Sentencing Law and Policy

What's going on behind closed doors at the US Sentencing Commission?

Academics and federal defenders have long complained that the US Sentencing Commission often deliberates in secret and that its notice-and-comment amendment process is ineffective.  Prosecutors, understandably, have not complained because the Justice Department has an ex officio representative on the USSC, and nearly all guideline amendments increase sentences.

Right after Blakely and Booker, it seemed the USSC was striving for a more transparent and deliberative decision-making process.  But, sadly, lately there has been very little public information about the USSC's recent (lack of) work on crack sentencing and other pressing post-Booker issues (complaints here and here and here).

Intriguingly, the USSC now has posted this meeting notice on its website, which indicates that the USSC will be voting on an "Emergency Amendment on Intellectual Property" and on the "Promulgation of Commentary Amendments."  Disappointingly, to my knowledge, the scope, terms and language of these amendments have never been publicly discussed and there has not been any form of notice-and-comment process.  Indeed, it is not clear how someone can even find out whether the "Commentary Amendments" are about Booker or some other topic.  Inquiring minds (and bloggers) want to know.

As detailed here, the USSC had six public hearings in the period after Blakely and Booker. But the USSC has not had an official public hearing on any topic in the nearly six months since it released its "year after Booker" report back in March.  And though the USSC has continued to generate useful post-Booker (and pre-Booker) data, these coming votes suggest that (perhaps a lot of) other federal sentencing work has been afoot. 

So, to rephrase the title of this post, I cannot help but wonder what's going on behind closed doors at the US Sentencing Commission.

New supplement for Sentencing Law and Policy casebook available

As detailed in this post, a few weeks after Booker was handed down, my casebook co-authors Nora Demleitner, Marc Miller and Ron Wright and I were able to finish a 100-page Blakely/Booker special supplement to our main text Sentencing Law and Policy: Cases, Statutes and Guidelines.  (That special supplement, which remains a useful resource for teaching just Blakely and Booker, can still be accessed at this link.) 

But, for the broader stories of Blakely and Booker as a new year gets underway, I am proud to be able to share on-line a new supplement with es additional materials for all the chapters of the Sentencing Law and Policy casebook.  You can download this 2006-2007 supplement (in pdf form) at this link, and it will soon be available at this website supporting our sentencing text.  A second edition of the original casebook is in the works, and should be completed in the first half of 2007.

Another strong Blakely opinion from Alaska

The story of Blakely in the states, which has been relatively calm of late, will really start heating up in the Fall when the Supreme Court two big state Blakely cases.  Usefully, Alaska continues to do great Blakely work in the interim.

On Friday, the state Court of Appeals issued Cleveland v. Alaska, No. A-9054 (Alaska Ct. App. Aug. 25, 2006) (available here), which holds that the existence of a single Blakely-compliant or Blakely-exempt aggravating factor is enough to authorize a judge to exceed the presumptive term and go all the way up to the maximum term, and that it is permissible for a judge to then find other aggravating factors under a lesser burden of proof than beyond a reasonable doubt.   As the helpful reader noted when sending me a link to this opinion, "Judge Mannheimer's decision contained an interesting explanation of the differences between the effect of aggravators in the Washington sentencing scheme at issue in Blakely and the effect of aggravators under Alaska's presumptive sentencing scheme."

Related posts discussing great Alaska Blakely opinions:

• All hail the Blakely Frontier
• Great Alaska opinion on Blakely and consecutive sentencing
• Alaska on Blakely's applicability to juvenile transfer
• Recent Alaska Blakely decisions

Missouri considering use of gas chamber

Missouri now has a de facto moratorium on executions because a federal district judge has to date refused to approve its revised lethal injection protocol.  Consequently, as this article details, some state officials are talking about using the gas chamber for executions:

In June, a judge halted all executions in Missouri, saying the process is flawed. Now, politicians are exploring other execution options, including bringing back the gas chamber.  In 1965, Lloyd Leo Anderson became the last person to die in Missouri's gas chamber.  That building still stands, old and unused. The law that allows it still exists too, largely forgotten until now.

Several state senators, including one in Kansas City and another in St. Louis, have begun investigating the possibility of resurrecting the gas chamber as a way to circumvent U.S. District Judge Fernando Gaitan Jr.'s ruling that has all executions on hold. Gaitan is requiring that the process of lethal injection be revised. He is requiring an anesthesiologist supervise. So far none has been willing. With no way for the state to comply, legislators are now pursuing other possibilities.

Ninth Circuit clarifies en banc reasonableness issues

As noted here, Ninth Circuit on Wednesday granting rehearing en banc in two cases addressing reasonableness review after Booker.  Today, as already noted by Howard Bashman and Eugene Volokh, the Ninth Circuit released this lengthy order detailing all the issues the en banc court seeks to explore and welcoming amicus briefs on these issues.

By my rough count, the Ninth Circuit's order lists 20 questions for the parties and amici to try to help the Ninth Circuit answer.  To officially play this game of Booker 20 questions, briefs need to be submitted by September 15.  I wonder if the Ninth Circuit would allow me to just submit a print out of these reasonableness posts and writings:

• The central flaw in reasonableness review
• Crack reasonableness review should be as easy as 1, 2, 3
• When and how should SCOTUS take up reasonableness review?
• Tracking reasonableness review outcomes ... final update?
• YLJ Pocket Part review of appellate review after Booker
• My YLJ Pocket Part article is entitled "Reasoning Through Reasonableness"
• My recent "Conceptualizing Booker" article

UPDATE: A commentator here over at The Volokh Conspiracy reacts to the Ninth Circuit's order by saying it "has definite legal implications and is quite shocking."  If my readers agree, please explain in the comments.

Still more mitigating factors

Attorney Michael Levine has long assembled mitigating factors developed in the federal guideline system in a terrific mega-resource that, pre-Booker, had been entitled "88 Easy Departures."  As detailed in posts here and here and here, the post-Booker updated version of this resource continues to grow, and it is now called "138 Easy Mitigating Factors."  Michael has sent me for posting the latest table of contents (available below), with the explanation that he is "now charging  $100 for the latest montly update; and $350 for an annual subscription."  Michael can be reach via this link.

Download 138_mitigators_toc_sept_1_2006.doc

Maryland governor taking clemency responsibility seriously

This morning's Washington Post has this front-page article about Maryland Governor Robert Ehrlich's "unusually active" use of executive clemency powers.  Here are some details (to go along with the few stats to be found in the chart to the left):

Since taking office in 2003, Ehrlich (R) has granted clemency to 190 former convicts, reversing a two-decade trend among state and national chief executives, who have largely shelved their power to issue pardons.  Many of his peers consider the practice politically risky, but Ehrlich said he considers it part of his constitutional duty.

He has invoked his authority to clean the slate most often for those who have, in the aftermath of a youthful indiscretion, lived exemplary lives.... But the governor has also tackled cases that his predecessor wouldn't touch: a backlog of clemency appeals from lifers who had convinced state parole officials that they were ready to be released. "You have these situations where race may have played a part, insufficient counsel may have played a part, where the shooter is out and the accomplice is still in," Ehrlich said. "Those needed to be addressed."

His pardons touched people across the state and across party lines. Ehrlich's political advisers cringed when he began holding monthly meetings to review pardon applications, but, he said, his law school training and his marriage to a public defender instilled in him a sense of duty. "This is what governors do," Ehrlich said. "Criminal justice is something I'm trained in, and I believe in it. But I know at times the system doesn't work even though there are a lot of safeguards."...

More notable Booker work from the Sixth Circuit

Continuing its recent strong post-Booker work on reasonableness review, the Sixth Circuit issued a thoughtful little opinion in US v. Cruz, No. 05-6746 (6th Cir. Aug. 25, 2006) (available here).  The highlights of Cruz are captured in this final substantive paragraph:

On this record, the district court's use of the word "reasonable" in describing the sentence he wished to impose did not eclipse his thorough application of the § 3553(a) factors and his exercise of independent judgment. While we agree with the defendant that the district court should have described its duty as imposing "a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2)," 18 U.S.C. § 3553(a), we cannot agree with him that the court's reference to imposing a "reasonable" sentence under the § 3553(a) factors, as opposed to say an "appropriate," "sensible," or "fair" sentence under those factors, warrants a third sentencing hearing.  As Davis makes clear, a trial court's invocation of the word "reasonable" does not invariably plant the seeds of reversible error, and in this instance any error in describing the sentencing process in this way was harmless.

Disappointingly, yesterday in US v. Gates, No. 05-181 (6th Cir. Aug. 24, 2006) (available here) a different Sixth Circuit panel was not quite as nuanced in its approach to burdens of proof after Booker.  In Gates, the Sixth Circuit relies on pre-Blakely and pre-Booker authorities to declare that "judicial fact-finding in sentencing proceedings using a preponderance of the evidence standard post- Booker does not violate either Fifth Amendment due process rights, or the Sixth Amendment right to trial by jury."  (As noted here are here, the Third Circuit is giving en banc attention to this issue.)

ABA's Criminal Justice sentencing symposium

I just discovered that the Summer 2005 issue of the Criminal Justice magazine, which is published quarterly by the Criminal Justice Section of the ABA, has a set of interesting articles as part of a sentencing symposium issue.  The full contents, and links to all the articles, are available here.  Here are some highlights:

• Introduction to Sentencing Symposium by Andrew Taslitz

• Federal or State? Sorting as a Sentencing Choice by Ronald F. Wright

• Negotiating Federal Plea Agreements Post-Booker: Same as it ever was? by Barry Boss & Nicole L. Angarella

Meth offender registries all the rage

This week, USA Today has run some interesting articles on the latest criminal justices fad: meth-offender registries. This article provides some background:

States frustrated with the growth of toxic methamphetamine labs are creating Internet registries to publicize the names of people convicted of making or selling meth, the cheap and highly addictive stimulant plaguing communities across the nation.  The registries — similar to the sex-offender registries operated by every state — have been approved within the past 18 months in Tennessee, Minnesota and Illinois.  Montana has listed those convicted of running illegal drug labs on its Internet registry of sexual and violent offenders since 2003.  Meth-offender registries are being considered in Georgia, Maine, Oklahoma, Oregon, Washington state and West Virginia.

This article provides some details about the development of a meth offender registry in Illinois:

In January, Illinois will become the fourth state to offer a searchable Internet database of convicted meth manufacturers, dealers and traffickers as part of an effort to crack down on meth labs, which have polluted communities across the state.  [O]fficials say the database will allow landlords, real estate agents and neighborhood residents to check for meth offenders.

A postscript to the Demaree ruling

I consider the Seventh Circuit's ruling in Demaree — which says district courts now may (and should?) apply the most recent version of the now-advisory guidelines even when they call for a longer sentence than the guidelines applicable at the time of the offense — one of the most interesting and potentially important recent post-Booker rulings.  In addition to the usual (questionable) flourishes from Judge Posner, the Demaree opinion concludes by giving the government lawyer a bit of a smack-down about the government's approach to post-Booker sentencing (details here).

Today I received news that the Demaree panel has rejected a motion from the government to amend the Demaree opinion to remove the smack-down language.  According to the (unsuccessful) motion, the Demaree opinion "does not reflect the position of the United States," and "to have the government's position wrongly memorialized in a published opinion ... creates confusion not only within this Court, but among litigants and judges in other circuits as well."  For those interested in this squabble, the motion is available for download below.

Download demaree_motion_to_amend.pdf

Related posts:

• Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
• Who will be most sorry about Demaree?
• Taking stock of post-Booker circuit splits

Petitioner's reply brief in Cunningham

I just received a copy of the petitioner's reply brief in Cunningham, the California Blakely case to be argued in the Supreme Court on October 11.  That brief can be downloaded below; the petitioner's opening brief can be accessed here, the respondent's brief is here.  Here are parts of the reply brief's introduction:

The State of California and its amicus claim that under DSL [California's sentencing law], the upper term is the statutory maximum for Sixth Amendment purposes because a judge may impose the upper term based on the jury's verdict alone.  Therefore, they maintain, the imposition of an enhanced sentence based on the judge's own determination of factors in aggravation is constitutional.  However, their position rests on tortured reasoning and the same arguments raised by the state of Washington in Blakely, but soundly rejected by this Court.

The state and its amicus further attempt to fit the square peg of the DSL into the round hole of constitutionality carved out by this Court in Booker.  To accept their convoluted logic is to accept the conclusion that Booker implicitly overruled Blakely.  Although the DSL and the revised federal system may have some comparable features, they are different in at least one constitutionally-significant regard -- the DSL allows for judicial factfinding in imposing sentence beyond the statutory maximum authorized by the jury's verdict, while the federal system does not.

Download Cunningham.rom.pdf

Related posts coving Cunningham:

• What do Justices Alito and Roberts think about bright lines?
• Getting excited for Cunningham
• Cunningham cert grant: taking stock and reading up
• Cunningham coverage category archive

More on starting a sentencing commission

The new blog Corrections Sentencing is still going strong and has a lot of new posts in its series about starting a sentencing commission.  Here are all the installments so far:

• So You Want to Start a Sentencing Commission? Part I
• So You Want to Start a Sentencing Commission? Part II
• So You Want to Start a Sentencing Commission? Part III
• So You Want to Start a Sentencing Commission? Part IV
• So You Want to Start a Sentencing Commission? Part V
• So You Want to Start a Sentencing Commission? Part VI
• So You Want to Start a Sentencing Commission? Part VII

Also, on other sentencing topics, Grits for Breakfast is covering lots of interesting ground.

Proof that sports stars don't always get sentencing breaks

The Washington Post has this long article about yesterday's sentencing of "Lonny Baxter, the former University of Maryland basketball star caught last week with a gun a few blocks from the White House."  Baxter was sentenced yesterday "to about nine months in jail but suspended all but 60 days of that sentence, meaning that if Baxter stays out of trouble, he will not have to serve the remaining time. [Judge] Iscoe also placed him on probation for 18 months, fined him $2,000 and ordered him to perform 100 hours of community service."

The story got my attention not only because I have always been a big Terrapin basketball fan, but also because the DC Superior Court sentencing judge rejected the prosecutor's recommendation for probation:

Iscoe acknowledged Baxter's prompt cooperation with authorities but said he could not go along with the government's recommendation of probation. The government had given Baxter a "great break" in conditionally dropping the most serious charge, Iscoe said.  In sentencing Baxter for the other two charges to which he pleaded guilty -- possession of an unregistered firearm and unregistered ammunition -- he could not be so lenient, Iscoe said....

Nice Slate commentary on crack sentencing

Larry Schwartztol writing for Slate has this thoughtful essay entitled, "Rocks and Powder: Will Congress listen to the courts and fix drug sentencing?".  The whole piece is great, and here is an extended snippet:

For years judges have railed against the heavy crack sentences as unfair, and Congress has considered amending them before.  What's different this time is that the judges are doing more than complaining.  Seizing on a Supreme Court decision that expanded their discretion over sentencing, judges have justified less harsh punishments for some crack offenders by trumpeting the sentencing scale's many faults.  And rather than ignoring the judges or trying to silence them, Congress may actually be listening, for a change....

In the year and a half since Booker, about two dozen district courts have issued sentences below the ranges in the sentencing guidelines at least in part because the crack penalties were too harsh.  But three appellate courts around the country have refused to go along. They have thrown out the reduced sentences for crack offenders on the grounds that Booker allows courts to take into account the specifics of each case at sentencing, not to disregard a penalty because it has statistically pernicious effects. Other appellate courts may see the matter differently, and eventually, the Supreme Court may weigh in. But for the time being, the maneuvering room eagerly claimed by many district courts may be disappearing.

This is why the senators' new bill to remake the sentencing ratio is so remarkable. Some members of Congress are heeding the trial judges' call — and they're proposing to make some sentences more lenient, hardly the usual congressional course.... The proposed change to the crack-vs.-powder sentencing scale doesn't reflect a newfound lenient disposition. Recalibrating the 100-to-1 ratio is an easy call because the crack penalties have become an embarrassment.  Still, it's nice to see a group of Republican and Democratic lawmakers taking a cue from the judiciary. 

The legitimacy of both branches is enhanced if they are seen as engaging each other rather than constantly clashing.  It is rare for judges to use their opinions as a forum for editorializing about what Congress should be doing. So, when a particular policy attracts persistent judicial protest, Congress does well to listen carefully. This is especially true when it comes to potentially discriminatory laws.  Courts have a special role to play in protecting minorities when lawmakers appear indifferent to policies with uneven effects across racial lines. Judges are also insulated from the kind of frenzied politics that drove the initial adoption of the drug penalties. And they operate the machinery of the criminal justice system on a daily basis. Congress should respond, finally, to what judges are telling them about drug sentencing.

Some related posts on crack sentencing after Booker:

• A Senate bill to reduce crack/powder disparity
• Noticing different legislative reactions to meth and crack
• Crack sentencing and the anti-parsimony pandemic
• Crack reasonableness review should be as easy as 1, 2, 3
• What is the Sentencing Commission fiddling while the crack guidelines burn?
• New ACS issue brief on crack sentencing disparity
• Insightful report and analysis of Booker on crack

Ninth Circuit going en banc on reasonableness review

Howard Bashman reports here on this order from the Ninth Circuit granting rehearing en banc in two cases addressing reasonableness review after Booker.  The two cases are Carty (discussed here) and Zavala (discussed here).  I had heard of griping from various quarters about the ruling and impact of Zavala, so I am not too surprised by this development.

Perhaps what is most interesting is the moving reasonableness target that the en banc Ninth Circuit may face.  It seems unlikely that this en banc case will be fully briefed before the Supreme Court hears Cunningham, the California Blakely case in which the state defends its system essentially on Booker reasonableness grounds.  Also, as I suggested here, the Supreme Court perhaps should grant cert on a federal reasonableness case in the next few months given the splits I have noted here.  It will interesting to see how SCOTUS developments could impact the Ninth Circuit's en banc work.

Two more ugly examples of reasonableness review

Yesterday in this post, I lamented that circuits have been improperly judging reasonableness in reference to the guidelines, when they should be judging reasonableness in reference to the provisions of 3553(a).  Since that post, two more ugly examples of this phenomenon came to my attention.

In US v. Wallace, No. 05-3675 (7th Cir. Aug. 14, 2006) (available here), the Seventh Circuit last week reversed a below-guideline sentence even though the district court, after a thorough review of the purposes set out in 3553(a)(2), decided to reject the "advisory guidelines range as 'a bit much' in light of the factors enumerated in 18 U.S.C. § 3553(a)."  The sentence had to be reversed, said the Seventh Circuit panel, because "the court may have been influenced by a disagreement with the command of the guidelines to base sentences on intended loss."  I thought after Booker that the guidelines were just advice, but apparently they are still "commands" in the Seventh Circuit (even though, according to Demaree (discussed here and here), ex post facto protections no longer apply in the Seventh Circuit).

Meanwhile, in US v. Paredes, No. 05-3675 (10th Cir. Aug. 22, 2006) (available here), the Tenth Circuit yesterday affirmed a within-guideline sentence even though the district court, sentencing after Booker, stated that "I'm basically stuck with the guidelines."  The Tenth Circuit panel held that "we will not interpret the court's imprecise comments on the extent of its discretion as blatant disregard of Booker.  We are not persuaded that the district court failed to recognize that the Guidelines are advisory." 

So, it is reasonable to carelessly treat the guidelines as mandatory, but unreasonable to thoughtfully treat the guidelines as advisory.  Yeah, sure, ... that's a fair reading of Booker.  Of course, such a guideline-centric, anti-defendant attitude has been prevalent in the circuit courts for 18+ months, as evidenced by the ugly patterns of reasonableness review.  As documented here, thoughtful district judges have come to believe, based on circuit precedents, that Booker does not really provide any additional sentencing discretion to sentencing judges.

Though I have now read hundreds of post-Booker circuit opinions, I still amazed and surprised by the judicial activism reflected in those appellate rulings that seem so eager to preserve the pre-Booker guideline sentencing system despite Booker's declaration that such a system is unconstitutional.  I am also troubled that the usual critics of judicial activism, who are so quick to assert that liberal judicial ruling are lawless, have not made a peep about the post-Booker circuit activism keeping the guidelines propped up.

More on upcoming Olis resentencing

As first noted here, this week has brought notable developments in the run up to Jamie Olis's upcoming resentencing.  The Houston Chronicle today has this thorough article on the case and the new twists and turns.  Here's a snippet:

A government expert failed to prove that a transaction involving former Dynegy manager Jamie Olis was to blame for the company's falling stock price in 2002, according to a report filed this week in anticipation of Olis' Sept. 12 re-sentencing hearing.  The expert used ''methodologies that are broadly criticized in the scholarly literature and repeatedly commits basic logical errors" according to a filing on behalf of Olis by Joseph Grundfest, a Stanford Law School professor and former commissioner of the Securities and Exchange Commission.

That's why instead of the 24-year sentence Olis is currently serving, a five-year sentence would be "sufficient but not greater than necessary," said Olis attorney David Gerger in a filing that accompanied Grundfest's report.  Olis has already served three years in jail but will be re-sentenced now that an appeals court decision has overturned the original sentence by U.S. District Judge Sim Lake....

Grundfest wouldn't comment on why he chose to get involved, but Olis' case is being closely watched by many in the legal and business community.  The length of the sentence and Olis' relatively low rank in the company was seen as a warning to many that the government would leave no stone unturned in pursuing white-collar crime.

"It's as if you had a David being punished for the alleged crimes of Goliath," said Joel Androphy, a Houston trial lawyer who has followed the case.  "Even if he eventually gets a reasonable sentence, for the last few years the government has received dividends in having his sentence out there to use it as a threat against others."

Prosecutors would not release the expert's report, which they filed with the court earlier this year, but in another filing that became available this week they said the losses estimated in the report "exceed $100 million" and that Olis should still be sentenced to 24 years. "Jamie Olis was the pervasive driving force behind one of the most serious securities frauds of recent times," prosecutors wrote, countering defense arguments that higher-ranking executives at the company, including the former chief financial officer, should be held accountable for the transaction in question.

A host of notable sentencing stories

The newspapers today have a lot of quite intriguing sentencing stories.  Each of these stories could merit its own post, but for now here are headlines and links:

• From Florida here, Teen's sentence looms large in judicial race: Candidates for the 5th Judicial Circuit keep facing questions on the 30-year-prison term given to a 17-year-old black youth

• From Michigan here, Victims decry sex case sentence

• From Ohio here, Erpenbeck seeks less jail time

• From Pennsylvania here, Ex-Norristown mayor gets 51-month prison sentence

Second Circuit discusses fast-track disparities

In a detailed and thoughtful opinion, the Second Circuit in US v. Mejia, No. 05-3902 (2d Cir. Aug. 22, 2006) (available here), essentially declares that fast-track disparities are "warranted" by holding that "a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable."  Notably, the decision does not conclusively address whether it might be permissible for a district court to choose to adjust a sentence to compensate for the absence of a fast-track program.

In speaking about the development of fast-track sentence discounts, the Mejia opinion makes these intriguing observations:

Thirteen of the 94 federal districts have "early disposition" or "fast-track" programs for illegal reentry cases: Arizona; California (Central, Southern, Eastern and Northern districts); Idaho; Nebraska; New Mexico; North Dakota; Oregon; Texas (Southern and Western districts); and the Western District of Washington.  Mejia's brief includes a chart calculating the (abbreviated) sentencing ranges that would have been applicable in the fast-track districts.

The record does not reflect whether the Southern District of New York could qualify for a fast-track program or why qualification has not been sought (or if sought, not granted). The data in the record, which are incomplete, indicate that the Southern District of New York has more than twice the number of illegal reentry cases as the districts of Idaho and Nebraska, and more than four times the number as the districts of North Dakota and Western Washington.  Of course, various prosecutorial offices may differ as to the number and deployment of lawyers, the setting of priorities, and the press of other business.

Critically, the Second Circuit's review of fast-track districts in Mejiais a bit dated in light of the recent news, discussed here, that perhaps five or more districts have been approved for fast-track programs by the Attorney General.  But, because the Justice Department is not forthcoming about exactly how and where fast-track programs are authorized and how they operate, I do not know if some New York districts might now have fast-track programs in the works.

A update on Blakely in Minnesota

A helpful reader provided me with a detailed update on how Blakely issues are playing out in the land of 1000 grand lakes.  Here are the highlights:

In the last two months, the Minnesota Supreme Court issued two important Blakely-related decisions.  In State v. Osborne (available here), the Court held that the plain-error standard of review does not apply to Blakely errors that occurred in pre-Blakely trials; in other words, Blakely was decided while the case was on direct appeal.  The Court also held that facts underlying sentenced counts can't be used to enhance sentences on other counts.  In State v. Dettman (available here), the Court repeated its plain-error holding. The Court also held that without a knowing, intelligent, and voluntary waiver of a defendant's jury-trial rights as to the aggravating factors, the defendant's statements during his plea hearing or to the police cannot support an upward departure.

Finally, just a few days ago, the Supreme Court promulgated a new set of Rule of Procedure to deal with Blakely and sentencing jury trials. The rules of procedure can be accessed here at a "news" page that has the rules linked as word and pdf files.

A fascinating article from a fascinating resource

Even after doing this blog for two years (and working in the sentencing field for over a decade), I continue to discover great new resources and ideas for sentencing researchers and practitioners.  Today the new resource is the Justice Research and Statistics Association.  As explained here, JRSA is "a national nonprofit organization of state Statistical Analysis Center (SAC) directors, researchers, and practitioners throughout government, academia, and criminal justice organizations."  As detailed here, JRSA supports numerous publications, and the JSRA website includes this searchable database called ISAR (Infobase of State Activities and Research), which lists activities and publications of State Statistical Analysis Centers (SACs).  I am told that "ISAR would make it fairly easy for anyone visiting the site to find out what sentencing-related work the SAC in a particular state is doing."

To whet your appetite for all that JSRA has to offer sentencing fans, check out this recent issue of JRSA's journal, Justice Research and Policy.  Also, I can post in full text a fascinating article that appeared in the most recent issue of JRP entitled "Sentencing and Conventional Number Preferences: A Research Note."   Here is the abstract:

Prior research on sentencing has shown that judges rely heavily on "conventional number preferences" (CNPs), often defaulting to certain "preferred" sentences, e.g., three years, four years, five years, etc., that come easily to mind. Data from Wisconsin confirm that its judges, virtually unbound in their discretion, are likewise heavily influenced by CNPs, with 10 prominent sentences explaining almost all non-probation felony sentences.  Wisconsin currently spends nearly $2,300 per prisoner, per month.  Strong preferences for three-, four-, and five-year sentences, when shorter terms would suffice, cost the state millions of dollars each year.  Additionally, CNPs may result in disproportionate sentences for offenders who commit the same crime.

Download jrp_article_by_wiseman_fischer_connelly.pdf

UPDATE: This post from Correcions Sentencing discusses JRSA and JRP.

Amicus brief in Third Circuit case on burdens of proof

As noted in prior posts assembled here, the Third Circuit in US v. Grier will consider en banc appropriate burdens of proof in post-Booker federal sentencing.  Today I received a copy of a Grier amicus brief from NACDL and the National Association of Federal Defenders.  This brief, which can be downloaded below, advocates a standard and burden of proof beyond a reasonable doubt for all determinate facts which contribute upward to the judge's sentencing decision (it also discusses proof by clear and convincing evidence as a fallback, and suggests that reliance on either statutory construction or supervisory power can avoid a decision on constitutional grounds).   Here is a snippet:

Since before the founding of our Republic, the requirement that the state in criminal cases bear a burden of proof beyond a reasonable doubt has protected the people's liberty, shielded accused persons from unwarranted stigmatization, allocated the risk of erroneous decisions during the prosecution of criminal charges, acknowledged the extraordinary importance of the underlying decisions being made, and provided society with sound reasons to have faith in the accuracy and reliability of our criminal justice system.  As detailed in the following Sections, each of those goals is implicated when a federal criminal defendant's Guidelines range is calculated by the district court, and each is threatened when that range is selected on the basis of facts determined in reliance on a less exacting standard of proof.  This Court should therefore hold that as a matter of Fifth Amendment due process, such fact-finding must be subjected to the time-honored standard of proof beyond a reasonable doubt.

Download grier_amicus_brief_and_addendum.pdf

Related posts on Grier and burdens of proof:

• Top-side brief in Grier proof standard Third Circuit en banc appeal
• Third Circuit specifies issues for Grier en banc
• Major Third Circuit ruling on post-Booker burden of proof
• More on Grier and the post-Booker burden of proof
• Third Circuit taking burdens en banc
• Burdens of proof and a new due process of sentencing
• More about beyond a reasonable doubt at sentencing
• Revised draft of Pondering Modern Sentencing Process
• A post-Booker burden of proof primer

Eleventh Circuit rebuffs various crack arguments

The Eleventh Circuit today in US v. Pope, No. 05-11552 (11th Cir. Aug. 22, 2006) (available here), discussed and rejects a number of constitutional challenges to a long sentence imposed in a crack case.  Though the defendant apparently did not directly attack the reasonableness of his sentence, the Pope court discusses post-Booker sentencing standards at some length.  And, to its credit, the court describes reasonableness review in decidedly non-guideline terms:

Our reasonableness review is "deferential" and focuses on whether the sentence imposed fails to achieve the purposes of sentencing as stated in § 3553(a). Moreover, we recognize that a range of reasonable sentences exists from which the district court may choose.

The central flaw in reasonableness review

Recent circuit opinions have helped me see the one central flaw that infects reasonableness review after Booker.  Put simply, circuits have framed and judged reasonableness in reference to the guidelines, when they should be framing and judging reasonableness in reference to all the provisions of 3553(a).

In the Booker remedial opinion, Justice Breyer explains that "Section 3553(a) ... sets forth numerous factors that guide sentencing.  Those factors in turn will guide appellate courts ... in determining whether a sentence is unreasonable."  Even when imposing within-guideline sentences, most district courts seem attentive to at least some of the "numerous factors" in 3553(a).  But nearly all circuit court decisions are focused excessively on the guidelines when judging reasonableness.

Circuits declaring within-guideline sentences "presumptively reasonable" and the ugly patterns of reasonableness review highlight the guideline-centric approach to reasonableness.  But, as I stressed in my recent Yale Law Journal Pocket Part commentary, Congress's nuanced instructions in 3553(a) set out the guidelines as just one factor among many — and not the first or most important one.  Moreover, the US Sentencing Commission has never fully explored — nor even formally addressed — whether the guidelines comply with the central command of 3553(a) directing courts to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment.  On the contrary, the USSC has often stated that certain guidelines — such as crack guidelines and the severe career-offender enhancement — undermine the sentencing goals set forth by Congress in 3553(a)(2).

In this recent post, I pondered when and how the Supreme Court might take up a case concerning reasonableness review.  Now I am thinking that SCOTUS should simply start its new Term with a summary reversal clarifying that reasonableness review must be informed, as the Court said in Booker, by the "numerous factors" of 3553(a) and not just the guidelines.  I am not holding my breath, but will at least dream, that the Justices will seek to ensure that what Congress expressly set forth in 3553(a) and what the Court clearly said in Booker gets taken seriously.

Oklahoma tweaking its lethal injection protocol

Oklahoma, the first state to develop a procedure for lethal injection, is now tweaking its protocol.  Here are a few details from this AP story:

Oklahoma has changed the way it administers fatal drugs during executions amid three court challenges to the process.  Under the revised procedure, a death row inmate will receive a larger dose of anesthesia before the drug that stops the inmate’s heart is administered. Richard Kirby, the general counsel for the Oklahoma Department of Corrections, said the changes were the result of recommendations by an expert who testified during a recent challenge by a death row inmate....

James Patrick Malicoat, who was convicted of murdering his 13-month-old daughter in 1997 in Chickasha, is scheduled to be executed Tuesday. The Oklahoma Court of Criminal Appeals rejected Malicoat’s challenge to the execution procedure in June.  At least three inmates have challenged Oklahoma’s execution procedure in federal court, claiming it violates their 8th Amendment protection against cruel and unusual punishment....

Oklahoma law calls for condemned inmates to be injected with a lethal quantity of an ultra-short acting barbiturate in combination with a chemical paralytic agent until they are pronounced dead. Details are left up to the Corrections Department. Kirby said the warden at Oklahoma State Penitentiary, where inmates are executed, is responsible for the procedure, with input from other department officials. Medical professionals are consulted when needed.

Fascinating developments in the Olis case

Peter Lattman over at the WSJ blog here has interesting news about development leading up to Jamie Olis's upcoming resentencing.  Here are some highlights:

Joseph Grundfest, a Stanford Law School professor and former SEC commissioner, is donating his time to the defense of Jamie Olis, the former Dynegy executive who received a 24-year prison sentence after his 2003 conviction on fraud charges....  Grundfest contacted Olis's appellate lawyer, David Gerger of Houston, asking if he could assist Olis pro bono, according to court documents.

Under federal sentencing guidelines that were mandatory when Judge Lake sentenced Olis in March 2004, losses of more than $100 million that could be linked to a defendant's crimes resulted in prison terms that exceeded 20 years. Grundfest and Olis's lawyer, Gerger, both argue that Olis's crimes couldn't be linked to steep losses because Dynegy had announced other bad news when Project Alpha was disclosed....

The U.S. Attorney's Office in Houston has asked that Olis's sentence stand in the wake of the Fifth Circuit ruling.  Gerger, however, is arguing that Olis's case calls for a sentence far below the prosecution's suggested guideline range.  Here is Gerger's 23-page sentencing memorandum.

Eighth Circuit perpetuates a guideline-centric world

The Eighth Circuit has not been a big player in all the notable circuit Booker action lately (details here and here).  But today the circuit has two opinions that show, yet again, the Eighth CIrcuit's eagerness to perpetuate a guideline-centric world after Booker.

US v. Kiertzner, No. 05-1961 (8th Cir. Aug. 21, 2006) (available here), summarily reject a defendant's challenge to the reasonableness of a long (within-guideline) sentence in a felon-in-possession case involving seemingly benign facts.  Along the way, the Eighth Circuit's says that departures, and its per-Booker departure jurisprudence, remain central to the post-Booker world.

US v. Portillo, No. 05-3358 (8th Cir. Aug. 21, 2006) (available here), reverses a below-guideline sentence even though the district court expressly found that a 10-year sentence was "more than sufficient to punish to defendant for his first criminal offense, particularly given the defendant's young age at the time of the offense and the lack of violence related to the criminal conduct."  But because the sentencing judged stressed "one key witness's questionable credibility," the Eighth Circuit reversed because it believes "the district court cannot consider credibility as part of its § 3553(a) analysis."  Why this purported error could not be found harmless to save the time and energy of a resentencing is not explained.

Interesting death penalty headlines

The start of a new week brings a numbers of intriguing death penalty stories in the papers:

• USA Today has this article, "1 in 8 murderers halted their appeals to speed execution."

• The Houston Chronicle has this article, "South Dakota turns to Huntsville for advice on first execution since '47."

• The Myrtle Beach Sun News has this article, "Doctors question execution presence."

Also, this morning brings this editorial from the Los Angeles Times, "Lethal Injection -- Still Lethal," and this editorial from Arizona's East Valley Tribune, "Death penalty cases unnecessarily held up by federal judges."

Oregon's early release program under fire

Oregon has an unique early release program that, according to this fascinating article, is operating in a manner that has upset some of the state's district attorneys.  Here are parts of the article:

Norma Mae Gallagher turned 71 behind bars, where Clatsop County District Attorney Josh Marquis put her in 2003 after her 30 years of crime.  This time it was drug-dealing and weapons. Nine months and 10 days into her three-year sentence she was out, thanks to Oregon's alternative incarceration program, or AIP.

Marquis was frustrated and isn't alone.  Across Oregon other DAs have similar tales and want a review of the program passed by the 2003 Legislature....  The plan offers felons less prison time if they agree to six months of drug and alcohol treatment and three months of home leave....

About 13,000 inmates are in state custody at a given time. Since the program went into effect Jan. 1, 2004, AIP releases have been offered to 2,698 inmates, but 1,170 washed out during treatment and another 234 did so on home leave.  Under AIP, with time off for good behavior and home leave, a felon sentenced to 45 months could be back home in six.

Former legislator Max Williams, now head of the Corrections Department, guided the enabling legislation for AIP to unanimous passage by the 2003 Legislature. It drew little attention, and the Oregon District Attorneys Association says it didn't raise a fuss then because the bill was presented simply as a way to treat substance abusers in custody, something with which they generally have no problem.

Williams says that sentence reduction is all Oregon can offer as an incentive to undergo treatment, that the legislation ran the normal course and that the prosecutors shouldn't have been caught napping.... [P]rosecutors want changes from the next Legislature.  Clackamas County [prosecutor], John Foote, [says] "It's shortening prison sentences in Oregon, and the public isn't even aware of it.  The Department of Corrections now decides how long a sentence is, not the court.  The size of the time cuts is substantial, and it's not determined at sentencing." ...

Deschutes County DA Mike Dugan says his colleagues are overreacting and says AIP does more good than harm.  He said prosecutors have what they need and can structure plea deals to delay or ban AIP eligibility. "It's possible to say, 'OK, I'll let you plead down, but you have to agree you're not eligible for alternative programs until you have 12 months left, eight months left, whatever,' " he said.  He says he gives the Department of Corrections more credit than many for using good judgment in winnowing unworthy applicants.

Booker downloads of the week

Last week's sentencing highlights (and lowlights) included these Booker items not to be missed:

• Amy Baron-Evans' extraordinary memorandum on post-Booker sentencing here.

• The Second Circuit's troublesome work on crack sentencing here (and critiqued here).

• The Fifth Circuit's intriguing approach to reasonableness review in Tzep-Mejia here.

• The Sixth Circuit's thoughtful sparring over reasonableness review here and here.

And Booker fanatics might also want to check out some of my recent Booker commentaries:

• Who will be most sorry about Demaree?
• Crack reasonableness review should be as easy as 1, 2, 3
• Taking stock of post-Booker circuit splits
• When and how should SCOTUS take up reasonableness review?
• A criminal start to OT '06 for SCOTUS
• What a Booker month in the circuits

Major conference on US punishment

Thanks to CrimProf Blog, I see that the New School for Social Research in New York is putting together this great conference entitled "Punishment: The U.S. Record."  Here is the set up:

The Land of the Free?  A conference on who, what, why and how we punish.

Our nation's prison population has soared by more than 600% since the 1970s, despite a drop in crime rates.  As of 2005, over two million people were imprisoned in this country: almost one in every 136 U.S. residents.  Black men, who make up 6% of the U.S. population, comprise over 40% of our prison population.  A black male born today has a 32% chance of spending time in prison.

Taking place from November 30 to December 1, the conference schedule and participants look amazing.

Sad proof of post-Booker judicial intimidation

I have repeatedly lamented the ugly pattern of reasonableness review in the circuit courts because I fear these patterns could make district judges afraid to sentence outside the guidelines after Booker.  Thanks to a helpful reader, I now have a concrete example of a fine district judge explaining that he feels that, based on Fourth Circuit precedents, Booker does not provide any additional sentencing discretion.

In US v. Hartley, No. 2:06-00017 (S.D. W. Va. Aug. 10, 2006), Judge Joseph Goodwin sentenced a defendant who pled guilty to cultivating marijuana.  The sentencing transcript, which can be downloaded below, documents the unusual nature of the offense and the defendant.  But, as highlighted by this excerpt, it also documents the judge's sad perspective on post-Booker realities:

It is the rigidity of the guidelines and the restriction on District Courts' discretion which compels me to sentence you ... within the guidelines....  I do not believe that I have discretion to act in a fashion which I find to be reasonable.  Rather, I am constrained by the appellate courts to act in a fashion that they think is reasonable with no consideration, or virtually no consideration given to the judgment of the trial court judges....

[W]hen I read Booker, I hearkened back to the time when I read Koon and I actually thought that maybe the time had come when once again judges got to look at the individual and, as your lawyer very eloquently said, tailor the sentence [to] make the punishment fit the crime and the punishment fit the individual.  [But] that wasn't true after Koon.  It took the appeal court just a few months to change it.  It's not true after Apprendi, Blakely, and Booker.  It took them just a few months to change it.

Download judge_goodwin_sentencing_transcript.pdf