Sentencing Law and Policy

A couple of compelling capital commentaries

Two great commentaries about capital cases in the news are available on-line this weekend:

• Commenting on the Hill lethal injection case, Ronald Bailey at Reason has this piece, "Killing Me Softly: Is putting down a murderer cruel and unusual?"  Here are some potent quotes: "I frankly do not care if pre-meditated murderers experience a few moments of pain on their way to well-deserved oblivion.... As harsh as it sounds, if lethal injection is good enough to end the suffering of a beloved pet, it's probably too good for a pre-meditated murderer."

• Commenting on the on-going Moussaoui case, Howard Bashman at law.com has this thoughtful analysis entitled "Considering a Likely Appeal in the Moussaoui Case." Here is Howard's great closing line: "Whether Moussaoui is crazy or crazy like a fox may never be definitively resolved, but any appeal that follows Moussaoui's sentencing could prove to be almost as fascinating as the events that preceded it in the trial court."

Historical reflections on the law blogging conference

Unsurprisingly, law bloggers are providing diverse assessments of the law blogger conference at Harvard Law School.  You can check out distinctive accounts from Althouse, Concurring Opinions, Legal Theory Blog and Timothy Armstrong, and decide for yourself who has produced the King James version of the law professor blogging bible.  (The conference papers can still be accessed at this special SSRN page.)

Reflecting on all the blog talk, a (slightly artificial but useful) dichotomy about history captures my sense of the current divide between traditional legal scholarship and blogging.  Orin Kerr in his paper says serious legal scholarship is supposed to be "lasting," but that seems a more fitting account of historical scholarship.  And that leads me to realize the forms and norms of traditional legal scholarship have evolved to a point where law review articles are now much better suited to reflecting on legal history, rather than being suited to helping shape legal history.

This simply dichotomy — between writing that reflects on legal history and writing that seeks to shape legal history — gives me an interesting frame for examining other conference contributions.  Gail Heriot suggests in her paper that bloggers are following in the footsteps of Plubius; obviously, the Federalist Papers were written to shape history, not to simply reflect on it.  Similarly, points made by Randy Barnett, Michael Froomkin, Larry Ribstein, Eugene Volokh, Orin and others about law professors as public intellectuals highlight that most law professors are interested in shaping current legal debates; we generally are not — and should not — be content to just sit on the sidelines writing "serious legal scholarship" that merely records and reflects on legal debates for the ages.

This historical frame on the blog-as-scholarship debate also informs many others' comments, given that, as Winston Churchill famously said, "history is written by the victors."  Tellingly, Paul Butler — the only person of color speaking at the conference — started by saying that blogs "walk up to legal scholarship and slap it in the face."  Traditional legal scholarship has rarely focused on issues of the greatest importance to minorities and the disenfranchised, whose issues are hard to see clearly from the heights of the ivory tower.  Ann Althouse's entire approach to blogging highlights the import and value of shaking up traditional norms of both legal scholarship and the public engagement of law professors.

Stated in extreme terms, traditional legal scholarship is now best suited to reflecting a top-down view of legal history, while law blogs present the possibility of helping to shape legal history from the bottom-up.  (Law professor boggers are, after all, one unit in an Army of Davids.)  Indeed, perhaps this explains Brian Leiter's debatable observation that "that only a miniscule number of first-rate legal scholars in any field actually blog on scholarly topics."  Folks who achieve the most success articulating their own top-down views of legal history may be less inclined to spend time trying to help shape legal history from the bottom-up.  In my view of a perfect scholarly world, law professors should aspire to do both.

Is a prostitute a victim of her madame?

This story from Virginia about the sentencing of a woman who ran an escort service documents the sentencing significance of the question headlining this post:

Barbara Eileen Tanner, 52, owned and operated Exclusively Yours Escorts, which sent 75 call girls to Virginia hotels from 1998 to 2004.... Tanner pleaded guilty Dec. 21 to one count of money-laundering under an agreement with the U.S. attorney....

Tanner's presentencing report, prepared by probation officials, included the women who worked for her as victims.  By including them as victims, the federal sentencing guidelines' recommended sentence was between 41 and 51 months. Without listing those women as victims, the range would have been 24 to 30 months....

Robert E. Battle, Tanner's defense attorney, said the court should not consider the prostitutes as victims because the women were co-conspirators, not victims, and that there was no indication that someone lured them to become prostitutes.  "Most of the women were actually prostitutes before this," Battle said.  "Barbara Tanner did not contact these people. They contacted her."

But the judge and Assistant U.S. Attorney David T. Maguire disagreed, saying that the promise of money for sex was enough to lure the women.  Men who used Tanner's escort service paid $125 per half-hour spent with an escort, or $175 for a full hour.

Interesting capital notes and reading

Thanks to the Death Penalty Information Center and Capital Defense Weekly, I can close out an interesting capital sentencing week (some details here and here) with some links to additional death penalty food for thought.  Because I'm low on energy, I am just going to provide titles with link:

• Nevada Executions -- 11 out 12 Preferred Execution over Appeals

• Harvard Conference To Explore Race and the Death Penalty

• A Matter of Life and Death: The Effect of Life-Without-Parole Statutes on Capital Punishment, an interesting student note in the current Harvard Law Review

Two important reasonableness opinions from the Seventh Circuit

Though I am distracted by other on-going events, I did see two significant reasonableness opinions from the Seventh Circuit today.  Until I have time for broader comment, I'll just post links and the opening paragraphs of these notable decisions:

US v. Lange, No. 05-2787 (7th Cir. Apr. 28, 2006) (available here):

Glenn Lange plead guilty to distributing child pornography.  He claims that he amassed his collection of pornographic photographs because his “Asperger’s-like” disorder made him unable to control his compulsion to do so. He requested a downward departure on the basis of diminished capacity, which the district court denied. After reviewing the sentencing factors in 18 U.S.C. § 3553(a), the district court sentenced Lange to 55 months imprisonment, a sentence within the advisory Guidelines range.  He appeals, claiming that the sentence was unreasonable. For the following reasons, we now affirm.

US v. Baker, No. 05-2499 (7th Cir. Apr. 28, 2006) (available here):

On August 19, 2004, a grand jury sitting in the Central District of Illinois returned a threecount indictment charging John Baker with two counts of distribution of child pornography, see 18 U.S.C. § 2252A(a)(1), and one count of possession of child pornography, see id. § 2252A(5)(B). In compliance with a plea agreement, Mr. Baker pleaded guilty to one count of distributing child pornography in exchange for the dismissal of the remaining counts.  The district court sentenced Mr. Baker to 87 months’ imprisonment, a term below the advisory guidelines range of 108 to 135 months.  The court also imposed a lifetime of supervised release.  The Government now appeals; it submits that the sentence imposed by the district court is unreasonably low. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

Moussaoui case provides fascinating glimpse into capital jury realities

This AP article provides an update on the deliberation of the capital jury in Zacarias Moussaoui's trial:

The judge in Zacarias Moussaoui's death penalty trial admonished jurors Friday to avoid looking up words in the dictionary after learning that one went on the Internet to see what "aggravating" means.  How aggravating and mitigating factors balance out in the jurors' minds is key to their deliberations, which resumed after a daylong break called because one juror was sick....

Deliberations halted briefly Friday after the court learned that a juror had looked up "aggravating" online. U.S. District Judge Leonie Brinkema decided in a closed hearing that the juror's misstep wasn't significant enough to stall deliberations further, but told the jury not to look up words again.

She said the word "essentially means to make something worse" and pointed to jury instructions that define aggravating factors as "factors or circumstances that tend to support the death penalty." Moussaoui, after the hearing and out of the jury's presence, declared loudly, "Moussaoui aggravating curse on America."

If you love blogging about blogging about blogging...

then you will love this post.

I'm done with my panel at this conference at Harvard Law School — entitled "Bloggership: How Blogs Are Transforming Legal Scholarship" — on blogs and legal scholarship.  As is always the case in conferences of this nature, I now feel like I did not have the time to say most of what I wanted to say (and I'm sure even what I said could have been said a lot better).  But, of more lasting import, I can sit in the audience and multi-task, and right now I'm listening to panel two and also checking out who else is commenting on the conference.  Here's what I've found:

• Ann Althouse at Althouse
• Larry Solum at Legal Theory Blog
• Eric Muller at Is That Legal?
• Gordon Smith at Conglomerate

Have I missed anyone?  Needless to say, I see the diversity of perspectives in all these comments — and their Rashomon quality — reinforce some of the points I make in my paper contribution (one of the bunch that can be accessed at this special SSRN page).

Lethal injection litigation developments

Though we'll have to wait a few months for the Supreme Court's decision in the Hill case (background here and here), there are notable developments today in other lethal injection litigation:

• From Missouri, as reported here by Decision of the Day, the Eighth Circuit has returned a lethal injection challenge to the district court for further development of the record.  The decision in Taylor v. Crawford, No. 06-1397 (8th Cir. Apr. 27, 2006) (available here), includes a express mea culpa for the way the Eighth Circuit has handled the litigation.

• From California, as reported here by the media, a "federal judge today agreed to delay until September a hearing on the constitutionality of California's lethal injection procedure.  The hearing had been scheduled for the first week of May, but today, U.S. District Court Judge Jeremy Fogel acceded to the wishes of attorneys for both condemned prisoner Michael Morales and the state of California and agreed to the delay."

Meanwhile, I think the Supreme Court is still facing a lethal injection challenge from Virginia, which as of this writing is scheduled to conduct an execution on this evening at 9pm.

UPDATES:  How Appealing has assembled the local news coverage of these execution litigation delays in California and Missouri.  Meanwhile, as this article details, Virginia went forward with a lethal injection execution last night.

Off to talk about blogging...

This morning I'm off to Boston for this exciting conference at Harvard Law School on blogs and legal scholarship — entitled "Bloggership: How Blogs Are Transforming Legal Scholarship."  The interesting papers for the conference, including my contribution, can be accessed at this special SSRN page. 

Ironically, blogging will be likely be light while I spend time with other law bloggers talking about blogging.  But, as detailed below, the last two weeks have brought plenty of sentencing action to keep everyone busy:

SCOTUS DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• More coverage of the Hill lethal injection argument
• SCOTUS to enter lethal injection scrummages today
• Reports on Marsh re-argument
• Human Rights Watch issues report on lethal injection
• A capital week for SCOTUS arguments
• Reconsidering Roper?

OTHER SCOTUS SENTENCING DEVELOPMENTS AND COMMENTARY

• Thoughtful commentary on Salinas summary reversal
• Commentary on the "good-time" cert. denial
• Notable split habeas ruling from SCOTUS
• Interesting sentencing start to an interesting SCOTUS week
• Recuenco oral argument report
• If a Blakely case is argued in the woods...

BOOKER DEVELOPMENTS AND COMMENTARY

• The Booker horror picture show
• Full draft of Tweaking Booker
• Judge McConnell on "The Booker Mess"
• Pondering the "Booker boomerang"
• Classic reasonableness pair from the Circuits
• Notable Booker rulings in the Fourth and Ninth Circuits

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Another uninspired round of Bush pardons
• Troubling patterns in Bush's pardons
• Fascinating Forbes series on alternatives to prison
• Insightful commentary on state sentencing realities
• Compelling story about state sentencing inequality
• California's sentencing and parole problems

More coverage of the Hill lethal injection argument

I noted here that early press coverage of the oral argument in Hill suggested that a number of Supreme Court Justices were interested in broadly exploring lethal injection protocols and did not confine their questions to the narrow procedural issue raised in the case.  Additional press coverage confirms this story.

For example, Tony Mauro's account of the argument from Legal Times is headlined "Supreme Court Looks at Humaneness of Lethal Injections."  Similarly, Nina Totenberg's story at NPR is titled "Supreme Court Weighs Pain of Deadly Injection."  Additional strong coverage of the Hill argument comes from Charles Lane at the Washington Post and Linda Greenhouse at the New York Times.  The NY Times piece makes this astute observation:

Although the question before the court was the procedural one of how a challenge to lethal injection can be raised by a death row inmate who has exhausted the normal course of appeals, the intense argument showed that it was not easy to separate procedure from substance, at least with phrases like "excruciating pain" hanging in the courtroom air.

Adding an interesting bit of post-argument drama is on-going lethal injection litigation now coming to the Supreme Court from Virginia.  Virginia is scheduled to conduct an execution on Thursday evening at 9pm in a case that has also placed another spotlight on capital clemency (details here and here).

UPDATE:  How APpealling has collected lots of additional coverage of the Hill argument here.

The Booker horror picture show

The First Circuit rendered two interesting little Booker opinions on Wednesday in US v. Jones, No. 05-1541 (1st Cir. Apr. 26, 2006) (available here) and US v. Lizardo, No. 04-1714 (1st Cir. Apr. 26, 2006) (available here).  Because they do not break significant new ground, I was not planning on covering these rulings until this summary of Jones at Appellate Law & Practice got my Booker song parody juices flowing again by highlighting that the Jones opinion describes a Booker pipeline case as falling "into a peculiar time warp."

So, with this inspiration, feel free to sing along: 

It's astounding, appeals are fleeting

Booker takes its toll

But follow closely, for whole a lot longer

Circuits will keep control

______

I remember, doing calculations

Drinking those moments when

Offense levels would hit me, and the grid would be calling

Let's do the guidelines again...

Let's do the guidelines again!

______

It's just a fake to the left

And then a move to the right

With some help from Breyer

they reign discretion in tight

But it's acquitted conduct, that really drives me insane

Let's do the guidelines again!

Thoughtful commentary on Salinas summary reversal

As detailed here and here, Orin Kerr has been doing some commentary — dare I say scholarship — about the Supreme Court's intriguing one-page per curiam summary reversal on Monday in the guidelines sentencing case of Salinas v. United States (noted here).  In the same vein, Peter Goldberger, experienced criminal/appellate practitioner, sent me this thoughtful and extended note about what to make of Salinas:

The per curiam reversal of the 5th Cir in Salinas v US, 547 US -- (No. 05-8400) is illuminating for many reasons.  Salinas was sentenced as a career offender based on two prior robberies.  On appeal the FPD for SDTex argued that the 2 robberies were "related" and so didn't count separately under the career offender guideline. Because this argument had not been made in the district court, the appellant had to show plain error. 

The court of appeals held there was no violation of his substantial rights in any event because he also had a prior drug felony conviction.  The government never made this argument at sentencing or on appeal, and the appellant therefore hadn't addressed it.  The sentencing judge hadn't mentioned it either. (The Fifth Cir went on to make two additional interesting rulings: (1) that there was no plain Booker error, even though the judge expressly said he didn't want to send this defendant to prison, where in any number of other Circuits that would meet the defendant's burden to show plain error; and (2) that a special condition of supervised release that the defendant abstain from all addictive substances was invalid, because it was unreasonable to bar him from smoking cigarettes or drinking coffee during supervision (!).) 142 Fed.Appx. 830 (Aug. 8, 2005).

Salinas petitioned for rehearing, pointing out that his prior drug felony was a simple possession, with no intent to distribute, and therefore didn't fit the definition of a prior "drug trafficking" offense for career offender purposes.  Although he was clearly right, and the court of appeals reaching out with a "bright idea" of its own that was just flat wrong was patently unfair, rehearing was denied. 

Salinas then petitioned for cert on the career offender affirmance, noting that his prior drug felony was for an offense that doesn't count for career offender purposes, as well as raising the circuit split on the standard for plain error under Booker.  In response, the Solicitor General conceded the guideline application error but suggested that cert be denied anyway, relying on the robberies, and saying the plain error split is a short-term problem of diminishing importance.

Notably, the Supreme Court accepted the SG's concession of error but rejected the suggestion that cert be denied, granted the writ and summarily reversed and remanded to the Fifth Cir for further proceedings.  There are several interesting points here.

First, this is what I call a "lightening strikes" decision from the Court -- the kind that encourages me to file a cert petition whenever I think a clear error has been made on appeal in a client's case, even if not evidently "cert-worthy."  You just never know which of the hundreds if not thousands of cases with clear errors the Supreme Court will decide to reach out and fix.  If Salinas, why not my case? Why not yours?  If you don't file a petition, they can't grant your petition. 

And it's noteworthy that the Court took care, in this "little" public defender case from Texas, seemingly involving a drug-abusing robber, to look past the SG's attempt to sweep a small injustice under the rug, and instead to slap down the Fifth Circuit for its unfair and unlawful decision, and send it back to be done right.  (It seems to get more "airplay" when the Court does this to the supposedly "liberal" Ninth Circuit than to the arch-conservative Fifth.)  Shame on the Solicitor General for not recommending a GVR. And shame on the Fifth Circuit for disrespecting the adversary system and thinking they had caught an issue the parties (and lower court) had all missed, and then ruling on that basis without even soliciting the parties' views.

Kudos to the Supreme Court for caring to get it right, yet shame on them, too, for continuing to allow the Booker plain error issue to fester.  It's not going away; there are plenty of cases where defense counsel continue to fail to make appropriate objections to "presumptions of reasonableness" and the like, and continue to focus on the guidelines instead of the other 3553(a) factors, asking instead for a "departure," thereby undermining their clients' chances on appeal. Congrats are due to appellate AFPD's Tim Crooks and Phil Gallagher for fighting for their client to the end.

Reports on Hill lethal injection argument

In pre-argument posts here and here, I pondered whether at oral argument today in the Hill case the Justices would frame the issue as a narrow one concerning litigation procedures or as a broad one concerning lethal injection's basic constitutionality.  Early reports on the argument from the AP and Reuters and the Miami Herald suggest that the lethal injection protocols and their constitutionality was robustly discussed.  The AP headline is "Justices Debate Lethal Injection Method" and the Reuters headline is "US justices query if lethal injections cause pain."  Hmmmm....

California's sentencing and parole problems

A reader thoughtfully pointed me to this recent commentary from the Los Angeles Times by Professors Joan Petersilia and Robert Weisberg entitled "Parole in California: It's a crime."   Here are a few snippets from an interesting read:

California's prison system is reeling. The corrections chief and his acting replacement have both quit in the last two months . But a major cause of the Department of Corrections and Rehabilitation's growing dysfunctionality has nothing to do with how it runs its prisons and administers parole.  Rather, it's the state's laws that determine the lengths of prison terms and inmate-release policies....

[M]any dangerous prisoners on parole receive too little monitoring, are released from parole too early and commit serious new crimes, while many non-dangerous ex-convicts stay on parole too long, wasting the state's resources, and are sent back to prison for trivial reasons.

There are three main reasons for California's high recidivism rate: illconceived sentencing laws, rigid parole practices and an inexcusable neglect of programs to help prisoners adapt to life on the outside....

Given the inefficiencies of how we sentence and imprison our criminals, the wonder is that our inmate population and prison costs aren't greater.  But there's no denying that our high recidivism rate wastes human opportunity and disrupts family life in unquantifiable ways.  New leadership at the Department of Corrections and Rehabilitation will help some.  Reforming the state's determinate sentencing law will do even more.

Classic reasonableness pair from the Circuits

With the Supreme Court keeping me busy lately (basics here and here and here), I have not had much time to focus on the continuing stream of Booker and guidelines rulings from the circuit courts.  Moreover, lately there have not been many notable rulings (as there were earlier in April from the 1st, 2d, 4th, 7th and 9th).  But today I see two interesting examples of reasonableness review that seem worth a quick mention.

In both US v. Cadenas, No. 05-1450 (8th Cir. Apr. 26, 2006) (available here) and US v. Thomas, No. 05-14151 (11th Cir. Apr. 26, 2006) (available here), defendants present some viable facts and arguments in support of their claims that a within-guideline sentence was unreasonable.  And in both cases, the panel rejects these claims fairly readily by suggesting that the defendants' claims might have justified a lower sentence, but do not support a finding that the district court's decision to impose a within-guideline sentence was unreasonable.

Taking stock, a full 15+ months since Booker, there have been roughly 50,000 within-guideline sentences imposed, and only one within-guideline sentences has been found unreasonable on appeal (though, of course, probably no more than a (few?) thousand of these within-guideline sentences have been formally reviewed on appeal).

Two interesting and intricate Ninth Circuit rulings

Though not dealing directly with sentencing issues, two criminal law decisions today from the Ninth Circuit caught my eye. Folks interested in a range of federal criminal justice issues may want to check out US v. Arreola, No. 04-10504 (9th Cir. Apr. 26, 2006) (available here) (discussing whether the language of 924(c)(1)(A) "defines two offenses or two means of committing a single offense"), and US v. Rosenthal, No. 03-10307 (9th Cir. Apr. 26, 2006) (available here) (discussing various issues in the course of reversing a conviction based on juror misconduct in a medical marijuana prosecution from California).

SCOTUS to enter lethal injection scrummages today

As briefly noted in this post, the Supreme Court hears oral argument today in the lethal injection case of Hill v. McDonough (some background here and here).  As I explained here right after the cert grant, the narrow procedural issue in Hill arguably is not that important (especially if a majority of the Court is prepared to declare most lethal injection protocols constitutional).  But because the Hill cert. grant has already had a ripple effect on lethal injection litigation throughout the country, the stakes in Hill have practically become much higher no matter how the Court decides to approach this case.

The folks at SCOTUSblog have a nice review of the legal issues in Hill, and TalkLeft provides here another blog perspective.  In addition, the media is all over this case with coverage from the Washington Post, AP, Knight Ridder, USAToday, the Christian Science Monitor and many others.  The New York Times adds this editorial entitled "Lethal Cruelty."

I have been following this issue closely, in part because I see Hill and its remarkable aftermath (halted executions in some states but not in others) as exhibit A in the dysfunctionality of litigation over capital punishment.  Here's just an abridged list of recent posts on this topic (from earliest to most recent):

HILL COVERAGE

• Florida Supreme Court rejects challenge to lethal injection
• What's SCOTUS doing in the Hill case?
• Does the SCOTUS cert. grant create a de facto moratorium?
• A cruel and too usual jurisprudence?
• How will the Hill case impact execution plans?
• Human Rights Watch issues report on lethal injection

THE IMPACT IN OTHER CASES

• More lethal injection scrummages
• The Morales mess and lethal injection scrummages continue
• Federal executions stayed due to lethal injection concerns
• Reviewing the lethal injection scrummages
• The latest rounds in the lethal injection scrums
• Executions on track for NC and Virginia

Lots of good (non-Booker) reading

Earlier this week, I noted my article "Tweaking Booker" and Judge McConnell's article "The Booker Mess."  But if you are not in a Booker mood, there's plenty of other interesting reading now on-line:

1.  The latest issue of the Ohio State Journal of Criminal Law, which includes a wonderful symposium on juvenile brain development and criminal justice and commentaries on a range of topics, is now fully available on-line here.

2.  As I have noted before, all the papers authored for the up-coming Harvard Law School conference on blogs and legal scholarship — entitled "Bloggership: How Blogs Are Transforming Legal Scholarship"  — can now be accessed at this special SSRN page.

3.  Speaking of SSRN, these recently-posted sentencing papers caught my eye:

• Killing in Good Conscience: Comments on Sunstein and Vermeule's Lesser Evil Argument for Capital Punishment and other Human Rights Violations by Eric D. Blumenson

• From the Frying Pan into the Fire: How Poor Women of Color and Children are Affected by the Sentencing Guidelines & Mandatory Minimums by Nekima Levy-Pounds

Commentary on the "good-time" cert. denial

As briefly noted in this post, on Monday the Supreme Court denied cert in two cases concerning the calculation of good-time credits for prisoners serving federal sentences.  A thoughtful reader sent me these follow-up thoughts to ensure the issue, and Justice Stevens' interesting comments on the issue, gets appropriate attention:

Justice Stevens issued this unusual statement "respecting the denial of the petitions for certiorari" in Moreland v. Bureau of Prisons, 05-8262 and O'Donald v. Johns, 95-8504. These cases raised the question whether the Bureau of Prisons has been misinterpreting 18 U.S.C. § 3624(b), the federal good time statute by reading the statutory allotment of 54 days' credit for each year of the "term of imprisonment" to mean 54 days for each year actually served, rather than for each year of the sentence imposed.  Justice Stevens indicated his own view that the district court in Moreland, later overturned by the Fifth Circuit, had demonstrated that the text and history of the statute strongly suggested that it had not been intended to alter the long-standing approach of basing sentencing credits on the "sentence imposed" as the petitioners contended.

Justice Stevens' statement is interesting in more respects than its brevity might suggest. First, it is the second example in the same day, along with the Court's summary reversal of a pure Guidelines issue in Salinas, of the Court's interest in a non-death penalty sentencing issue.  Second, although the issue involves a difference of only about seven days a year incarceration for eligible prisoners, Justice Stevens noted its "great importance" and its "significant impact on the public fisc," given the number of prisoners (about 170,000) eligible for the credit. Third, however, the statement reconfirms that absent a classic circuit split (or a confession of error by the SG as in Salinas), even an issue of clear, nationwide significance is a hard sell on certiorari.

Given the absence of a circuit split, however, Justice Stevens’ statement is perhaps most interesting for its suggestion that the question "merit[s] further study," either by "judges" or by "other Government officials" or by Congress, as well as by its pointed reminder that the cert. denials were not rulings on the merits and "certainly" did not express any opinion of the "wisdom" of the Government's position.  These observations seem a pointed indication that, in the Justice's view at least, the question is not finally resolved and may well be subject to reconsideration in judicial, administrative or Congressional forums.

Reports on Marsh re-argument

As discussed recently in this post, the Supreme Court this afternoon heard re-argument in the capital case of Kansas v. Marsh (some background here and here and here).  According to this early press report, it was a "deja-vu" experience with a twist:

The high court first heard the case last December, when Sandra Day O'Connor was still on the bench. Last month, the court asked for re-arguments, an unusual step that indicated to some court observers that the court was deadlocked 4-4, and that the newest justice, Samuel Alito, could be the tiebreaker.

Even though the arguments were essentially the same as they were four months ago, several justices seemed engaged by the debate.  Seatmates David Souter and Antonin Scalia took several minutes to essentially argue with each other through aggressive questioning of [the Kansas AG].... Later at a press conference on the court’s front steps, Kline joked about the Scalia-Souter interchange: "I almost sat down."

Alito, who could be the swing vote, was quiet through much of the argument, his elbow propped on the dais and his hand on his chin as he listened to his colleagues question [the counsel for the parties].

I assume the description here of Justices David Souter and Antonin Scalia as "seatmates" is a reference to them sitting near one another, not an indication that they decided to share a single seat for this re-argument.  (Though perhaps one of their chairs was taken out to be cleaned before anyone remembered that a re-argument had been scheduled for this afternoon.)

UPDATE: Here is an AP report on the Marsh arguments today.  And now also this CNN account.

MORE: Dahlia Lithwick has this great Marsh argument review at Slate.

STILL MORE:  How Appealing has assembled local coverage of the Marsh argument here.

Notable split habeas ruling from SCOTUS

As reported here by SCOTUSblog, this morning the Supreme Court, dividing 5-4 in Day v. McDonough (04-1324), ruled "that federal trial judges have discretion to dismiss a prisoner's habeas petition as too late, even though a state had conceded erroneously that the petition had been filed on time. The Court, in an opinion by Justice Ruth Bader Ginsburg, said the Court would not choose an inflexible rule that dismissal would be required whenever the one-year filing deadline had expired." 

I may not get a chance to weigh in on the merits of this ruling for a while, but here I must note that the supposed new harmony/consensus exhibited by the Roberts Court in other areas has not generally extended to cases involving criminal justice issues.  I think most (all?) of the 5-4 votes have come in criminal justice cases this Term, and all three cases ordered to be re-argued involve criminal justice or related issues.

UPDATE: The AP has this report on the day ruling, which notes the the decision broke the Justices "into unusual alliances."  Howard Bashman has all the details here:

Justice Ruth Bader Ginsburg delivered the opinion of the Court in Day v. McDonough, No. 04-1324. This is the first 5-4 decision of the newly constituted Court, and the line-up of the Justices is rather interesting. Joining in Justice Ginsburg's majority opinion were the Chief Justice, and Justices Anthony M. Kennedy, David H. Souter, and Alito. Justice John Paul Stevens issued a dissenting opinion, in which Justice Stephen G. Breyer joined. And Justice Antonin Scalia issued a dissenting opinion, in which Justices Clarence Thomas and Breyer joined.

Pondering the "Booker boomerang"

I recently received news from a federal defense attorney reporting on a drug case in which a higher sentence was imposed on his client after a Booker remand.  In his words, "Booker seems to be having a big negative boomerang effect on defendants fortunate enough to get the Booker remand." 

More evidence of this phenomenon comes from this notable article about a Booker resentencing in a high-profile corporate fraud case: "Former Westar Energy executive David Wittig was resentenced Monday to 60 months in prison in a 2003 bank fraud case, nine months more than his original sentence in the matter."   (As explained in the article and posts here and here, Westar executives have made a lot of sentencing news.)

These reports have me wondering yet again about whether the US Sentencing Commission is trying to track and assess all the Booker pipeline cases as they slowly work through the system.  Notably, Judge McConnell's recent Booker article (discussed here) has some fascinating statistics about Booker pipeline cases in the Tenth Circuit, and I sincerely hope folks at the USSC and elsewhere are trying to assemble and analyze this data throughout the nation.

I question whether there truly has been a "big negative boomerang effect on defendants" nationwide from Booker remands, though maybe this is true for certain types of cases or in certain regions (especially since the plain-error remand rules varied from circuit to circuit).  Of course, these issues are not only important on their own terms, but they can inform what we should expect if any other big sentencing changes from Congress or the Supreme Court create another set of sentencing pipeline problems.

Around the blogosphere

A diverse array of items caught my eye this morning in a quick jaunt around the blogosphere:

• At ACSBlog, Alex has this thoughtful post suggesting reasons why SL&P is "cited far more frequently in court opinions than any other legal blog."  I think the analysis is spot-on, though it fails to mention that I have the best and coolest readership (which I am always eager to compliment).

• At Capital Defense Weekly, Karl Keys notes here that this week is National Crime Victims' Rights Week, and he points to a joint statement that has victims speaking out against the death penalty.

• At Judging Crimes, Joel Jacobsen has this post noting the impact of the Supreme Court on state criminal prosecution and lamenting that "the justices don't know much about criminal law, and even less about its day-to-day practice."  He concludes that "it's almost - almost! - unfair to criticize the justices for screwing up the criminal law."

• Orin Kerr has this thoughtful discussion of the Supreme Court's (very) little reversal in the Salinas guideline case (previously discussed here).

• Both Grits for Breakfast and TalkLeft comment on the remarkable disparity in two Texas sentencing cases detailed in a recent Dallas Morning News article (discussed here).

Pre-sentencing skirmish in Connecticut

This news story from Connecticut reports on an interesting skirmish between defense counsel and federal prosecutors in the run up to a high-profile fraud sentencing scheduled for this week:

Lawyers for former construction executive William A. Tomasso accused the U.S. attorney's office Monday of unnecessarily making public disputed evidence in an effort to pressure a judge to impose harsh sentences on two key figures in the Rowland administration bid-rigging case.  The last-minute legal papers filed Monday afternoon by Tomasso lawyers Thomas J. Murphy and James T. Cowdery are critical of tactics used by federal prosecutors in the days leading to today's scheduled sentencing of Tomasso and Peter N. Ellef, former Gov. John G. Rowland's co-chief of staff, for bribery and tax fraud.

Additional background on this case can be found in articles from the New York Times and the AP.

UPDATE: This AP story now tells the rest of the story:

A federal judge has sentenced a former top aide to Governor Rowland and a contractor who bribed him to two and a-half years in prison for corruption.... Judge Peter Dorsey gave credit to Ellef for his military service and civic works.  But he also said he must impose a sentence that makes it clear that people in power have to be totally honest when acting for the community. Tomasso was sentenced early this afternoon and was given the exact same sentence [as] Ellef, [includings] three years probation and a $15,000 fine.

Full draft of Tweaking Booker

The terrific editors of the Houston Law Review have just sent me a clean copy of the latest proofs of my article on post-Booker federal sentencing entitled "Tweaking Booker: Advisory Guidelines in the Federal System." The piece, which can be downloaded below, perhaps serves as a fitting companion to Judge McConnell's recent article "The Booker Mess" (discussed here) for anyone trying to get up-to-speed on the post-Booker federal sentencing world.  Here is a snippet from my introduction:

If writing on a blank slate, few would likely advocate the precise sentencing system resulting from the Supreme Court's decision in Booker.  Nevertheless, in this Article, I contend that policymakers should consider playing the peculiar Booker hand that the Court has dealt for federal sentencing. Especially because any significant alteration of the structure of federal sentencing remains legally treacherous and fraught with uncertainty, Congress and the U.S. Sentencing Commission should focus their efforts and energies on improving the advisory guideline system that Booker has produced.  I suggest that, though the sentencing scheme created by Booker is far from perfect, a program of modulated incremental changes is likely to provide the soundest course for the post-Booker development of the federal sentencing system.

Download tweaking_booker_final_draft.pdf

Fourth Circuit on reasonableness review and fast-track

The Fourth Circuit today in US v. Montes-Pineda, No. 054471 (4th Cir. Apr. 24, 2006) (available here), explains in some detail why it has jurisdiction over appeals by defendants of sentences imposed after Booker that are within a properly-calculated guideline range.  This is in line with every other circuit to consider the issues, and it also continue the appellate harmony by once affirming a within-guideline sentence as reasonable.

Along the way, the panel in Montes-Pineda not only discusses reasonableness review, but also speaks to "fast-track" disparity.  Interestingly, the panel asserts flatly that the defendant "has convincingly demonstrated that significant sentencing disparities exist between 'fast track' and non-'fast track' districts."  But the panel then explain that this showing does not itself make the defendant's within-guideline sentence unreasonable.

The Ninth Circuit on supervised release and Blakey-Booker

The Ninth Circuit today gives some extended treatment to the relationship between supervised release and the Blakely line of cases in US v. Huerta-Pimentel, No. 04-50037 (9th Cir. Apr. 24, 2006) (available here).  Here are the basics:

We conclude § 3583 supervised release is constitutional under Apprendi, Blakely, and Booker. Because supervised release is imposed as part of the sentence authorized by the fact of conviction and requires no judicial fact-finding, it does not violate the Sixth Amendment principles recognized by Apprendi and Blakely.  For the same reasons, a district court's decision to revoke supervised release and impose associated penalties is also constitutional.  Additionally, because the revocation of supervised release and imposition of an additional term of imprisonment is discretionary, neither violates Booker.  Accordingly, we affirm.

Two significant Blakely rulings from Colorado

Thanks to a helpful reader tip, I learned that today the Colorado Supreme Court issued two significant Blakely ruling dealing with (1) the prior conviction exception, and (2) proper Blakely admissions. Here are the basics:

• People v. Huber, No. 05SC40 (Colo. Apr. 24, 2006) (available here) ("Trial court did not violate Defendant's Blakely rights by sentencing him in the aggravated range based on prior conviction facts.")

• People v. Isaacks, No. 05SC87 (Colo. Apr. 24, 2006) (available here) ("The Supreme Court affirms the court of appeals, holding that a defendant's failure to make corrections or additions to his presentence report when asked by the court does not constitute an admission that supports aggravated sentencing under Blakely and Lopez unless the defendant knowingly, voluntarily, and intelligently waives his right to jury trial on the facts contained in the presentence report.")

Judge McConnell on "The Booker Mess"

Thanks to a tip from a helpful reader, I see here that Tenth Circuit Judge Michael W. McConnell has authored the Foreword to the latest issue of the Denver University Law Review on a topic dear to my heart.  Judge McConnell's article is entitled "The Booker Mess," and the full cite for the article, is 83 Denv. U. L. Rev. 665 (2006).  The article, which is available at this link, discusses the data on post-Booker reversal rates and sentencing trends.  After a quote from the Disney movie version of the Pirates of the Caribbean: The Curse of the Black Pearl, the article starts with this paragraph:

Each year, over 65,000 criminal defendants are sentenced in the federal courts; about 1,200 are sentenced each week.  Since 1984, Congress has required sentences to be determined according to a strict and detailed set of Sentencing Guidelines.  On January 12, 2005, in United States v. Booker, the Supreme Court declared this sentencing system unconstitutional.  The Justices left many questions unanswered regarding how the lower courts should treat defendants sentenced under the prior regime and how to sentence defendants in the future.  These issues occupied much of the attention of federal courts during 2005.  The Tenth Circuit alone rendered two en banc decisions and some 226 panel decisions (as of this writing), addressing how to deal with defendants who were sentenced before Booker was decided.  Nationwide, this retrospective question produced a four-way circuit split and literally thousands of panel decisions.  And it will require many more decisions to figure out how to apply Booker moving forward.

And Judge McConnell's article closes with these sentiments:

I am inclined to think that a modest increase in the discretion of district judges, exercised judiciously, could enhance justice.  In this sense, I welcome the Booker result, even though I cannot endorse its reasoning.  But it was more important to take a serious look at the statutes governing sentencing.  This is a matter for Congress.  I fear that Booker, by putting forward an extravagant claim of constitutional principles coupled with an anemic and self-contradictory remedy, may have set back the cause of reform, to relatively little purpose.

Interesting sentencing start to an interesting SCOTUS week

Though a big death penalty week is on tap for the Supreme Court (details here), today SCOTUS got the week started with these interesting non-capital sentencing developments:

1.  The Recuenco dog did not DIG bark: After a seemingly off-topic and unexciting oral argument in Washington v. Recuenco last week, there was added speculation that the Supreme Court might DIG the case (meaning Dismiss cert as Improvidently Granted).  But this report from SCOTUSblog on today's work by the High Court makes no mention of any DIG.

2.  No cert grants on interesting sentencing issues:  As also reported by SCOTUSblog, the Court "turned aside an appeal by the state of Minnesota, seeking to test whether the Court's 2004 decision in Blakely v. Washington restricts judges' power to impose longer criminal sentences based on judge-made findings of fact about the crime, but not facts about the perpetrator."  This case was Minnesota v. Allen, which I covered a lot here and here.  Also, according to SCOTUSblog, the Court "declined to hear two appeals on an issue involving the basis for calculating good-time credits for prisoners serving federal sentences," although "Justice John Paul Stevens filed an opinion discussing the issue" in Moreland v. Federal BOP (available here).  I'll discuss this matter more once I see the Stevens opinion.

3.  A (pro-defendant) summary reversal on a guideline drug sentencing issue:  As also reported by SCOTUSblog, the Court in Salinas v. US, No. 05-8400 (S. Ct. Apr. 24, 2006) (available here), "ordered the Fifth Circuit Court to take a new look at a case on simple possession of an illegal drug," although this followed the Solicitor General conceding that the Fifth Circuit had erred in determining what is a "controlled substance offense" for purposes of the Sentencing Guidelines.  I'll also comment more on this ruling once I see a copy of the Court's opinion.

UPDATE:  There is not much there there in either the one-page Salinas runing or in the two-page Moreland statement by Justice Stevens, although that Justice Stevens does shine light on the importance of the good-time credit issue.

Human Rights Watch issues report on lethal injection

Just in time for a big Supreme Court death penalty week (details here), the public policy group Human Rights Watch has released a 65-page report, entitled "So Long as They Die: Lethal Injections in the United States."  HRW has this press release about the report, which declares that "incompetence, negligence, and irresponsibility by U.S. states put condemned prisoners at needless risk of excruciating pain during lethal injection executions."  The full report is available here, and related work by HRW on the death penalty can be found on this page.

As I have bemoaned here and here, everyone loves to focus on the death penalty, and thus the HRW report has already received coverage from Reuters and the Los Angeles Times.  The LA Times article is particularly thoughtful; it places the HRW report in the context of all the recent lethal injection litigation.

Some recent related posts:

• North Carolina conducts execution with brain monitor
• Missouri lethal injection litigation update
• Executions on track for NC and Virginia
• The latest rounds in the lethal injection scrums

A capital week for SCOTUS arguments

I noted here last week that the last set of Supreme Court oral arguments this Term included a number of criminal justice issues.  And though last week's argument in Washington v. Recuenco  were perhaps unexciting and received no press coverage, this coming week should keep sentencing fans satiated. 

Specifically, on tap for this week is the re-argument in the capital case of Kansas v. Marsh (some background here and here and here) and oral argument in the lethal injection case of Hill v. McDonough (some background here and here).  Both should be quite interesting for different reasons.

Though I am not a SCOTUS guru, I assume most re-arguments have advocacy styled for the new voter, which is of course Justice Alito.  Since his Third Circuit track record suggests Justice Alito is generally a pro-death-penalty vote, I am eager to see how the state and the defense in Marsh approach re-argument in the case.

The story in Hill concerns whether at argument the case will be framed as a narrow one concerning litigation procedures or a broad one concerning lethal injection's basic constitutionality.  As I explained here right after the cert grant, the narrow procedural issue in Hill seems relatively trivial if a majority of the Court views most lethal injection protocols as constitutional.  But, perhaps we will learn at oral argument that some members of the Court view the stakes in Hill to be much higher. 

More background on Hill and the stakes involved can be found in this AP story and this local news account.  And, to add an extra bit of intrigue, this article details that Virginia is scheduled to execute an inmate by lethal injection the day after Hill is argued.

UPDATE: The Christian Science Monitor has this nice review of the Marsh case, which spotlights that the "rescheduling of the case suggests that the justices were sharply divided over the issue and that Justice Alito may be in a position to cast the deciding vote."  And local press coverage of Marsh can be found here and here.

The relatively small (and large) cost of federal prisons

With thanks to Paul Caron for the tip, I checked out the interesting web site, Where Are My Taxes, where you can enter an amount paid in federal taxes and see where tax dollars go among dozens of federal agencies, departments, and programs. 

The first thing you discover is that the bulk of federal tax dollars go to the Department of Defense, the Department of Health and Human Services, the Department of the Treasury, and the Social Security Administration.  Each of these departments receive at least 100 times more federal tax dollars than the entire (huge) federal prison system.  These data highlight why prison cost concerns will never impact the federal criminal justice system (as it does in the states as recently documented here and here).

But perhaps equally interesting and telling is relative criminal justice spending in the federal system.  According to the site, the federal government spends more than five times as much on prisons as it spends on a crime victims fund, and nearly 10 times as much on prisons as it spends on juvenile justice programs and violence against women prevention.  Our tax dollars at work.

Interesting SSRN case-study on quantity and quality

I am having a grand time this weekend reading the papers for this conference at Harvard Law School on blogs and legal scholarship, which can be accessed at this special SSRN page.  Anyone interested in the activities of law professors or the medium of blogging will find lots of food for thought in the papers.

But one can also find food for thought on this special SSRN page without downloading any papers.  A quick scan of the page (as of mid-day Sunday, April 23, 2006) shows remarkable differences in the number of downloads for posted drafts.  The paper by Glenn Reynolds already has nearly 300 downloads and Ann Althouse's paper has over 100, while most other papers have between 20 and 50 downloads.  Also Orin Kerr's paper, which was posted well before everyone else's, right now has 161 downloads.  Eugene Volokh's paper, which was the last to be posted, right now has only 18. 

I spotlight these realities not only to establish an interesting data point for future comparisons, but also because I am concerned by a recent movement to focus on the quantity of SSRN downloads as a possible measure of a paper's quality.  With all due respect to Glenn and Ann and Orin, I do not think their papers are so obviously far superior than all the other contributions.  But, based on download numbers right now, Orin's work exceeds the work of his co-blogger Eugene by nearly a magnitude of 10.

Compelling story about state sentencing inequality

The Dallas Morning News today has this interesting piece entitled "Unequal Justice: Two very different men commit two very different crimes. When both violate probation, there are wildly different results: The robber gets life; the killer remains free."  The article provides an in-depth account about how two offenders have been treated in Texas' criminal punishment system.  One quote in the article sums up my reaction: "This certainly undermines one's confidence in the judicial system around here," said Rick Jordan.

The links between sentencing and plea/trial rates

This interesting news story from upstate New York concerning an upcoming federal trial on child pornography charges highlights the links between sentencing issues and trial/plea practices.  Though the article is mostly about the prosecution of child pornography cases, it also provide a window into sentencing and trial/plea issues:

Federal judges in Rochester say they've never had a child porn case go to trial in the past 20-plus years.  Authorities say they expect to see more in the future because of the spread of child pornography over the Internet and because moves to toughen sentences for the crime may discourage defendants from taking a plea....

Court records show that [the defendant] was offered plea bargains — the typical resolution to child pornography charges — but he insisted that he be tried instead....

Federal authorities say recent congressional moves to stiffen sentences for child pornography may prompt more defendants to choose trials.  In 2003, for instance, Congress passed the Protect Act, designed to strengthen the protection of children and to toughen the punishment for those who molest children or view child pornography.

"There's not much of an advantage to pleading guilty these days because the (sentencing) guidelines are so high," said Albany-based Assistant U.S. Attorney Thomas Spina.  He said he has prosecuted federal child pornography cases for 15 years and has never had one go to trial.