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March 5, 2005

Latest compilation of post-Booker decisions

Frances H. Pratt, Research and Writing Attorney in the Office of the Federal Public Defender in Alexandria, Virginia, has updated her extended outline of post-Booker decisions all the way through this amazing sentencing week

The updated outline now runs 37 pages (having grown 5 pages just this week) and can be downloaded below.  By early next week, this latest version (and thereafter any subsequent versions) of the outline should be accessible at this link.

Download postbooker_decision_outline_030505.pdf

March 5, 2005 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

The costs of capital (punishment)

A few months ago I noted here a new attentiveness to the extraordinary economic costs of administering a system of capital punishment.  Thanks to How Appealing, I see that the Los Angeles Times, in this fascinating article in Sunday's paper, has calculated that

the California death penalty system costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for life and not counting the millions more in court costs needed to prosecute capital cases and hold post-conviction hearings in state and federal courts.

The article then calculates that, with "11 executions spread over 27 years, on a per-execution basis, California and federal taxpayers have paid more than a quarter of a billion dollars for each life taken at state hands."

The LA Times article includes a lot of other interesting California capital sentencing information, including the notable decline in the number of death sentences imposed: "In 1999, [California] juries imposed 42 death sentences.  In 2004, the number dropped to nine."  This datum provides yet more evidence, as detailed previously here and here and here, that the death penalty is in decline.

March 5, 2005 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

Weekend reading

If you have somehow caught up on all the sentencing reading recently provided for us by the courts (just some of which is linked here), there is no shortage of additional reading being provided by academics.  Below I have listed and linked just a few of the articles I recently noticed on SSRN that are sentencing related:

March 5, 2005 | Permalink | Comments (2) | TrackBack

Roper's impact on the next chief?

Commentary on the Roper decision continues to appear in the papers and the blogsphere, and SCOTUSblog here and How Appealing everywhere are the places to go for links to much of it.  But this morning I was especially intrigued by this piece from Tony Mauro suggesting Justice Kennedy's work in Roper could hurt his chances to be the next Chief Justice.  (Recall my long-ago speculations here than Booker might impact the Chief sweepstakes.  That's pretty unlikely now that Justices Stevens and Breyer were the opinions' authors.)

Even before Roper, I saw Justice Kennedy as fourth in line among current Justices for the top spot on the Court (behind Justices Scalia, Thomas and O'Connor).  Moreover, because of the predicted battle royale over coming SCOTUS nominations, the White House may well opt to nominate an outsider directly to the position of Chief rather than have to battle twice over an internal elevation and an outside nomination.

March 5, 2005 in Who Sentences | Permalink | Comments (0) | TrackBack

March 4, 2005

What a sentencing week!

I predicted March Madness in the world of sentencing, but this week alone has brought more sentencing news of note than I ever could imagine.  In addition to all the news I've post here, How Appealing and the SCOTUSblog have had lots of Roper items of late, and this afternoon I see How Appealing also provides links here to an important Ninth Circuit three strikes decision and here to an important Eleventh Circuit prisoner rights decision.  (Readers can guess the outcomes based on the circuits.)

Simply in order to help me organize this amazing start to March, below I continue my tradition (as established here and here and here and here and here) of linking some recent posts.  (I hope regular readers might report in the comments if you find this tradition more annoying than valuable).





March 4, 2005 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Intra-circuit split in the First Circuit

While the Fifth Circuit today in Mares (basics here) made deeper the three-way circuit split on how to handle Booker plain-error claims, two judges today in the First Circuit issued a lengthy concurrence in US v. Serrano-Beauvaix, No. 02-2286 (1st Cir. Mar. 4, 2005) (available here) to explain why they are unhappy with where the First Circuit is located in the plain-error universe.

Judge Lynch writes for the court in Serrano-Beauvaix, and along the way she reiterates the circuit's position, established last week in Antonakopoulos (basics here), that "the defendant must persuade us that there is a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime."  The defendant in Serrano-Beauvaix did not meet this standard.

But, to add to our Booker fun, Judge Lipez, joined by Judge Torruella, adds a 12-page concurrence in which he urges the circuit to follow the Sixth Circuit's plain error lead:

I agree with the result of the application of Antonakopoulos to this case. I write separately, however, to explain why, if I were free to do so, I would take a different approach to reviewing unpreserved claims of Booker error....

I do not believe that we should require defendants invoking unpreserved Booker error to make a specific showing of prejudice (the reasonable probability of a different outcome) to satisfy the third step of plain-error review.  Rather, such error should entitle the defendant to a presumption of prejudice, which the government can then try to rebut.  This approach, adopted by a panel of the Sixth Circuit in United States v. Barnett, No. 04- 5252, 2005 WL 357015 (6th Cir. Feb. 16, 2005), is well grounded in Supreme Court precedent and has been applied by our sister circuits in other contexts "where the inherent nature of the error made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court proceeding would have been different had the error not occurred."

March 4, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

The price of justice (aka the costs of Booker)

The ever speedy How Appealing (which looks extra pretty with its move to Movable Type) earlier today had posted here today's interesting news release from the Administrative Office of the U.S. Courts, which declares "Courts Gird for Likely Impact of Sentencing Appeals, Class Action Lawsuits" and details that President Bush has now forwarded to Congress the judiciary's Booker-inspired request for $91.3 million in supplemental funding for the current fiscal year.  As further detailed in this letter from Leonidas Ralph Mecham, director of the Administrative Office of the US Courts, to President Bush, the Judicial Conference asked for a total emergency supplemental appropriations of $101.8 million, with the additional $10.5 million sought to cover the impact of the recent federal class action legislation.

Though the news release and letter are interesting, even more fascinating (and worthy of future posts this weekend) is this memo providing the Judicial Conference's detailed description of the cost impact of Booker.  The memo allocates the $91.3 million in requested additional funding by earmarking $30 million for district and circuit courts, $60 million for defender services, and a (measly?) $1.4 million for the Federal Judicial Center and the US Sentencing Commission.

Though the memo reviewing cost estimates is quite thoughtful and thorough, I think it may under-estimate the judiciary's post-Booker needs in various ways.  Moreover, this request for funds does not address the added costs being borne by the Justice Department in the wake of Booker, nor the additional costs that would surely flow if (when?) Congress potentially muddies up the federal sentencing waters further through some form of Booker "fix."

March 4, 2005 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

The 5th Circuit is silent no more!

Howard Bashman had the news (and my preferred title) first here at How Appealing: the Fifth Circuit has broken its surprisingly long Booker silence today (background here and here) with US v. Mares, No. 03-21035 (5th Cir. Mar. 4, 2005) (available here).  Here are the summary highlights:

Mares raised this [Booker] issue for the first time in his brief filed with us on direct appeal.  We agree with the Eleventh Circuit that our review is for plain error. United States v. Rodriguez, 2005 U.S. App. LEXIS 1832, 16-17 (11th Cir. 2005). Because the defendant did not carry his burden of establishing that the error affected the outcome of the proceeding, we find no plain error and affirm the sentence.

UPDATE: Mares proves to be another case in which the court employed a quasi en banc process, as the court explains:

After circulating this opinion to all members of the court this panel has benefitted from and incorporated into the opinion many of their comments.

In addition, the Court in Mares goes out of its way to speak broadly to a range of post-Booker sentencing issues, noting that "we think it appropriate for us to explain at the outset how we understand the Supreme Court expects sentencing will proceed under its decision in Booker/Fanfan."  In Mares this means, inter alia, the most direct state by a Circuit court that post-Booker judicial fact-finding is to look just like pre-Booker judicial fact-finding:

The Guideline range should be determined in the same manner as before Booker/Fanfan. Relatedly, Booker contemplates that, with the mandatory use of the Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts relevant to sentencing.  125 S.Ct. at 750, 764.  The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence.

The Fifth Circuit in Mares also comes closest to suggesting that a sentence within the applicable guidelines will be per se reasonable:

If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines. Given the deference due the sentencing judge’s discretion under the Booker/Fanfan regime, it will be rare for a reviewing court to say such a sentence is "unreasonable."

March 4, 2005 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

Alaska's Blakely fix

Yesterday I reported here on Tennesse's developing Blakely fix, which adopts an "advisory guideline" approach in the wake of Booker.  Providing an interesting contrast, today I received news about Alaska's developing and distinct Blakely fix, which is now in the form of this bill that has already been passed by the Alaska legislature and is awaiting transmittal to Alaska's governor for signature. 

As detailed in the bill, the Alaska legislature is mostly opting to Blakely-ize its sentencing scheme.  Here's how the bill was described in an e-mail to me:

The provisions in the bill that directly address Blakely are contained in sections 1 (legislative intent) and 21 of the bill, which sets forth how a defendant receives notice of proposed aggravating factors and requires that they be proved to a jury beyond a reasonable doubt.  In addition, section 2 provides that aggravating factors need not be specificied in an indictment.  The bill also changes from a system of specific presumptive terms to presumptive ranges.
A bit more background on this work by the Alaska legislature can be found in the middle of this this recent AP article.

March 4, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

The fate and future of appeal waivers?

A remarkably important and remarkably under-examined feature of the pre-Blakely/Booker world of federal sentencing involved the widespread use of appeal waivers in plea agreements.  As suggested here, we are already seeing some varied circuit approaches to addressing the fate of pre-Blakely/Booker appeal waivers, and of late I have been pondering the law, policy and practice of post-Booker appeal waivers.

Appeal waivers — which can be very broad or quite narrow — have long been controversial in the federal system, and different US Attorney Offices and different district judges have had different policies and approaches to such waivers.  See generally Windows into Sentencing Policy and Practice: the Crack/Cocaine Ratio and Appeal Waivers, 10 Fed. Sentencing Rep. 179 (1998).  Every federal circuit has upheld the generally validity of such waivers of appeal, although a number of judges have expressed concern that such waivers are "inherently uninformed and unintelligent" and that broad appeal waivers frustrate Congress's policy decision in the Sentencing Reform Act to utilize appellate review to help eliminate unwarranted sentencing disparity.  See id. at 181-82.

As detailed in a Second Circuit brief available for download below, the government seems inclined to try to continue to enforce, though motions to dismiss a Booker appeals, ple-Blakely appeal waivers.  But the "old" arguments against enforcing appeal waivers seem especially potent now: (1) from a defendant's perspective, appeal waivers entered pre-Blakely were obviously uniformed and unintelligent concerning the realities of a post-Booker world, and (2) from a system-wide perspective, Justice Breyer's remedial work in Booker asserts that Congress would strongly favor the "retention of sentencing appeals ... to iron out sentencing difference."  Booker, slip op. at 21. 

For these reasons, I think a strong argument can be made that pre-Blakely appeal waivers should now be unenforceable or that circuit courts should now at least review all appealed sentences for reasonableness, as the Eighth Circuit did in Killgo (details here).  And, again because of Justice Breyer's strong advocacy of Congressional interest in appellate review, perhaps district courts post-Booker ought to have renewed concerns about accepting pleas with appeal waivers.

Download government_appeal_waiver_motion_to_dismiss.pdf

March 4, 2005 in Booker and Fanfan Commentary | Permalink | Comments (8) | TrackBack

More interesting Booker remands from the Sixth Circuit

The Sixth Circuit continues to be the busiest court in the Booker business as today it has two more (unpublished) Booker opinions remanding cases to the district court.  In addition, as detailed by Appellate Law & Practice here, the Sixth Circuit also seems to be almost automatically remanding cases that were GVRed back to the Circuit from the Supreme Court.  (A previous discussion of circuit contrasts with the GVR cases is here, and Appellate Law & Practice here assails the Eleventh Circuit's approach to GVRs in Dockery.)

The notable opinions on-line today (though dated yesterday) are US v. Williams, No. 03-6493 (6th Cir. Mar. 3, 2005) (available here) and US v. Tate, No. 02-4382 (6th Cir. Mar. 3, 2005) (available here).  The Tate case involved a preserved objection to drug quantity findings by the sentencing judge that enhanced the applicable guideline range, and the Sixth Circuit ordered a remand by simply stating: "Unless the Sixth Amendment error is shown to be harmless, reversal is appropriate.  Because there has been no showing that the error was harmless, Tate is entitled to re-sentencing."

The Williams case involved an unpreserved Booker claim (and also did not involve any judicial fact-finding). Drawing heavily from the Sixth Circuit's ruling in Barnett (discussed here), here's how the Williams Court explains its plain error approach:

This court in United States v. Barnett recently held, under circumstances materially indistinguishable from those here (including plain-error review), that a defendant meets the first, second, and fourth prongs of the plain-error test when sentenced under mandatory Guidelines. See United States v. Barnett, 2005 WL 357015, at *8, 12 (6th Cir. 2005).  As regards the third prong, Barnett requires panels of this circuit to presume prejudice unless record evidence exists to rebut the presumption.  Barnett, 2005 WL 357015, at *12. 

A review of the sentencing-hearing transcript shows the district court here struggled with the decision to commit Williams to a prison setting instead of home confinement.  The court called this a "fairly close case" and recognized that Williams suffers from "a very significant physical impairment." The court, however, concluded that the Guidelines contemplated "something more" for § 5H1.4 relief and thus denied the departure. The record lacks "clear and specific evidence" demonstrating that the district court would not have granted the departure under advisory Guidelines.

Williams's case meets the Barnett standard for exercising our discretion to notice the error.  We vacate his sentence and remand to the district court for resentencing under the new rubric established by Booker.

March 4, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

March 3, 2005

Judge Gertner speaks on Booker!

This morning I noted here that there had been surprisingly few major district court Booker rulings of late.  Thus, it is perhaps fitting that today, in addition to the potent work of Judge Adelman in Smith on on crack/powder issues (basics here), we now get Massachusetts US District Judge Nancy Gertner's insights on the post-Booker sentencing world.  In US v. Jaber, No. 02-CR-10201-NG (D. Mass. Mar. 3, 2005), which can be downloaded below, Judge Gertner details at length — 39 pages, in fact — her view of "the applicable legal framework [for sentencing] in light of United States v. Booker."

Based on a very quick overview, Jaber appears to be another tour-de-force from a judge who has already earned her place in my Hall of Fame.  Here are a few introductory highlights from today's second must-read district court opinion:

[A]n "advisory" regime makes it all the more important that I adhere to my practice of writing opinions, outlining the reasons for the sentences I have imposed.  As I describe in greater detail below, "advisory" does not mean a regime without rules, or a return to the standardless sentencing which preceded the SRA.  Nor does it mean slavish application of the Guidelines under the guise of fair "consideration," an approach which is now unconstitutional.  "Advisory" means something in-between.

Download gertner_jabarmomohsentenmemo.pdf

March 3, 2005 in Booker in district courts | Permalink | Comments (2) | TrackBack

Contrasting circuit approaches to GVRs

As detailed here and here and here, there have been more than 500 Booker-inspired GVRs in which the Supreme Court sent sentencing appeals back to the circuit courts.  Today, in brief decisions from the Sixth and Eleventh Circuits, we see another example of contrasting circuit justice in the handling of these GVRed cases. 

The Sixth Circuit in US v. Loverson, No. 03-6120 (6th Cir. Mar. 3, 2005) (available here), simply explains, "[u]pon reconsideration, we conclude that the district court's sentencing order must be vacated and the case remanded for re-sentencing."  In contrast, in US v. Dockery, No. 03-1638 (11th Cir. Mar. 3, 2005) (available here), the Eleventh Circuit relies on post-Apprendi circuit precedent and the fact that, in his initial brief, "Appelllant asserted no such Apprendi (or its progeny) challenge to his sentence" in order to "reinstate our previous opinion in this case and affirm, once again, Appellant's sentence after our reconsideration in light of Booker, pursuant to the Supreme Court’s mandate."

March 3, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Tennessee's "official" Blakely fix

Last month I reported here and here on work being done by Tennessee's Blakely task force.  Today, David Raybin, who has been integrally involved in the task force's work, sent me two documents reflecting the task force's official product.  It is fascinating stuff and highlights one of the many ways that Booker has shifted debate in the states over Blakely.

The first document, available for downloading below, is the task force's Final Report.  This document explains that the Task Force considered but rejected a bifurcated jury approach, as well as a wide-open discretionary judge-sentencing system, and instead adopted an "advisory guideline" approach.  The second document, also available for below, is the task force's proposed legislation itself.   As David Rabyin explained in his e-mail:

Our proposal removes presumptive sentencing from Tennessee law so as to comply with the United States Supreme Court decisions. The former presumptive sentence provisions are replaced with a series of guidelines that include enhancement and mitigating factors and a statement of principles and sentencing considerations. The proposed Act requires the judge consider, but not be bound by, these advisory guidelines to arrive at an appropriate sentence which is subject to appellate review.

David also explained in his e-mail that:

There was significant debate over [our] proposal which seemingly violates Blakley.  However, once we concluded that Booker trumps Blakely, we were satisfied that this was a sound alternative. The new law will be prospective given ex post facto considerations but a defendant may opt in by executing a waiver. There are a few new benefits under the law such as increased probation eligibility.

Download tennessee_task_force_report.pdf

Download tennessee_blakely_legislative_proposal.pdf

March 3, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

Judge Adelman strikes again

Wisconsin US District Judge Lynn Adelman — who helped define the post-Booker debate with his Ranum opinion (basics here, commentary here and here), and added great insight with his subsequent Galvez-Barrios opinion (basics here, commentary here) — has added another impressive effort with US v. Smith, No. 02-CR-163 (E.D. Wisc. Mar. 3, 2005). 

Smith — which can be downloaded below and merits a close read for all its insights — deals with post-Booker judicial fact-finding, departures based on substantial assistance and other important issues.  But the fireworks come in Smith's discussion the disparity between crack and powder cocaine.  Here are just some of the some highlights:

As is now notorious, the guidelines create a 100 to 1 ratio between crack and powder cocaine.  In other words, the guidelines treat possession of 50 grams of crack cocaine the same as they treat possession of 5000 grams (5 kilograms) of powder cocaine.... Courts, commentators and the Sentencing Commission have long criticized this disparity, which lacks persuasive penological or scientific justification, and creates a racially disparate impact in federal sentencing....

The Commission has studied the issue in depth and concluded that the assumptions underlying the disparity between crack and powder are unsupported by data.... [N]one of the previously offered reasons for the 100:1 ratio withstand scrutiny.  Perhaps most troubling, however, is that the unjustifiably harsh crack penalties disproportionately impact on black defendants....

Primarily as the result of the different penalties for crack and powder cocaine, and contrary to one of the Sentencing Reform Act's primary goals, the sentencing guidelines have led to increased disparity between the sentences of blacks and whites.... [T]he disparity in sentences involving crack and powder brings irrationality and possibly harmful mischief into the criminal justice system.

To its great credit, the Commission has repeatedly sought to reduce the disparity....  Only Congress can correct the statutory problem, but after Booker district courts need no longer blindly adhere to the 100:1 guideline ratio.

In the present case, I concluded that adherence to the guidelines would result in a sentence greater than necessary and would also create unwarranted disparity between defendants convicted of possessing powder cocaine and defendants convicted of possessing crack cocaine.  The question then became what ratio to apply. Everyone seems to agree that 100:1 is too high.... The Commission has studied this issue and acquired expertise [and proposed a 20:1 ratio], [and thus] I gave its recent recommendation heavy weight.

Download adelman_smith_crack_opinion.rtf

March 3, 2005 in Booker in district courts | Permalink | Comments (2) | TrackBack

Interesting NASC newsletter

I noted here last night that the state Blakely story keeps humming along, and more proof today comes from this newsletter of the National Association of Sentencing Commissions.  The NASC newsletter, which includes sentencing updates from more than a dozen states, shows not only how much state Blakely activity is on-going, but also how many other important sentencing issues are being worked through at the state level in a number of jurisdictions.

March 3, 2005 in Blakely in the States | Permalink | Comments (1) | TrackBack

Interesting 6th Circuit Booker dicta

The Sixth Circuit, which now has issued 20 opinions addressing Booker, today has a Booker remand which includes some interesting dicta encouraging district courts to explain its post-Booker sentencing decisions.  In US v. Jones, No. 03-6016 (6th Cir. Mar. 3, 2005) (available here), the court says:

The district court's sentence, and its exercise of discretion (if any), must be reviewed by an appellate court for "reasonableness."  Accordingly, on remand, we encourage the sentencing judge to explicitly state his reasons for applying particular Guidelines, and sentencing within the recommended Guidelines range, or in the alternative, for choosing to sentence outside that range.  Such a statement will facilitate appellate review as to whether the sentence was "reasonable."  However, we take no position as to the content or extent of such a statement.

UPDATE:  Appellate Law & Practice has more on Jones here.

March 3, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Martha reportedly says: "I just hate these sentencing guidelines."

Laurie Cohen has this front-page story (subscription required) on Martha Stewart's prison experiences.  The long piece includes a lot of interesting sentencing items and some Booker discussion.  Here are a few highlights:

On a recent morning in a dining room at the federal prison camp here, Martha Stewart listened, banana in hand, as two inmates told her of the assets they had to forfeit before serving lengthy sentences. A frustrated Ms. Stewart pounded her banana on the table, an inmate recalls.  Susan C. Spry, serving a 12-year, seven-month sentence for possession of methamphetamine, says she blurted: "Martha, you're bruising your banana!" She says Ms. Stewart responded: "I just hate these sentencing guidelines." ...

During her stay, Ms. Stewart, perhaps the nation's most famous federal convict, has become interested in prison and sentencing reform.  After a landmark U.S. Supreme Court ruling in January that rendered mandatory sentencing guidelines unconstitutional, she wrote that she worried her fellow inmates would sink into a "severe depression" if courts fail to grant them shorter sentences....

In light of the Supreme Court's ruling, a number of Alderson inmates have filed petitions to get their cases reconsidered.  "People were running up and down the hall cheering" on Jan. 12, the day the Supreme Court struck down the constitutionality of mandatory sentencing guidelines, says [a fellow inmate], whose own petition has been stayed.  Ms. Stewart, she says, "has passed along whatever information she found out from her lawyers and has been galvanizing in terms of encouragement and exhortation to action."...

But as Ms. Stewart predicted, many whose spirits were raised have become depressed again as they have learned that courts are unlikely to re-open plea bargains, in which defendants are required to waive appeals.  "Most women are disappointed now," says [another inmate], who was also a lawyer, judge and prosecutor before being sent to prison.  "And most are realistic."

March 3, 2005 | Permalink | Comments (2) | TrackBack

More Booker reports from the front lines

There have been surprisingly few major district court Booker rulings of late, but newspaper stories continue to provide a window on the post-Booker sentencing world.

For example, this story from Detroit quotes from local judges and reports on a number of cases impacted by Booker; this story from Baltimore reports on fraud sentencing which apparently included a small departure though still resulted in a two-year prison term; this story from Peoria reports on a drug sentencing which apparently included a small variance though still resulted in an 11-year prison term.  (These latter two stories reinforce a point I flagged here about the challenge of accurately reporting post-Booker sentences that are still "tough" even though they involve a downward departure or variance.)

March 3, 2005 in Booker and Fanfan Commentary, Booker in district courts | Permalink | Comments (0) | TrackBack

The state Blakely beat

Though the state Blakely story continues to be eclipsed by federal sentencing developments, there is still notable news from the states on a regular basis.  Consider the following recent articles:

In addition, I am very pleased to see Michael Ausbrook from INCourts is finally back on the Blakely beat.  He has a post criticizing Booker here, praising the Oregon Supreme Court's Blakely decision in Dilts here, and assailing the "Booker back-pedaling" he has noted in California and Indiana here and here and here.

March 3, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

More rapid remands on Booker grounds

This week has not (yet) brought any major circuit rulings on Booker.  But we are continuing to see from many circuits what might be called rapid remands —  remands on Booker grounds without any significant discussion of plain error or harmless error issues. 

I see on-line tonight such rapid remands on Booker grounds already this week from the Third, Fourth, Sixth, Eighth and Ninth Circuits.  See US v. Marquez, 2005 WL 455858 (3d Cir. Feb. 28, 2005); US v. Newill, 2005 WL 468312 (4th Cir. Mar. 01, 2005); US v. Graham, No. 03-4346 (6th Cir. Mar. 1, 2005); US v. Sdoulam, 2005 WL 474337 (8th Cir. Mar. 02, 2005); US v. Morin, 2005 WL 450106 (8th Cir. Feb. 28, 2005); US v. Perez, 2005 WL 466053 (9th Cir. Mar. 01, 2005).

In addition, on Tuesday the Fourth Circuit in US v. Collins, 03-4848 (4th Cir. Mar. 2, 2005) (available here) gave Booker issues a bit fuller airing, though ultimately ordered a remand based on the court's prior work in Hughes (basics here).

The Third Circuit Blog has some interesting comments here about the remand practices of the Third Circuit, and Appellate Law & Practice here has some amusing comments about the Sixth Circuit's work in Graham.

March 3, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

March 2, 2005

Judicial perspectives on Booker

During the run up to Booker, I pondered here whether federal judges would become actively involved in the post-Booker policy debate.  Judges have, of course, weighed in through opinions in various ways, and at last month's US Sentencing Commission hearings, Judge Thomas Hogan reported in his testimony that the Judicial Conference will be consider a recommendation from its the Criminal Law Committee later this month.

In the meantime, The Constitution Project and American Constitution Society are providing another means to hear a judicial persective on the post-Booker world.  As detailed here, these groups are sponsoring next week a panel discussion on sentencing in the post-Booker world entitled "Booker: the Judges' Perspective."  The panel is to be moderated by NPR's Nina Totenberg and will include Third Circuit Judge Samuel Alito, DC District Judge Paul Friedman, and Mass. District Judge Nancy Gertner.

This terrific event is scheduled for Wednesday, March 9, 2005 in Washington, DC, and it merits a place in everyone's Booker Calender and becomes part of the on-going sentencing March Madness.

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

Using international law in a post-Booker world

The discussion of foreign laws and practices in Roper (basics here) has already become a subject of much blog-dialogue as evidenced here and here and here.  But today I received an interesting note from a self-described "retired Australian lawyer/law professor" who suggests that international law ought to be coming to bear in the post-Booker world.  Here are some choice selections from his amusing and insightful missive:

Re: Booker, Fanfan et al, I have been fascinated by the legal sophistry which permeates the U.S. sentencing system.  It is amazing that such a developed country could get itself into the mess that it has....

One issue that I have found most puzzling is the ex post facto/due process problem and, in particular, whether one result of Booker is that, for offences committed prior to 12 January 2005, a person may possibly receive a sentence which is higher than that which he/she would have received under the mandatory sentencing range on facts found by the jury or admitted by the defendant (the system which operated before 12 January 2005).

A question for you: Given that the US is a signatory to the Universal Declaration of Human Rights, why doesn't article 11(2) of the Declaration prohibit the imposition of a higher penalty?  Why don't US trial lawyers/law professors not raise this issue as a starting point? The UN Declaration of Human Rights has been referred to in well over 100 cases in U.S. courts. I have copied and bolded the relevant paragraph....

Universal Declaration of Human Rights

Article 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Consider also that the American Convention on Human Rights, signed by the US on 1 June 1977, similarly provides in Article 9: "A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed.  If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom."

I suspect that the US judicial response is that these two Declarations do not legally bind the United States Government in the sense of creating obligations enforceable in US courts, but they certainly do establish the relevant and applicable rule of international law which is part of US federal domestic law.

March 2, 2005 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

Administering Roper

When the Supreme Court declared in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibited the execution of mentally retarded offenders, the Court punted a number of tough administrative issues when it left to the states "the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."  As noted in this post about a recent California Supreme Court ruling, three years later the states are still sorting through post-Atkins administrative issues.

Because chronological age is much easier to determine than mental retardation, the states should have a much easier time administering Roper.  Nevertheless, there are still, I believe, some short-term administrative challenges for states that have been applying capital sentencing systems to juvenile offenders.  For instance, I had no ready response when a colleague today asked: "Do the cases go back to the trial judge for re-sentencing or default to life?"  This question also led me to ponder whether a juvenile offender sentenced to death at a time when a jurisdiction did not have the alternative of life without parole could now claim parole eligibility.  (I assume some of these issues have been hashed out post-Atkins or earlier, though I doubt definitively.)

[UPDATE: I see this newspaper article from Florida suggesting that two of the three offenders on Florida's death row for killings committed when they were juveniles may become eligible for parole because their crimes were committed before Florida had life without parole as a sentence option.]

Moreover, I suspect there are more than a few on-going capital proceedings involving juvenile offenders that might need to be significantly adjusted.  For example, as this article details, there is a high-profile murder trial involving a juvenile offender on-going in Philadelphia.  Might the defendant in this case seek a mis-trial by claiming it is now inappropriate for a death-qualified jury to determine his guilt?

March 2, 2005 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

More Roper thoughts and the development of state constitutional law

Not surprisingly, the blogsphere continues to buzz about the Supreme Court's decision in Roper yesterday (early blog buzz is linked here, my early comments are linked here).  Will Baude here at Crestcat Sententia shares some thoughts and also has links to the thoughts of many others.  I was particularly intrigued by Orin Kerr's "evolving standards of decency" analysis here and Eugene Volokh's state constitutional law insights here and here over at The Volokh Conspiracy.

I especially want to run with the state constitutional law idea because, in my view, it has been insufficiently discussed and litigated in the arena of criminal sentencing.  Interestingly, in the search and seizure context, states have often interpreted state constitutional provisions to provide broader protection to individuals than the Fourth Amendment provides, see generally Marc Miller & Ronald Wright, Criminal Procedures (2d ed 2003), sometimes because the language of the comparable state constitutional provision is broader, see generally Hawaii Const. Art. I, sec. 7 (safeguarding the right to be secure against "invasions of privacy"). 

But I have not seen too many interpretations of state constitutional provisions which provides a broader reading of, say, Eighth Amendment-type provisions as possible limits on non-capital criminal sentences.  Notably, more than a few states (including Texas) have a state constitution prohibition on "cruel OR unusual punishments" even though the federal constitution only bans "cruel AND unusual punishments."  But, unfortunately, despite severely long sentences in many states, we have not often seen state courts willing to develop a robust jurisprudence concerning the plausibly distinct protections provided by distinct state constitution prohibitions.

These issues seem especially ripe for development in the wake of Blakely and the mess the Supreme Court is making of the federal constitution's jury trial right.  Notably, some state constitutions (including Ohio's) provide that the right to trial by jury "shall be inviolate;" it strikes me that exceptions to the federal jury trial right created by Harris (for mandatory minimum judicial fact-finding) and Almendarez-Torres (for prior conviction judicial fact-finding) might be subject to challenge under such state constitutional provisions. 

I have seen brief mention of state constitutional claims in only one or two post-Blakely decisions, and I wonder if lawyers are even thinking to raise such claims on a regular basis as the Blakely fall-out gets litigated in the states.  Readers are highly encouraged to leave comments or send me e-mails with any notable past or present developments relating to sentencing and state constitutional law.

UPDATE: Ken Lammers from CrimLaw discussed state constitutional law and litigation realities here, and Jeralyn Merritt from TalkLeft was kind enough to provide this link with all the state constitutions.

March 2, 2005 in Blakely Commentary and News, Blakely in the States, Death Penalty Reforms, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Notable 5th Circuit Booker dodge and criminal history decision

A few weeks ago I noted here the surprising Booker silence from the Fifth Circuit.  Every other circuit with the exception of the DC Circuit has now addressed various Booker issues — many in grand ways; but now, a full seven weeks after Booker, we still have not gotten any Booker wisdom from a circuit that typically resolves nearly 70 sentencing appeals each month.  I cannot help but speculate that significant internal debates within the Fifth Circuit is keeping it from addressing Booker issues in the many appeals that are now stacking up.

Notably, the Fifth Circuit did resolve a sentencing appeal yesterday in US v. Montgomery, No. 03-11131 (5th Cir. Mar. 1, 2005)(available here), but did so in a way that allowed it to avoid addressing Booker issues.  The defendant in Montgomery contested a sentencing enhancement based on being classified as an armed career criminal, which in turn was based on the district court's judgment that Montgomery had three prior "violent felonies."  The Fifth Circuit remanded for resentencing by concluding that Montgomery's "prior conviction under a Texas retaliation statute does not qualify as a violent felony."  And, explained the Fifth Circuit, "[i]n light of this conclusion, we need not address the impact of the Supreme Court's recent Booker decision on Appellant's alternative argument that the sentence enhancement violated his Sixth Amendment rights."

Among the interesting aspects of this Montgomery disposition is that the Supreme Court is likely soon to decide the Shepard case, which will address in another context how to interpret and apply Armed Career Criminal Act's sentencing enhancements.  Thus, delaying a decision in Montgomery might have been justified (though not essential) in light of an expected Supreme Court decision.  The same cannot be said for delaying a decision on Booker issues.

March 2, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Suspect Seventh Circuit standards?

Bill Theis has this extended post at the Seventh Circuit Blog raising a series of thoughtful questions and concerns about the recent plain error work of the Seventh Circuit it Paladino and Lee (discussed here and here).  In addition, a few readers and the comments here have suggested that Judge Posner's statement in Paladino that a trial judge "must justify departing from the guidelines, and the justification has to be reasonable" indicates that the Circuit ascribes to Judge Cassell's view of the guidelines still having heavy weight post-Booker.

March 2, 2005 in Booker in the Circuits | Permalink | Comments (4) | TrackBack

Roper around the blogsphere

I am back home in chilly Ohio, but keeping me warm is the heated discussion of Roper all through the blogsphere.  Here a quick run-down with some links:

In addition, a number of other blogs have collected links to some of the early media coverage, including SCOTUS Blog here, Law Dork here, and How Appealing seemingly everywhere.

March 2, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

March 1, 2005

Off line while Ohio bound

I am heading to the airport for my flight back to Ohio from LA, and thus I will be off-line for a while (though I hope to catch up on all the post-game analysis of Roper late tonight).  As I did previously here and here and here and here, below I have thematically organized and linked some recent posts:




March 1, 2005 | Permalink | Comments (0) | TrackBack

More evidence of the death of death?

The Supreme Court's ruling in Roper only has a direct impact on a very small number of cases, since very few juveniles are sentenced to death even in those states which had permitted the practice.  But the ruling is of grand symbolic importance, and may provide additional evidence to support my prior speculation here that the punishment of death may itself be dying a slow death.  (Consider also that, with only five executions in the first two months of 2005, this year is on pace for the fewest executions in the United States in over a decade.)  Though I do not expect complete abolition any time soon, opponents of the death penalty are surely to be encouraged by the direction of recent capital sentencing developments.

March 1, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Using Roper's focus on age in post-Booker sentencings

The Supreme Court's ruling in Roper (basics here and here) includes much interesting discussion of the "diminished culpability of juveniles" and the "mitigating force of youth," due in part to the "immaturity" and "vulnerability" of juveniles. Though much is said in all the Roper opinions about what this should mean for purposes of the death penalty, my Booker-oriented mind has me thinking about what this should mean for non-capital sentencing.

Of course, "death is different" and rarely does capital sentencing jurisprudence impact non-capital sentencing decision-making (even though I think it should).  Nevertheless, if the Constitution now demands a categorical bar on the death penalty for crimes committed before 18 because of some offenders' "immaturity" and "vulnerability" and the general "mitigating force of youth," shouldn't these same realities and concerns come to bear in at least some non-capital sentencing cases?

The US Sentencing Guidelines have long declared age a "discouraged" sentencing factor, though post-Booker we have seen a few judges question whether that determination jibes with the commands of 3553(a).  In my view, Roper adds significant force to an argument that age must (or at least should) be a significant consideration in some non-capital sentencing decisions.

March 1, 2005 in Booker and Fanfan Commentary, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Talk of foreign practices in Roper

The Roper case was being closely watched as a litmus test for the Supreme Court's concern with foreign laws and practices, because most of the world's nations do not permit the execution of juvenile offenders. The final section of Justice Kennedy's opinion for the Roper Court includes an interesting discussion of these matters.  Here are a few excerpts:

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court.s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments."

The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.... It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

Not surprisingly, Justice Scalia is none too impressed with the work of the majority in Roper, and especially its discussion of foreign practices:

The Court thus proclaims itself sole arbiter of our Nation's moral standards — and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.  Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

March 1, 2005 in Booker and Fanfan Commentary, Who Sentences | Permalink | Comments (1) | TrackBack

SCOTUS declares unconstitutional juvenile death penalty in Roper

In a 5-4 decision authored by Justice Anthony Kennedy, the Supreme Court has held in Roper v. Simmons that the death penalty "is a disproportionate punishment for juveniles," and thus the Eighth Amendment prohibits the execution of a murderer who committed his crime before age 18.  Justice Kennedy's opinion for the Court is here, Justice Stevens' concurrence is here, Justice Scalia's dissent is here, and Justice O'Connor's dissent is here.  Another 80+ pages of SCOTUS wisdom for our reading pleasure.  SCOTUS Blog already has a brief report on the case here, and I hope to provide some additional commentary on this notable ruling soon.

UPDATE: The first part of Justice Kennedy's opinion for the Court closely tracks the Court's 2002 decision in Atkins prohibiting the execution of persons with mental retardation:

As in Atkins, the objective indicia of consensus in this case — the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice — provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as "categorically less culpable than the average criminal." 536 U. S., at 316.

And Justice Kennedy's discussion of "theory" considerations also track Atkins and concludes with this interesting explanation of the Court's reversal of Stanford and its 1989 approval (per Justice Scalia) of the juvenile death penalty:

To the extent Stanford was based on review of the objective indicia of consensus that obtained in 1989, it suffices to note that those indicia have changed.  It should be observed, furthermore, that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty; a State’s decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders, including juveniles. Last, to the extent Stanford was based on a rejection of the idea that this Court is required to bring its independent judgment to bear on the proportionality of the death penalty for a particular class of crimes or offenders, it suffices to note that this rejection was inconsistent with prior Eighth Amendment decisions.  It is also inconsistent with the premises of our recent decision in Atkins.

March 1, 2005 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Intriguing Booker-free Gonzales comments and other DOJ news

As detailed in this New York Times story and this Washington Times story, Attorney General Alberto Gonzales delivered his first major policy speech on Monday at the Hoover Institution.  The full text of the speech can be found here, and I was intrigued to discover that the speech did not mention Booker or the federal sentencing guidelines either directly or indirectly.  (Recall that, as detailed here, a month ago out-going AG John Ashcroft gave a speech at the Heritage Foundation in which he criticized the Booker ruling and said Congress, in response to Booker, "should reinstitute tough sentences and certain justice for criminals.")

Meanwhile, in other notable DOJ news spotlighted by this official press release, Assistant Attorney General Christopher Wray of the Criminal Division officially tendered his resignation on Monday.  As head of the Criminal Division, Wray was a key player in the Blakely/Booker saga, and it is hard not to speculate about the possible impact this transition could have as DOJ formulates its post-Booker plans.

It has been a poorly-kept secret that there is an internal debate within DOJ about how to respond to Booker, though the buzz of late seemed to be that we could expect something official and consequential from DOJ within a matter of weeks.  I encourage readers to use the comments to suggest whether we should now read the DOJ tea leaves differently in light of Gonzales' Booker silence and Wray's departure.

March 1, 2005 in Booker and Fanfan Commentary, Legislative Reactions to Booker and Blakely, Who Sentences | Permalink | Comments (5) | TrackBack

PAG follow-up on recent USSC hearings

I have received a copy of a letter that the Practitioners' Advisory Group sent Monday to the US Sentencing Commission, which follows up on a number of topics covered during the USSC's Booker hearings in mid February (hearing highlights and commentary are linked here).  The letter, which can be downloaded below, is captioned "Supplemental Comments About Sentencing and Reporting Procedures, Victim Participation, and Procedural Reform."   

Perhaps the letter's most noteworthy feature is its extended engagement with issues relating to victim participation in sentencing matters, an issue spotlighted by Judge Paul Cassell in his USSC testimony and in recent posts here and here.  Also interesting is the PAG letter's discussion of a post-Booker sentencing checklist distributed by Judge Weinstein to the federal defenders, judges and magistrates in the Eastern District of New York.  I also provide that checklist for downloading below.

Download pag_supp_letter_to_ussg_2.28.05.final.doc

Download weinstein_checklist_for_sentencing.pdf

March 1, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Still more Booker GVRs from SCOTUS

I was very well treated by the kind folks at Loyola Law School during my Monday faculty workshop, and election law uber-blogger Rick Hasen noted that today's SCOTUS work included more Booker-inspired GVRs (that is, cert. Granted, judgment Vacated, case Remanded in light of Booker).  Indeed, as detailed in this list of orders, today there were more than 50 Booker-inspired GVRs (to go along with the more than 30 GVRs from last week noted here).

March 1, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

The plain error patterns continue

The Booker story in the circuits is now perhaps getting a bit boring, as circuits continue on their distinctive plain error paths.  For example, the Eleventh Circuit today continued its tough plain error approach by reissuing here its opinion in US v. Curtis denying a Blakely/Booker claim.  Meanwhile, late last week, the Second and Third and Ninth Circuits remanded cases on Booker grounds in their own distinctive ways.  See US v. Daidone, 2005 WL 435409 (2d Cir. Feb. 25, 2005); US v. Moore, 2005 WL 428785 (2d Cir. Feb. 24, 2005); US v. Able, 2005 WL 428758 (3d Cir. Feb. 24, 2005); US v. Sumner, 2005 WL 428832 (9th Cir. Feb. 24, 2005).

The most interesting of the recent Booker decisions comes from the Seventh Circuit per Judge Easterbrook.  Though US v. Lee, No. 03-4239 (7th Cir. Feb. 25, 2005) (available here), essentially reiterates the court's major plain error holding in Paladino (basics here), the tone of the opinion is essential Easterbrook as the Lee court details all the settings in which Booker remand might not be necessary.

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

February 28, 2005

A final LA Booker day

While everyone back east struggles with a winter storm, I have the good fortune of one last day in sunny LA thanks to a kind invitation to do a faculty workshop from the kind folks at Loyola Law School.  I will likely be off-line the rest of the day while I talk about sentencing procedures in a post-Booker world, though I hope to be able to catch up on any Monday developments late tonight.

February 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

More insightful Booker metaphors

In this post I spotlighted some of the Booker song references I have seen, and this comment has added a Booker version of Bob Dylan's "Times They Are a-Changing."  But at the AFDA seminar I attended last week, there seemed to be a pop culture reference shift to movies and books, with The Wizard of Oz, The Perfect Storm and Alice in Wonderland all getting a Booker spin. 

Professor Margareth Etienne (along with Atlanta Federal Defender, Natasha Perdew Silas) gets credit for turning the Supreme Court's sentencing jurisprudence into a trip to Oz. And today Margareth sent me a draft of a forthcoming Booker commentary which shows she has no shortage of useful Booker metaphors.  In the piece that can be downloaded below — which is titled "Into the Briar Patch?: Power Shifts Between prosecution and Defense after United States v. Booker" and is forthcoming in the Spring 2005 issue of the Valparaiso Law Review — Margareth explains how the "Tar Baby story is instructive in understanding the latest developments in the regulation of federal sentencing."

Download etienne_re_booker.doc

February 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

East coast sentencing updates

Here is some news in the Monday morning papers on sentencing developments in New York and New Jersey:

February 28, 2005 in Blakely in the States, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Gearing up for March Madness

March is, of course, one of the most exciting sports months as we fill out our NCAA brackets and our fantasy baseball rosters.  But, with the busy Booker calender humming along and with other big events on the near horizon, March is also shaping up to be an exciting sentencing month.  Consider:

March 1:  Arguments in the New Jersey Supreme Court in major Blakely cases, which can be followed via live webcast at 10am at this linkUPDATE: Due to the severe weather, these arguments have been postponed until March 14.

March 1 and 2:  The next decision days for the Supreme Court, allowing for more watching for decisions in Roper v. Simmons, the juvenile death penalty case, and Shepard v. US, the criminal history case.

March 7: En banc arguments in the Tenth Circuit on Booker issues (basics here).

March 9: En banc arguments in the Eighth Circuit on Booker plain error (basics here).

March 10-11: As detailed here, Ohio State's Justice for Children Project, in conjunction with the Ohio State Journal of Criminal Law and the OSU Center for Law, Policy, and Social Science, will sponsor a conference entitled "The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law."  The event's full brochure is linked here.

March 21, 28, 30: Supreme Court arguments in major corrections (Cutter v. Wilkinson and Wilkinson v. Austin) and death penalty (Medellin v. Dretke) cases.

March 25: As detailed here, the William and Mary School of Law presents a symposium entitled "In Prison for 30 Years for Fraud: Sentencing and the Constitution After Sarbanes-Oxley."

In addition, I anticipate that before the end of March we may see a proposal from the Justice Department for some sort of "Booker fix" and/or Senate hearings examining the Booker fallout.  In addition, as explained here, I am very hopeful that we will get updated post-Booker sentencing data from the US Sentencing Commission in March.

February 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (198) | TrackBack

Can the plain error mess be cleaned up?

This week the Booker plain error mess got even messier.  The Seventh Circuit in Paladino joined the Second Circuit adopting something of a plain error middle-ground (and the Second Circuit reiterated its Crosby approach in Williams), while the First Circuit in Antonakopoulos joined the Eleventh Circuit in taking a tough line on plain error (and the Eleventh Circuit reiterated its Rodriguez approach in Duncan).   Meanwhile, in an effort to undue the most generous plain error standard, the government has sought en banc review of Hughes in the Fourth Circuit and Ameline in the Ninth Circuit (the Ameline briefs are collected here).

In the midst of these developments, I asked here whether the Supreme Court might try to clean up the plain error mess.  The problem is that, even if SCOTUS were to grant cert. on this issue, it might still be a year or more before we would get a definitive decision.  These realities have me pondering whether Congress or the US Sentencing Commission could, on a quicker timeline and in service to the goal of sentencing uniformity, do something now to harmonize plain error decision-making.  Though I doubt either Congress or the USSC will act in this arena, it is fascinating (and quite challenging) to think through whether and how Congress or the USSC could even try to clean up the plain error mess.

February 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (4) | TrackBack

Booker items in the Third Branch

The Third Branch, the official newsletter of the federal courts, has a troika of Booker items in its February 2005 issue: this Booker-focused interview with Judge Sim Lake, chair of the Judicial Conference Committee on Criminal Law, this account of varied official reactions to Booker, and this review of the memo from Judge Lake and USSC Chair Hinojosa to courts stressing the importance of continuing to submit sentencing documents to the US Sentencing Commission.

February 28, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

February 27, 2005

Sentencing around the blogsphere

Just a few moments on-line this morning has allowed me to see more than a few recent sentencing items on other blogs.  TalkLeft has two interesting posts on death penalty issues with this post on a Nevada bill to eliminate the death penalty for juveniles, and this post about an effort to raise the burden of proof in Illinois death penalty cases.  And Howard Bashman is back at How Appealing (huzzah!), and he has linked here a lot of the coverage of the Supreme Court's criminal justice decisions last week.

On the Booker front, I see here that the PRACDL is seeking to collect information from lawyers about each sentencing  hearing they attend "so as to give us all a better idea of how Judges are sentencing post-Booker."  And the Second Circuit Blog here has coverage of the Second Circuit's recent Williams decision (basics here).

February 27, 2005 in Booker and Fanfan Commentary, Death Penalty Reforms | Permalink | Comments (3) | TrackBack