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March 18, 2006

Weekend sentencing reading from SSRN

Recently posted on SSRN are these articles which should be of interest to folks interested in sentencing issues:

March 18, 2006 in Recommended reading | Permalink | Comments (0) | TrackBack

March 17, 2006

Where's the USSC's Booker report!?!?

Waldo There is a lot of new stuff at the US Sentencing Commission's website, including testimony from this week's USSC hearing (discussed here) and also news of the National Annual Seminar on the Federal Sentencing Guidelines taking place in Miami from May 31 to June 2, 2006 (brochure here, registration here).  But, as of this writing, there is also a notable omission from the USSC website:

The USSC's 277-page Booker report released earlier this week (discussed here and here) is missing!!

I cannot, as of this writing, find the report anywhere on the USSC's website, and this prior link to the report is now dead.  Perhaps the USSC decided to play its own version of Where's Waldo?, although I think something a bit fishier might be going on.  I am not one inclined to imagine conspiracies, but I certainly will be taking a second look at the Booker report's contents whenever it reappears.

UPDATEI have heard from someone in the know that the USSC, in preparing the Booker report for its final printing, took the report off the web to do one last check for any typographical, technical, or computational errors.  This was my benign guess about what was going on, and I expect we will see the report back up on the web soon.

Also, thanks to everyone who has already sent me a saved copy of the report.  I am truly grateful to have so many kind and thoughtful readers.

March 17, 2006 in Who Sentences | Permalink | Comments (1) | TrackBack

More reports from House Booker hearings

Though yesterday's House Booker hearing (basics here and here) has received relatively little attention, I can provide some additional views of the event.  For starters, the Sentencing Project has a brief recap of the hearing at this link.  In addition, an article about the hearing ran yesterday in CQ Today entitled "Justice Official Urges 'Minimum Guidelines System' to Limit Sentencing by Judges."  Here are snippets from that article:

Members of Congress adopted a wait-and-see posture after the Booker decision.  But House Republicans, citing a new report by the U.S. Sentencing Commission released this week, are now calling for a legislative response to curb judges' discretion.

Howard Coble, R-N.C., chairman of the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security, which held Thursday's hearing, said he would think through the testimony before endorsing any legislative approach. Judiciary Chairman F. James Sensenbrenner Jr., R-Wis., did not attend the hearing but said a day earlier that he and the attorney general "are going to be on the same page on this."...

Panel Republicans, Democrats and their witnesses drew sharply different conclusions about the Sentencing Commission's latest report on post-Booker sentencing practices and whether it justified congressional intervention.

In addition, soon after the hearing yesterday, Nkechi Taifa, a Senior Policy Analyst of the Open Society Institute circulated an e-mail with her "quick notes" on the event.  Nkechi was kind enough to permit me to post her notes on the blog, and then can now be downloaded below.

Download taifa_quick_notes_on_booker_hearing.rtf

March 17, 2006 in Legislative Reactions to Booker and Blakely, Who Sentences | Permalink | Comments (0) | TrackBack

Rough day for defendants in the circuits

Its been a relatively quiet week for sentencing rulings from the circuit courts (and I have not had the energy to report a number of smaller rulings).  But today brings a number of decisions from a number of circuits that seem worth noting.  The theme is that defendants' efforts to upset their sentences are rejected in all the rulings below:

From the Second Circuit: US v. Hicks, No. 04-3299 (2d Cir. Mar. 17, 2006) (available here) (affirming life sentence over various constitutional objections).

From the Seventh Circuit: US v. Owens, No. 05-2397 (7th Cir. Mar. 17, 2006) (available here) (discussing district court's refusal to depart/vary for various reasons).

From the Eighth Circuit: US v. Vasquez-Cardona, No. 05-3059 (8th Cir. Mar. 17, 2006) (available here) (discussing district court's refusal to depart/vary for fast-track disparity and other reasons).

From the Eleventh Circuit: US v. Brehm, No. 05-13426 (11th Cir. Mar. 17, 2006) (available here) (discussing application of the statutory safety valve after Booker).

UPDATE:  A reader's comment points me to a couple of habeas cases in which the Ninth Circuit broke ranks from this trend; perhaps the weekend will permit me time to discuss rulings that can be found here and here.

March 17, 2006 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

Interesting testimony at USSC hearing

Though overshadowed by the House Booker hearing on Thursday (basics here and here), the US Sentencing conducted a full-day public hearing on Wednesday, and now nearly all the written testimony from that hearing can be accessed at the USSC website at this link.  Most witnesses at this hearing focused on particular guideline amendments that the USSC has proposed during this amendment cycle.

Notably, Kathleen M. Williams, the Federal Public Defender from the Southern District of Florida, focused her written testimony on the post-Booker forest rather than on the guideline trees.  Here is a notable portion of that testimony (which is available here):

The federal prison population has skyrocketed, rising from 24,000 in 1980 to over 188,000 today, at a cost of over $4 billion per year.  The Federal Bureau of Prisons is now 40% over capacity, has eliminated or restricted many treatment and rehabilitation programs in recent years, and increasingly fails to provide adequate medical care.  Approximately 65% of these defendants — these father, mothers, husbands, wives, sons, and daughters — whom we have incarcerated are Black or Hispanic.

In the wake of Booker, the Commission must re-examine its role and responsibility in this unprecedented social and juridical tragedy.  For eighteen years, and through 680 amendments, the Commission has approved a steady increase in Guidelines sentences.  It has added and increased the impact of aggravating factors year after year, but only rarely added mitigating factors.  Worse, many mitigating factors that were present in early versions of the Guidelines have been removed.  Although Congress mandated some of these changes, most were initiated by the Commission itself.  For example, independent of mandatory minimum laws, by 2002, the Guidelines accounted for 25% of the more than doubling of drug trafficking sentences, the tripling of immigration offense sentences, and a doubling of sentences for firearm possession and trafficking.

March 17, 2006 in Who Sentences | Permalink | Comments (0) | TrackBack

The power of legal blogs

The Daily Court Review today has this story, entitled "Hobby Turns Into Project To Track Lawyers' Blogs And Their Impact," which discusses the taxonomy of legal blogs being developed by OSU's own Ian Best at 3L Epiphany.  Here is a snippet:

Best says the best feature of the multitude of legal blogs is how research is presented.  Legal journals, he said, tend to be more static while the legal blogs are more interactive, making it easier to learn from.  He discovered, for instance, that not only attorneys and judges were reading [Douglas Berman's] blog about sentencing guidelines.  "Criminal defendants and victims were reading his blog," Best said. "They're not going to pick up a law journal. But they can read this and learn how this applies to their situation. This moves away from the ivory tower."...

Though the notoriety blogging has received is recent, Best said what it could achieve for the legal profession and mass communication is a broader audience and a more educated public. "It's all online and it's a superior way of doing it," he said.  "That'll be an outreach to the public.  Legal blogs have a real potential that can be transformed."

March 17, 2006 in On blogging | Permalink | Comments (3) | TrackBack

Lots of interesting sentencing stories

Yesterday's House Booker hearing (basics here and here) seems to have received remarkably little press coverage.  But there are some other interesting sentencing stories in the newspapers this morning:

Death penalty stories:

Sex offender sentencing stories:

March 17, 2006 in Death Penalty Reforms, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Foster's impact on plea bargains and appeals

The Athens News has this terrific article discussing the Ohio Supreme Court's Foster decision, which found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy.  The article does a particularly good job examining Foster's likely impact on plea bargaining and appellate review.

Some recent posts on Foster:

March 17, 2006 in Blakely in the States | Permalink | Comments (5) | TrackBack

March 16, 2006

Rhode Island considering reducing drug sentences

As detailed in this AP story, "Rhode Island legislators are considering a bill that would eliminate minimum sentences for some drug crimes and give judges more leeway to direct first-time offenders to treatment programs."  Here are some more details:

Current state law requires judges to sentence offenders to at least 10 years in prison for possession or sale of one ounce or more of heroin or cocaine.  People convicted with more than a kilogram of the drugs receive a minimum of 20 years in prison.

A Senate bill would eliminate the mandatory minimums and give judges more discretion.  The maximum sentence would be 30 years, instead of the current life behind bars.

Sen. Harold Metts, D-Providence, said he introduced the bill in part to help first-time offenders who may benefit from drug treatment and rehabilitation programs.  "Some people learn from their mistakes," said Metts, a Baptist deacon who volunteers at Rhode Island's state prison.  "But if you're going to be locked up for 20 years, you're probably going to come out a worse person than when you went in."

Members of Congress, are you listening?

March 16, 2006 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Judge Presnell on crack/powder disparity

District Judge Gregory Presnell, who long ago secured a place in my Sentencing Hall of Fame, today provides his take on the crack/powder debate and other Booker factors in US v. Hamilton, No. 6:05-cr-157-Orl-31JGG (M.D. Fla. Mar. 16, 2006) (available for download below).  Here is a snippet:

This arbitrary and discriminatory disparity between powder and crack cocaine implicates the Section 3553(a)(2)(A) factors.  Unless one assumes the penalties for powder cocaine are vastly too low, then the far-higher penalties for crack are at odds with the seriousness of the offense. The absence of a logical rationale for such a disparity and its disproportionate impact on one historically disfavored race promotes disrespect for the law and suggests that the resulting sentences are unjust.  Accordingly, these statutory factors weigh heavily against the imposition of a Guidelines sentence.

Download presnell_hamilton_opinion.pdf

Other notable sentencing opinions from Judge Presnell:

Other notable sentencing opinions on crack sentencing:

March 16, 2006 in Booker in district courts | Permalink | Comments (1) | TrackBack

Following the standard script at House hearing

TI have just returned from speaking at the Ohio Northern University Pettit College of Law (where I was wonderfully hosted), and I see that today's House Booker hearing is now web archived at this link along with the written testimony of all four witnesses.  I surmise from the written testimony that each witness largely played the expected roles: DOJ representative Bill Mercer pushed for topless guidelines as a Booker fix, while everyone else highlighted that there was no need for an immediate legislative response to Booker.

I hope to comment more about the House hearing after having a chance to watch the full webcast late tonight.  (First, keeping my priorities straight, I have to watch some basketball and check my brackets.)  But one line in Mercer's written testimony really caught my eye.  In calling for a Booker fix, Mercer says DOJ believes "the simplest, most efficient, and most effective way of reinstituting mandatory sentencing is through a minimum guidelines system."

In at least one sense, this is blatant falsehood: the simplest way to reinstitute mandatory sentencing would be for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens explained, that remedy would not require any changes to the Sentencing Reform Act; Congress could simply express its intent for the guidelines to be mandatory even though aggravating facts triggering longer sentences would have to be proven to a jury or admitted by the defendant.  This solution would clearly be constitutional and reinstitute mandatory sentencing, but DOJ does not seek a legislative solution that — gasp! — might actually give defendants the procedural rights that Blakely and Booker were supposedly about.

March 16, 2006 in Booker and Fanfan Commentary, Legislative Reactions to Booker and Blakely, Who Sentences | Permalink | Comments (5) | TrackBack

A viewer's guide to Booker House hearing

The Oversight Hearing on post-Booker developments to be conducted Thursday morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will be webcast live starting at 10:30am and can be accessed from this link. I have the honor of speaking today at the Ohio Northern University Petit College of Law (details here), so I will miss all the fun.  Nevertheless, I think I can predict much of what one should expect to see at the House hearing.

As detailed before here and here, the scheduled witnesses are USSC Chair Judge Ricardo Hinojosa, Judge Paul Cassell, attorney James Felman and Principle Associate Deputy AG William Mercer.  I have heard a lot of buzz suggesting that the Department of Justice will use this hearing to push for a "minimum guideline system" Booker fix (aka topless guidelines).  Recall that AG Alberto Gonzales endorsed this idea when calling for a legislative "Booker fix" in a speech last summer (basics here, commentary here and here and here).  Meanwhile, as is already clear from their written testimony (available here), Judge Paul Cassell and attorney James Felman will explain why they do not believe any major Booker fix legislation is needed and also why a topless guidelines system would be a very bad idea.  Judge Cassell's testimony call topless guidelines a "scheme [that] looks like a gimmick."

The big question for the hearing is whether USSC Chair Hinojosa will make any specific legislative recommendations or will just set forth data and express the Commission's eagerness to work with Congress.  The USSC's impressive (and massive) Booker report released this week (discussed here and here) has a lot of intricate data analysis, but relatively few broad assessments of the post-Booker world.  I am hopeful, but not confident, that Judge Hinojosa will tell the House Subcommittee that major Booker fix legislation is not needed and could undermine the broader goals of sentencing reform.

Based on the recent comments from members of Congress (background here and here and here), we should expect a lot of focus on sentencing in sex offense cases post-Booker.  Of course, folks in the know realize that very few sex offenses are sentenced in federal court, as these cases occupy less than .5% of the federal criminal docket.  In addition, the USSC statistics show that sex offense sentences have gone up after Booker, even though there have been more below-guideline sentences.

As I have detailed before, lots of general background on the brewing Booker fix debate can be found in recent issues of the Federal Sentencing Reporter and also through my "Dead Booker walking?" series which explores arguments that DOJ might make in support of a Booker fix:

Additional useful background can also be found in the recent Legal Affairs' Debate Club at this link where Professor Frank Bowman and I explored the future of federal sentencing.

March 16, 2006 | Permalink | Comments (1) | TrackBack

Whew, what a Wednesday

I predicted Booker March Madness would kick in this week, and Wednesday surely lived up to this billing.  Here are the day's highlights:

Booker hearing developments:

Other notable developments:

March 16, 2006 in Recap posts | Permalink | Comments (0) | TrackBack

Lots of interesting sentencing headlines

Though I have found relatively little press coverage of the Booker brouhaha, there are many other interesting sentencing stories in the papers today.  Of course, developments in the federal death penalty case against Zacarias Moussaoui is getting lots of attention, and How Appealing has media links here and also notes this FindLaw essay by Edward Lazarus entitled "The Moussaoui Trial: It's High Time The Death Penalty Is Taken Off the Table."  In addition, sentencing fans may be interested in some of these other stories from around the country:

March 16, 2006 | Permalink | Comments (0) | TrackBack

Editorial on USSC Booker report and reaction

The Massachusetts newspaper The Republican this morning has this notable editorial entitled "Study on sentencing ought to quell critics," which discusses US Sentencing Commission's Booker report (details here and here) and congressional reaction.  Here is a taste:

A 277-page report released by the U.S. Sentencing Commission, the body that sets the guidelines for judges, ought to have calmed critics of the Supreme Court's ruling. But it hasn't. The chairman of the House Judiciary Committee, Rep. James Sensenbrenner, R-Wis., not only didn't find any solace in the study, he saw in the report reason to try to write new laws that would keep the judges from judging.

The problem with a book of rules delineating criminal sentences ought to be obvious. A crime that might appear on the surface to be like another crime — at least according to what is stipulated in the sentencing rulebook — could well, in fact, be quite different. That's where a judge comes in — to look at the facts of the case at hand.

But for Sensenbrenner — and others of a similar bent — that's not good enough. Congress is good at many things, but deciding that lawmakers know better than federal judges — no matter the case — is not one of them.

Federal judges have a set of sentencing guidelines that they follow in the great majority of cases. But they also have the knowledge and wisdom and experience to pursue a different course when the situation so warrants.  The Supreme Court's ruling 14 months ago sought to ensure that judges retain that power.  Lawmakers would do well to let that decision stand as it is.

March 16, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

March 15, 2006

Updates on Booker hearings

Tomorrow at 10:30 am is the big oversight hearing in the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security entitled "United States v. Booker: One Year Later -- Chaos or Status Quo?". Subcommittee Chair Rep. Howard Coble (R-N.C.) has issued this news advisory which confirms the witness list I detailed in this post and reveals that testifying on behalf of DOJ will be William Mercer.

Today, the comments by House Judiciary Committee Chair James Sensenbrenner's (detailed here and here) overshadowed the hearing held by the US Sentencing Commission.  The USSC just posted this agenda/witness list from the hearing, and I would be eager to hear a report from anyone in attendance. 

Back to the House heing, the US Courts has this press release about Judge Paul Cassell's planned testimony on behalf of the Criminal Law Committee of the Judicial Conference of the United States.  As the press release details:

Congress is being told there is "no need for ... 'Booker fix' legislation" because federal judges' practices in sending convicted criminals to prison remain much the same as they were before the Supreme Court's 2005 decision that invalidated mandatory sentencing guidelines.

Judge Cassell's full prepared written testimony (all glorious 80 pages) which fills out this point — and many other astute points — can be accessed at this link.  And when you've consumed Judge Cassell's amazing effort, you can then also read the prepared written testimony of attorney James Felman, who kindly sent his text for me to post here: Download felman_testimony.pdf

March 15, 2006 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences | Permalink | Comments (0) | TrackBack

Ohio AG response to reconsideration motion in Foster

State Blakely fans may recall that, after the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here), the Foster defendants and a supporting amicus filed for reconsideration in the Ohio Supreme Court claiming that the retroactive application of the remedy was unconstitutional.  (All the details are here.)  Today, the Ohio Attorney General filed a potent amicus brief with the Ohio Supreme Court explaining why it believes the motion for reconsideration is all washed up.  You can download this brief here:

Download foster_memorandum_amicus_curiae_opposing_motion_for_reconsideration.pdf

Recent posts on Foster:

March 15, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Capital sentencing news and notes

Though Booker action has most of my attention, there is a lot of remarkable capital sentencing news worthy of a quick review:

March 15, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Quotes from Sensenbrenner press conference

The latest version of this AP piece on the USSC's Booker report and congressional reaction now has these additional notable passages:

Sensenbrenner said at a news conference Wednesday that House Republicans are contemplating several pieces of legislation to rein in what he said were lenient judges, although it will be months before a proposal is drafted and introduced. 

Rep. Howard Coble, R-N.C., chairman of a House subcommittee on crime, said that last year Chief Justice William Rehnquist advised him to hold up on any congressional action until enough time had passed to gauge the effect of the ruling. Rehnquist died last September. "He suggested that we keep our powder dry, be calm and deliberate, which we've done," Coble said. "We are not guilty of knee-jerk reactions."

UPDATE: The Wall Street Journal's Washington Wire blog has this blurb about this brouhaha, which includes this discussion of the press conference:

[S]ome Republicans on the House Judiciary Committee held a press conference Wednesday to reiterate their concern that sentences are more lenient than Congress intended, especially for sex crimes against children. Florida Republican Tom Feeney said he found it "deplorable that some judges are working to undermine tough legislation that is designed to protect our children."

March 15, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Let's get ready to Booker rumble...

To follow up his fiery statement (discussed here) about the US Sentencing Commission's impressive (and massive) Booker report (details here and here), House Judiciary Committee Chair James Sensenbrenner has a press conference scheduled for 1:30pm today in Washington DC.  Details are in this news advisory issued yesterday, which includes this explanation:

[T]he United States Sentencing Commission released its Report on the Impact of United States v. Booker on Federal Sentencing. In 2003, Congress passed the PROTECT Act to address many of the sentencing problems [this] report shows have resurfaced since the Supreme Court threw out the Federal Sentencing Guidelines.  Given the problems found in the Sentencing Commission's report and Congress' interest in ensuring that federal judges are not giving lenient, below-guideline range sentences to pedophiles, child sex offenders, and child pornographers, legislation is likely and will be discussed at Wednesday's press conference.

I suspect every federal judge will be quite surprised to learn that in Booker "the Supreme Court threw out the Federal Sentencing Guidelines."  But no one should be surprise to see Sensenbrenner wasting no time in heating up "tough on crime" rhetoric.

Recent posts on USSC report and Thursday's House hearing:

Recent posts on Booker fix issues:

UPDATE: Gina Holland from the AP has this piece on the USSC's Booker report and Sensenbrenner's reaction.  The report includes this ominous line: "House Judiciary Committee Chairman James Sensenbrenner, R-Wis., said that his committee would begin drafting a new system for sentencing people convicted in federal courts."

March 15, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Eighth Circuit en banc on DWI as violent felonies

In a lengthy en banc opinion, the Eighth Circuit today in US v. McCall, No. 04-1143 (8th Cir. Mar. 16, 2006) (available here), addresses whether and when DWI can qualify as "violent felony" for purposes of § 924(e)(2)(B)(ii).  Here is the description of the McCall ruling from the Eighth Circuit's official opinion page:

A Missouri felony driving while intoxicated conviction is a conviction for a violent felony for the "otherwise involves" provision of 18 U.S.C. Sec. 924(e)(2)(B)(ii); however, because the Missouri felony driving while intoxicated offense includes non-driving conduct as well, the case must be remanded for further sentencing proceedings at which the government may seek to prove that defendant's prior convictions were driving offenses, using the limited universe of evidence permitted in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 125 S. Ct 1254 (2005). Judge Lay, dissenting, joined by Judge Wollman and Judge Bye.

March 15, 2006 in Offense Characteristics | Permalink | Comments (1) | TrackBack

Why did Justice Alito withdraw from Sentencing Initiative?

As detailed here, the Constitution Project's Sentencing Initiative has released a important report elaborating on its principles for criminal sentencing reform.  At the outset of the report, there is an interesting procedural footnote that follows up on an issue I raised last fall relating to Justice Alito's involvement in the Sentencing Initiative's Committee work:

Justice Alito participated actively in the deliberations that produced and approved the Committee's Principles.  However, his nomination to the Supreme Court in Fall 2005 precluded his participation in drafting and approving this Report.  His confirmation to the Court has now compelled him to withdraw from the Committee.

Though surely prudential (and workload) reasons might have prompted Justice Alito to withdraw, I don't see why he should have felt "compelled" to do so.  As I said in this post following his nomination: "I hope Judge Alito continues to serve on the Constitution Project's Sentencing Initiative.  His service to date suggests there is no ethical conflict with a sitting judge participating in a policy discussion of sentencing issues even when related legal issues could arise in his court.  Consequently, I see no ethical reason why Judge Alito should not continue to play a role in the very important work being done by the Constitution Project's Sentencing Initiative."

Related posts:

March 15, 2006 in Who Sentences | Permalink | Comments (0) | TrackBack

Constitution Project releases report on sentencing reforms

In a timely move as the Booker fix story heats up (background here and here), the Constitution Project's Sentencing Initiative has officially released the background report produced by its blue-ribbon Committee for its "Principles for the Design and Reform of Sentencing Systems."  This report serves as an elaboration of the ideas and principles for reform of criminal sentencing systems set forth by the Constitution Project's Sentencing Initiative last summer (and first discussed here and here).

This background report can be downloaded at this link.  Here is a snippet from the report's introduction, which provides more information of the Committee's work:

The Committee has approached its work in two phases. First, the Committee studied the history and present situation of American criminal sentencing, with particular emphasis on federal sentencing, and agreed upon a set of principles for the design and reform of sentencing systems.  This Report enumerates these principles and summarizes the thinking that led to their adoption.  The first ten principles are applicable to both state and federal sentencing systems, while the final two focus on the federal structure built around the Federal Sentencing Guidelines.  In the second, ongoing, phase of its work, the Committee is attempting to craft recommendations aimed at making the federal sentencing system consistent with the principles.  The Committee anticipates issuing a second report detailing these recommendations.

March 15, 2006 in Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Who says crime doesn't pay?

The Eleventh Circuit today addressed an interesting guideline interpretation issue in US v. Paley, No. 05-13422 (11th Cir. Mar. 15, 2006) (available here).  The case considers whether the "the total amount of the laundered funds for which Paley was accountable under USSG § 2S1.1" should include "the appreciation in value of an asset purchased with drug proceeds."  The title of this post perhaps gives away the Eleventh Circuit's answer.  Paley is also interesting because it closes with this sentiment:

We note in closing that this is a good example of a case in which the district court could have avoided the necessity of appellate review and a remand for resentencing on this issue by explicitly stating — if true — that even if the court were wrong on the disputed guidelines issue, it would have imposed the same sentence under the guidelines (since the sentence was within both possible ranges) or by using the 18 U.S.C. § 3553(a) factors.

March 15, 2006 in Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Sensenbrenner takes the gloves off ... will the judiciary fight back?

As I explained in posts here and here, I read the US Sentencing Commission's impressive (and massive) Booker report to suggest major Booker fix legislation is not needed.  But, as evidenced by the fiery statements in this press release from House Judiciary Committee Chair James Sensenbrenner, one can have a different take on the post-Booker world.  Here are snippets from Sensenbrenner's statement:

Last year, I stated that the Judiciary Committee would take no action in response to the Supreme Court's decision, but would evaluate this issue one year later after there was sufficient experience with the "advisory" guideline system.

The data is now in and the picture is not pretty.  The Sentencing Commission's report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act, and jeopardized the basic precept of our federal court system that all defendants should be treated equally under the law.

The PROTECT Act enacted in 2003 ensured that appropriate sentences would be administered to sex offenders, pedophiles, child pornographers, and those who prey on our children.  Thus, I am troubled that the Commission's Report shows that these fundamental sentencing reforms have been effectively eliminated.  That is neither good nor acceptable for justice and public safety.

While the overall average sentence length increased after the Booker decision, such an increase reflects the fact that Congress amended numerous criminal statutes, thereby increasing the applicable sentencing range for crimes such as identity theft, terrorism, cybercrime, and sex offenses.  Even with these increased guideline ranges, the sentencing data shows that Federal judges have not embraced, and in many cases, have undermined, Congress' specific intent in these areas.

In response to the problems described in this report, the Judiciary Committee intends to pursue legislative solutions to restore America's confidence in a fair and equal federal criminal justice system.  I look forward to working with the Sentencing Commission, the Justice Department, and others to bring together a practical and effective solution to this problem.

I am highly discouraged by Sensenbrenner's heated rhetoric and troubled by a number of his claims.  The idea that Booker produces "unrestrained judicial discretion" is inaccurate, as is the suggestion that federal judges are undermining the purposes of the Sentencing Reform Act or Congress' specific intent.  And this statement certainly indicates that Sensenbrenner is eager to pursue Booker fix legislation.

Of course, if Sensenbrenner was truly committed to a "fair and equal federal criminal justice system," he could propose legislation to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens explained, that remedy would not require any changes to the Sentencing Reform Act; Congress could simply express its intent for the guidelines to be mandatory even though aggravating facts triggering longer sentences would have to be proven to a jury or admitted by the defendant.  This solution would (1) clearly be constitutional, (2) make the guidelines mandatory again, and (3) produce a "practical and effective solution" to the problems Sensenbrenner claims to be concerned about.

March 15, 2006 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences | Permalink | Comments (1) | TrackBack

The federal litigation shock of Blakely and Booker

With thanks to How Appealing, I see that the Administrative Office of the U.S. Courts has issued this news release which documents some of the impact of Blakely and Booker on the workload of the federal courts.  Here are some criminal law filing details from the release:

Criminal appeals jumped 28 percent in FY 2005 to 16,060, with growth in cases related to nearly all types of crimes.  The most significant increases were in appeals related to drug offenses (up 31 percent to 6,099); immigration (up 55 percent to 2,896); firearms and explosives (up 23 percent to 2,505); and property (up 15 percent to 1,967)....

Original proceedings [in circuit courts] climbed 23 percent to 5,017 as state and federal prisoners filed 3,617 second or successive motions for permission to file habeas corpus petitions (up 42 percent) following the Supreme Court's decisions in Blakely v. Washington and U.S. v. Booker....

The new release also has some interesting data in changes in the case mix of criminal filings in the federal district courts:

Nationwide, criminal filings in the U.S. district courts fell 2 percent to 69,575 in FY 2005, and the number of defendants in these cases dropped 1 percent to 92,226.  Despite the overall decline, increases occurred in cases involving drugs other than marijuana, sex offenses, and immigration offenses.

March 15, 2006 in Blakely Commentary and News, Booker and Fanfan Commentary, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

March 14, 2006

Initial reflections on the USSC Booker report

As noted before, the US Sentencing Commission's impressive (and massive) Booker report (available here) is a bit overwhelming.  Nevertheless, having completed a quick first pass, I want to explain why the report reinforces my view that major Booker fix legislation does not seem necessary.

To begin, we must recall key reasons why the pre-Booker system cannot be the sole metric for judging the post-Booker world.  As I explained in this Legal Affairs debate with Frank Bowman:

[There are] two fundamental reasons why pre-Booker realities cannot nor should not be our gold standard for assessing the current state of federal sentencing: (1) the pre-Booker sentencing system, according to the Supreme Court, violated defendants' Sixth Amendment rights, and (2) the pre-Booker sentencing system, according to nearly all observers, distinguished itself by virtue of its overall complexity, rigidity and harshness.  Consequently, because the pre-Booker sentencing system was both unconstitutional and unsound, evidence of "decreased compliance" with the guidelines perhaps should be a cause for celebration and not concern.

With this important backdrop, three findings from the report especially caught my attention:

Add all this up, and I come to the basic conclusion that federal judges are, generally speaking, using their new post-Booker discretion quite cautiously and wisely.  As the old proverb goes, "If it ain't broke, don't fix it."  I see little evidence in the USSC's report of federal sentencing being broken (or at least being broken in new ways).

Of course, federal sentencing has arguably become a bit more complex and harsh after Booker, even as it has become slightly less rigid.  I would favor reforms that would ease the complexity and harshness of the current system (though these reforms could and should come from the USSC after further study).  Disconcertingly, the "minimum guideline system" that the Justice Department fancies would increase the rigidity and the harshness of federal sentencing — while also, of course, raising new constitutional and practical questions that would also increase complexity.

Some recent Booker fix posts:

March 14, 2006 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences | Permalink | Comments (2) | TrackBack

Two decisions of note from the First Circuit

The federal circuits have been relative quiet on the sentencing front this week (perhaps everyone is busy working on brackets).  But a little action comes today from the First Circuit with US v. Cruzado-Laureano, No. 05-1822 (1st Cir. Mar. 14, 2006) (available here) and US v. Narváez-Rosario, No. 05-1355 (1st Cir. Mar. 14, 2006) (available here).

Cruzado-Laureano deals with a guideline calculation iusse in a fraud case, and Appellate Law & Practice has  highlights here; Narváez-Rosario deals with application of the safety-valve in a drug case, and AL&P again provides the basics here.

March 14, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Sentencing Commission releases Booker report!

Now appearing on the US Sentencing Commission's Booker webpage is the Commission's long-awaited — at least by me — Booker report.  Available at this link, the report is simply entitled "Report on the Impact of United States v. Booker on Federal Sentencing," and the full pdf runs 277 pages(!).  I will, of course, comment at length as I consume what the USSC has to say about the post-Booker world.

UPDATE: There is so much of interest in the USSC Booker report; I am a bit overwhelmed.  The Commission is to be complimented for producing such a massive and detailed report in anticipation for this week's hearings on federal sentencing (background here and here).  From a quick scan, I do not see any concrete recommendations from the USSC in this Booker report, though perhaps that will come in a subsequent documents or in USSC Chair Ricardo Hinojosa's testimony at the House Judiciary Committee hearing (details here).  Also based on a quick scan, here is a notable sound-bite: "The severity of sentences imposed has not changed substantially across time. The average sentence length after Booker has increased."  USSC Report at p. vii.

I now have to dash off to this event, but I hope to be able to comment on the report more this afternoon.

ANOTHER UPDATEI sequestered myself in a local coffee shop for a couple hours this afternoon to consume the USSC Booker report.  I have three basic reactions, which I hope to elaborate upon in subsequent posts:

  1. This is a fantastic report that is a must-read (or at least must-skim) for all policy-makers and practitioners interested in federal sentencing developments.
  2. The report has a lot of intricate analysis, but relatively few broad assessments, of the post-Booker world.
  3. Though the Justice Department might find bits of data from the report to make a case for a Booker fix, I see the report as reinforcing my own view that the post-Booker world is not badly broken.

March 14, 2006 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Death penalty developments down south

Yesterday brought some notable death penalty news from a number of southern states:

Also, over at Capital Defense Weekly, Karl Keys has a lot of new posts about recent circuit decisions and other notable death penalty developments.

March 14, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

March 13, 2006

California's sentencing and corrections woes

A thoughtful reader pointed me to this strong piece from Sunday's San Francisco Chronicle, entitled "Prison reform needs reform: Corrections system can't do task alone," which discusses the woes of California's sentencing and corrections system. Here's a snippet:

Scholars ... who have studied California's overcrowded, $8 billion corrections system have repeatedly concluded that many of the system's troubles stem from poorly thought out criminal justice policies.

Sentencing laws enacted more than 30 years ago, and repeatedly described as a failure, require nothing of inmates, who sit in cells or on yards instead of entering drug treatment or vocational education programs.  Corrections administrators have little power to determine when an inmate is truly ready to leave prison, and that results in the daily release of dangerous people back into the neighborhoods they previously terrorized.  Overburdened parole agents are required to monitor virtually every parolee, leaving the agents little time to concentrate on the parolees most likely to pose a threat to citizens.  That has resulted in this shocking fact: More than 20,000 California parolees are unaccounted for on any given day....

And many scholars say lawmakers continue to make bad decisions based more on headlines and emotional pleas than on a growing body of data that suggests how states can run cost efficient and effective prisons and parole systems....  Rarely are costs — or studies showing effectiveness — considered. The results make working in the state's penal system difficult and contribute to parolees churning in and out of jam-packed prisons.

March 13, 2006 in State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Notable developments in Moussaoui trial

As detailed in this AP story, this morning U.S. District Judge Leonie Brinkema "unexpectedly recessed the death penalty trial of al Qaeda conspirator Zacarias Moussaoui to consider whether government violations of her rules against coaching witnesses should remove the death penalty as an option."

UPDATE: Great coverage of the developments in the Moussaoui trial can be found over at TalkLeft here, at How Appealing here and here, and at SCOTUSblog here.

March 13, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Blog news and notes

1.  The folks running the Law Prof Blog Network have asked me to ask readers to please take a moment to fill out a short reader survey here.  The goal is to have a better idea about who is reading this blog so the network can better serve readers.  Thanks in advance for your help.  (The survey will remain at the top of the middle column throughout this week.)

2.  As detailed here over at 3L Epiphany — which is still creating buzz with his list of over 600 law blogs — the next two days uber-blogger Howard Bashman is on my turf.  (We will be speaking together tomorrow at this event.)

3.  As explained here, Prof. Orin Kerr has decided to open his own blog shingle at OrinKerr.com.

March 13, 2006 in On blogging | Permalink | Comments (3) | TrackBack

March 12, 2006

Taking stock of recent developments and gearing up

This coming week will be filled with lots of Booker buzz (along with, of course, bracket buzz).  I am especially looking forward to the hearing in the House Judiciary Committee and the Booker report from the Sentencing Commission (basics here).  Those gearing up for all the Booker fix fun will find a lot of links at the end of this post.  But, as detailed below, a lot more than Booker buzz has been going on since my last topical review of sentencing highlights:






March 12, 2006 in Recap posts | Permalink | Comments (0) | TrackBack

Great new federal sentencing blog

I just got word of the Second Circuit Sentencing Blog, which provides "summaries and commentary on substantive sentencing decisions in the Second Circuit."  This blog looks like a fantastic resource for practitioners trying to sort through the post-Booker world, especially because it analyzes and comments on all substantive sentencing decisions in the Second Circuit (including all district court opinions), and has category archives providing an analytic library of all such decisions.

March 12, 2006 | Permalink | Comments (0) | TrackBack

The latest (silly?) front in the lethal injection scrummages

As detailed in this Los Angeles Times article, the latest front in the lethal injection scrummages involved the ACLU asserting that the standard lethal injection protocol violates the First Amendment: "Contending that a drug used during executions prevents inmates from showing their pain by paralyzing them, the American Civil Liberties Union has filed a lawsuit alleging that the procedure violates the 1st Amendment."

Recalling my critiques of recent work by the ABA dealing with the death penalty in Georgia, I react to this lawsuit by wondering whether there aren't bigger First Amendment problems the ACLU could and should be working on these days.  Unsurprisingly, this lawsuit is grist for the mill here over at the Stop the ACLU blog.

Some recent related posts:

March 12, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Is capital punishment for repeat child molesters constitutional?

We will soon discussing in my sentencing class the Supreme Court's 1977 decision in Coker, which declared the death penalty unconstitutional for the crime of adult rape.  That case left open the question of whether child rape might be a death-eligible offense, and this article details that Coker's limits may soon become a very big question in Oklahoma:

Sponsors say a bill to permit repeat child molesters to be executed is neither cruel nor unusual, but experts say it could make matters worse for victims of sex crimes.  The measure by Sen. Jay Paul Gumm, D-Durant, flew though the Senate last week, 40-7. It goes on to the House, where it is sponsored by Rep. John Carey, another Durant Democrat.  "I anticipate it will come out of the House with flying colors," Mr. Carey said....

Legal scholars say that although myriad capital crimes are still on the books in many states, the Supreme Court has effectively limited the nation's ultimate punishment to murder cases.  Mr. Gumm says the Supreme Court has changed so much, "I feel confident this bill would be upheld."

"I consider this to be the most horrible of crimes," he said. "I think it is every bit as bad as murder, if not worse, because the ripples of child of child sexual abuse goes through the victim's life."

Even those who feel as strongly as Mr. Gumm about the seriousness of sexual offenses, however, are not as sure such legislation would pass constitutional muster. "I would be a little bit surprised if the Supreme Court approves of that, but I have been wrong before," said Wes Lane, Oklahoma County district attorney. "Nobody around here has any sympathy for child molesters," added Mr. Lane, saying he would gladly enforce such a law if it were upheld by the Supreme Court.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said that Louisiana passed a similar law several years ago, and that one man has been convicted under it and sent to death row."

UPDATE:  A helpful reader has suggested that folks interested in this topic might want to check out this recent article on SSRN by Corey Rayburn entitled "Better Dead than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes."

March 12, 2006 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (24) | TrackBack

High costs of the death penalty

The Lodi News-Sentinel yesteday ran this effective story, headlined "Price of death penalty has many questioning the punishment," which asserts that "the increasingly high cost of capital punishment in California has many questioning the worth of having the state carry out death sentences."  Among other interesting bits of data in the article is an assertion that "taxpayers have paid some $250 million to unsuccessfully carry out the death sentence handed down to [convicted murder Michael] Morales over two decades ago."

Related posts:

March 12, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Controversial sentencing reforms in UK

As detailed in articles here and here and here, prison overcrowding in the United Kingdom is leading to some controversial sentencing reform proposals across the pond:

Jail sentences for rapists are to be slashed under controversial new guidelines for judges revealed just days before an official campaign against rape is launched by the government.  In a move which critics warned would deter traumatised women from reporting sex crimes, the Sentencing Guidelines Council (SGC) is to recommend that future sentences for rape and other sexual offences be cut by 15 percent for most offenders.

The Observer can reveal that the council, an independent body advising the judiciary on how to interpret the law, will argue that men should serve shorter sentences because the prison regime is now 'more demanding'.

In a separate move, it is also expected to recommend shortly that men convicted of domestic violence could escape jail terms if they convince the courts they are capable of changing.  Instead they would be sent on courses in the community challenging their attitudes to women.

These moves would relieve pressure on Britain's overcrowded prisons.  But MPs and women's groups said they sent the wrong message about the crimes many women fear most, while victims could be dissuaded from the ordeal of testifying if they feared the result would only be a short sentence.

March 12, 2006 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack