimenez concerning the procedures for adjudicating mental retardation claims by capital defendants in the wake of Atkins v. Virginia.  As detailed in this post and this follow-up, the lower court in Jimenez held, based in part on Apprendi and Blakely, that prosecutors seeking the death penalty must prove a defendant is not mentally retarded beyond a reasonable doubt.  The arguments can be viewed starting at 10am at this link.

UPDATE: I caught a part of the Jimenez oral argument, which should eventually be archived here, and found it very engaging and thought-provoking.  And yet, given the fact that, over the past 23 years, New Jersey has spent more than a quarter of a billion dollars on its capital punishment system without executing anyone, the actual outcome in Jimenez may not significantly impact the death penalty in the Garden State.

Timely article about executive clemency

Today I received a reprint of a new article on executive clemency that seems especially timely as the debate continues over whether the scheduled execution of California death row inmate Stanley "Tookie" Williams and his case for clemency.  (On the Williams front, in addition to my recent Tookie coverage here and here and here, consider this interesting article from today's Christian Science Monitor and this interesting post from David Kopel at The Volokh Conspiracies.)

This new article, which is by Samuel T. Morison and appears as The Politics of Grace: On the Moral Justification of Executive Clemency, 9 Buff. Crim. L. Rev 1 (2005), is focused principally on federal clemency theory and practices, although its main points have broad application for all clemency debates.  Folks into criminal justice philosophy and theoretical debates over the clemency power are likely to most enjoy the full article, although I suspect many readers might like these quotes from the introduction:

[I]f a president refuses to exercise the clemency power at all, perhaps to insulate himself from potential political criticism for being "soft on crime," he would be properly subject to moral condemnation for being merciless....

[T]he reluctance of recent presidents to exercise the clemency power more generously perhaps can be criticized for displaying a certain lack of moral imagination and political courage, particularly given the advent in the last twenty years of strict mandatory minimum statutes and rigid sentencing guidelines, together with a burgeoning federal prison population.

Adding to the intrigue of this article is the fact that its author, Sam Morison, currently serves as an Attorney-Advisor in the Office of the Pardon Attorney in the US Department of Justice.

Initial reflections on Richey reversal

The Supreme Court's per curiam summary disposition in Richey today (discussed here) is likely not a big surprise for legal beagles following the case closely.  I believe the case had been relisted a number of times, and the Court's main ruling merely reversed a Sixth Circuit interpretation of Ohio law that seemed suspect.  (I was surprised, however, to see that Part II of the Richey opinion has a noticeable typo (in the initial cite of Holland v. Jackson), and that this part of the opinion is not written very clearly as it kicks the case back to the Sixth Circuit for a further round of litigation.)

But the Richey disposition is still big news because Ohio's efforts to execute Ken Richey has garnered significant national and international attention because of Richey's claims of innocence and also his Scottish roots and his status as a British citizen.  This AP story and this BBC story about the Richey ruling provide some background on why the case has previously garnered so much attention, and pro-Richey websites like this one and this one highlight why we are likely to continue to hear about this case as it is further litigated in the Sixth Circuit.

Eighth Circuit discusses reasonableness of crack/powder differential

The Eighth Circuit today at the end of a long opinion in US v. Cawthorn, No. 05-1982 (8th Cir. Nov. 28, 2005) (available here) rejected a defendant's claim that "it was error for the court not to sentence outside the Guidelines range because it is always unreasonable to treat crack cocaine 100 times worse than powder cocaine."  Here is the heart of the Eighth Circuit's analysis:

The Seventh Circuit noted, in an unpublished opinion, "[defendant] has cited no case after Booker in which an appellate court has held that it is unreasonable not to give a defendant convicted of an offense involving crack a lower sentence than the one recommended by the guidelines."  United States v. Herron, 2005 WL 1691370, at *2 (7th Cir. July 20, 2005).  While we have not yet addressed the issue, the Seventh Circuit further reasoned "[g]iven the fact that this court has routinely upheld the differential against constitutional attack . . . , and, under the pre-Booker guideline system, rejected wholesale downward departures from the guideline on this basis . . . , it would be inconsistent to require the district court to give a non-guideline sentence based on the differential." Id.  We adopt this reasoning and hold sentencing within the Guidelines based on the crack-powder disparity is not inherently unreasonable.

Beyond the substantive importance of this (published) ruling, I am intrigued by the Eighth Circuit's express adoption of the reasoning of an unpublished decision from a sister circuit given the endless debate over reliance on, and citation to, unpublished opinions.  This is intriguing in part because, as detailed in this post, the Seventh Circuit put its crack-powder reasoning into a published disposition back in September.

For sentencing fans from SCOTUS today

The Supreme Court is back from a two-week break with a new order list and a per curiam summary reversal that will interest sentencing fans.  Lyle Denniston at SCOTUSblog details here not only that cert. was granted in three civil cases, but why he views today's order list as sending "a strong signal that [The Supreme Court] is not ready to confront the question of retroactive application of its decision early this year in Booker v. U.S."  Lyle explains:

The Court denied review in 11 cases on the issue, including a case, Clark v. U.S. (04-5491), in which it had sought the Solicitor General's views.  As usual, there was no explanation for any of the denials.  The Solicitor General had argued that Booker should not be applied retroactively, because it failed the "new rule" test of the 1989 decision in Teague v. Lane.

Also, of related note, the order list does not have any Booker GVRs.  These developments lead me to various speculations about the state of the Booker pipeline and the High Court's interest in "looking back" on Blakely and Booker issues.

Meanwhile, from the capital desk, the summary reversal today is in a death penalty case from the Sixth Circuit, Bradshaw v. Richey, No. 05-101 (S. Ct. Nov. 29, 2005) (available here).  Here is Lyle's account of that decision (which I may discuss more in a later post):

In a summary decision, without dissent, the Court ruled that the Sixth Circuit had erred in deciding an issue of state law in direct contradiction of an interpretation given that law by the Ohio Supreme Court in the same case.  The issue arose in a murder case in which Kenneth T. Richey was convicted of killing a two-year-old girl by starting a fire that was intended to kill the girl's mother -- Richey's ex-girlfriend -- and her new boyfriend. Richey was convicted on a theory of transferred intent for the death of the child. Her mother and the boyfriend escaped unharmed.

The inevitability of Booker disparity anecdotes

This article in Monday's Newark Star-Ledger, which is entitled "Disparities are emerging in criminal sentencings," reveals yet again how easy it is to spotlight a few federal cases in order to suggest that sentencing disparities are "emerging" in the wake of Booker.  The article, in addition to providing background on the impact of Booker, details seemingly disparate sentencing outcomes in seemingly similar child pornography cases from New Jersey.

The Star-Ledger article is interesting and generally well done, although it fails to note that in roughly 2/3 of all cases in which judges impose sentences below the guidelines, these sentence reductions are at the behest of prosecutors.  That failure in turn highlights broader concerns I have about these sorts of post-Booker news stories: these articles generally fail to explore how prosecutors can be the source of sentencing disparities and how factors like divergent fast-track programs or cooperation policies (or even the basic crack-powder cocaine differential) might have produced pre-Booker disparities that were even more disconcerting than any post-Booker disparities resulting from divergent judicial decisions.

I fear it is inevitable that the post-Booker world will be flyspecked and that selected anecdotes will be the basis for (overly broad) claims that greater sentencing discretion is leading to greater disparity after Booker.  (Recall, of course, that this is exactly what AG Alberto Gonzales did when calling for a legislative "Booker fix" in his speech this past summer (basics here, commentary here and here and here).) 

Ultimately, the real story of Booker's impact on sentencing disparities is a lot more nuanced than the Star-Ledger article suggests.  And I hope to explore these realities in much greater depth in forthcoming posts in my "Dead Booker walking?" series.

Terrific blogosphere follow-up

I see that some terrific blogs have terrific follow-up on some sentencing stories I have covered recently:

• Over at the White Collar Crime Prof Blog, Ellen Podgor has this extensive post thoughtfully discussing recent trends in white-collar crime sentencing.  Her post follows up recent posts here noting a Chicago Tribune article on the topic and this post asking whether white-collar offender are getting the most post-Booker breaks.

• Over at Crime & Federalism, Mike has this thoughtful post commenting on the scheduled execution of California death row inmate Stanley "Tookie" Williams and his case for clemency.  His post follows up my recent Tookie coverage here and here and here.

Critical commentary on Alito's death penalty work

Berkeley law prof Goodwin Liu today has this commentary in the Los Angeles Times, which is highly critical of the work of Judge Sam Alito in capital cases during his tenure as a Third Circuit judge.  Here are the opening and closing paragraphs:

Although abortion rights have dominated the debate over the nomination of Judge Samuel A. Alito Jr. to the Supreme Court, there is another issue implicating the "culture of life" that has garnered fewer headlines: capital punishment.  The impending executions of three men in California, including the lethal injection of reformed ex-gang leader Stanley Tookie Williams scheduled for Dec. 13, are a sober reminder of the irrevocable stakes in this area of law.

Capital cases make up a substantial portion of the Supreme Court's docket each year.  From 2000 to 2005, the court decided only three cases involving abortion but more than three dozen cases involving the death penalty.  In this area, the Supreme Court often serves not only in its typical role of deciding unsettled questions of broadly applicable law but also as a court of last resort to correct errors and prevent injustice in individual cases....

Although O'Connor's approach to capital punishment has been solidly conservative, she has at times supplied a crucial vote in contentious cases in favor of greater care and fairness in the application of the death penalty.  Yet it is precisely in the most contentious cases that Alito has shown an unbroken pattern of excusing errors in capital proceedings and eroding norms of basic fairness.

At a time when America's commitment to due process of law is being closely scrutinized at home and abroad, Alito's record on capital punishment raises serious concerns.  It deserves careful attention from the Senate and the American people as a measure of his capacity to interpret the law in pursuit of impartial, humane and equal justice.

Along with extensive coverage of the death penalty at this archive, below are linked prior posts exploring Alito and the death penalty:

• Alito and the death penalty
• Alito and Feingold discuss the death penalty
• More on Alito the prosecutor and Alito on the death penalty
• Still more on Alito and the death penalty