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December 29, 2006

Top 10 sentencing stories from 2006

Generally speaking, 2006 was a much calmer year for sentencing developments than 2004 (discussed here) and 2005 (reviewed here and here).  Nevertheless, the year brought plenty of eventful sentencing stories, and below I provide my take on the top 10. 

10. The paucity of "tough-on-crime" politicking.  Reports of rising crime rates and a Republican party with few good election themes had me expecting "tough-on-crime" political rhetoric throughout the election season.  But this political dog did not bark, perhaps because Democrats have been consistently "tough" or perhaps because Republicans have found a new prison religion.

9. Continued rise in US incarceration.  Though the politics of crime may no longer be out-of-whack, the impact of 20 years of tough-on-crime attitudes continued to be seen in record incarceration rates and overcrowded prisons in state after state.  In California, the situation has gotten so bad, some sensible reform might even emerge (details here and here).

8. High-profile white-collar sentencings.  Defendants Jack Abramoff, Bernie Ebbers, Andrew Fastow, Jamie Olis, George Ryan and Jeff Skilling all made sentencing headlines this year.  Interestingly, Andrew Fastow and Jamie Olis got the same sentence, but the others' sentences were all over the map (and Ken Lay missed the sentencing fun by dying).  White Collar Crime Prof Blog has other related year-end highlights here.

7. Continued decline of death.  As perhaps spotlighted by Moussaoui escaping the death penalty, there was more mounting evidence that the death penalty is continuing to die a slow death.  In 2006, there was another reduction in the number of death sentences and in the number of executions. (This DPIC report covers this story from all the angles.)

6.  More discussion of executive clemency.  Though notably grants of clemency remained rare in 2006, clemency issues continued to garner much attention.  Ken Starr played a high-profile role in a California clemency request, Maryland's out-going governor keep using this historic power.  Also, chief executives in Ohio, South Dakota, and Virginia put off scheduled executions for various reasons. 

5.  Stability in Supreme Court Sixth Amendment doctrine.  The addition of two new Justices could have prompted another round of Apprendi mania.  But, after 2004 brought Blakely, and 2005 brought Booker, 2006 lacked a major Sixth Amendment ruling because the Justices avoided cert on various issues and disposed of cases like Recuenco in disruption-avoiding ways.  However, as #3 below spotlights, 2006 may have been the calm before the storm...

4.  Stability in the federal sentencing system.  Nearly everyone (except me) predicted that Congress would respond legislatively to Blakely and Booker.  But, despite some posturing about a Booker fix, the Booker remedy remained in place as circuits resolved an array of post-Booker sentencing questions (almost always against defendants).  However, as #3 below spotlights, 2006 may have been the calm before the storm...

3.  Brewing instability for 2007.  The Supreme Court is poised to issue a number of major sentencing rulings in the first half of 2007.  Cunningham could (and likely will?) greatly impact the application of Blakely in the states (details here), and Claiborne and Rita could (and likely will?) greatly impact the application of Booker in federal courts (details here).  In addition, at least a few elected officials in other branches seem eager to disrupt some sentencing status quos.

2.  More sex offender mania and some pushback.  The severity and creativeness of sentencing for sex offenders reached new heights in 2006.  This category archive and the new blog Sex Crimes document that nearly every jurisdiction in the country was dealing with legislation or litigation involving sex offenders.  And though getting tougher remained the chief talking point, concerns about the impact of broad residency restrictions or severe mandatory sentences started to garner more attention.

1.  The lethal injection scrummages.  Karl Keys here provides a great account of "The Year of the Needle,"  and DPIC has kept this page updated with all the latest lethal injection developments.  In practical terms, lethal injection problems have disrupted the application of the death penalty far more than innocence concerns or any other issue.  The Supreme Court jump started this issue in January through its work in Hill v. Crosby, and December brought  moratoria in the two states — California and Florida — with the largest death rows.  In addition, nearly a dozen other jurisdictions have had executions blocked or delayed because of lethal injection issues.

Whew!  Quite a year.  Thoughtful readers, did I forget anything?

December 29, 2006 at 07:07 PM | Permalink


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Well, truthfully, we aren't, but according to Sentencing Law and Policy, sex offender laws are the number two sentencing story in the last year. Go here to read the rest of the list. [Read More]

Tracked on Dec 31, 2006 4:42:02 PM


I am a California Resident and my husband is in California state Prison. I am so appalled about the overcrowding, three stikes, ect. The problem with the overcrowding starts with the court system. I belived prior to this happening, you are presumed innocent until proven guilty. My expierece sitting in the court rooms, are not that any longer. You are premused guilty until proven innocent. such the example with my husand. He was convicted because of his 20 year old convictions, that is what we were told drove his case. My husband served his time and the issues are not even the same. I had seen the first judge, sit there yawn, look around and really paid not attention to any of the cases before her. Everything single one came with the same response, enough eveidence to hold over to Superior Court, which there was very little in the cases I watched. I used the public defender, knowing they were given the case 2 days prior, I did their work, picture, discounting the officers testimony. He personally talked with me while he was arresting my husband by cell phone using my husbands, He also personlly talked with me at court, He approached me... Not one of the files I had was even used in court. My husband assumed they had looked at it before he asked for a plea. I need help with trying to reform the court system.

Posted by: Raiko Stillman | Dec 30, 2006 1:24:44 PM

Thanks for the stories, the blog and the education.

May everyone's New Year be better than 2006.

Posted by: George | Dec 30, 2006 4:58:31 PM

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