Sentencing Law and Policy

ABA report calls for Georgia DP moratorium

As detailed in this newspaper article, "Georgia should place a moratorium on seeking the death penalty because it cannot ensure fairness in defendants' trials and appeals, according to a new report by the American Bar Association."  Here are just a few highlights from the long and thoughtful article:

The recommended moratorium on death penalty prosecutions is contained in a 323-page report prepared by 10 prominent Georgia lawyers and political figures, including a former state chief justice, law professors, criminal defense lawyers, former prosecutors and a legislator....

Asked if Gov. Sonny Perdue would consider a moratorium, his spokesman, Dan McLagan, said simply: "Nope."

UPDATE:  The full ABA report, which looks stunning in both its length and intricacy, is available at this link.

Weekend capital punishment reading

Death penalty cases and jurisprudence are always rich with drama.  But this week's events involving the (after-the-)last-minute stay and cert grant in Hill and its ripple effects seem like a whole new chapter in capital drama.  With a weekend break providing a moment to reflect on capital punishment in theory and practice, I see SSRN has these interesting new papers on the death penalty:

• The Second Death of Capital Punishment by J. Richard Broughton

• When the Federal Death Penalty is 'Cruel and Unusual' by Michael Mannheimer

Recap of this past week's (too?) exciting death penalty developments:

• Now what in Florida and Texas?
• A cruel and too usual jurisprudence?
• What's SCOTUS doing in the Hill case?
• Does the SCOTUS cert. grant create a de facto moratorium?
• How will the Hill case impact execution plans?

All hail the Blakely Frontier

The state nickname for Alaska is "The Last Frontier," but I am going to start calling it the Blakely Frontier after the Alaska Court of Appeals issued another terrific and terrifically interesting Blakely opinion in Carlson v. State, No. 2029 (Alaska App. Jan. 27, 2006) (available here).  Last month, as detailed here, the Alaska Court of Appeals issued a strong opinion on Blakely and consecutive sentencing in Vandergriff v. State, No. 2022 (Alaska App. Dec. 16, 2005), and Carlson is more of the same.

The Carlson decision is authored by Judge Mannheimer, who wrote a fantastic concurrence in Vandergriff in which he provided a cogent and compelling account of the Apprendi-Blakely-Booker line of decisions.  The Carlson opinion covers similar ground in its thoughtful explanation of its holding that a judge's imposition of a "sentence that exceeds the benchmark sentencing range for second-degree murder" established by caselaw does not transgress the Sixth Amendment.  Here is a small sample of a must-read state Blakely decision:

To preserve the right to jury trial guaranteed by the Sixth Amendment, the Supreme Court has ruled that governments can not define criminal offenses in a manner that allows the prosecutor to present a stripped-down case to the jury and then, following the defendant's conviction, allows the sentencing judge to decide other factual issues which (if proved) will lift the sentencing ceiling — effectively convicting the defendant of an aggravated degree of the underlying offense....

The constitutional problem in Apprendi, Blakely, and Booker was the attempt by various governments to segregate certain aspects of a crime — facts that would traditionally be viewed as elements of the crime (facts relating to the defendant's conduct, mental state, or criminal history, or other circumstances surrounding the crime) — and assign the decision of these facts to the sentencing judge by declaring these facts to be "sentencing factors"....

Rather than being a finding of historical fact, the finding required by [our caselaw here] (some sound reason for concluding that the defendant should receive a sentence longer than 30 years) is partly a weighing of imponderables and partly a prediction of the defendant's future behavior, based on the judge's assessment of the underlying causes of the defendant's criminal behavior, the defendant's likelihood of recidivism, and the defendant's amenability to rehabilitative efforts. In other words, this finding does not look like any of the findings that are traditionally entrusted to the jury under our system of justice (save in those few states which give sentencing authority to juries).

Thoughtful clemency commentary

Professor Sherry Colb has this thoughtful and wide-ranging commentary at Findlaw.com about capital clemency; it is focused primarily on Clarence Ray Allen's unsuccessful request for clemency from Gov. Schwarzenegger based on his old age and infirmity.  (Hat tip: CrimProf Blog.)  More background on the Allen case can be found here and here, and a lot more clemency discussion can be found at this category archive.

Effective article on "Cracked Sentencing"

The ABA Journal's e-report has this effective article discussing post-Booker crack sentencing, which focuses particularly on the First Circuit's recent Pho decision (basics here, commentary here and here and here) and the Eleventh Circuit's recent Williams decision (details here).  The piece ends, as did a recent Wall Street Journal article, with what seems like an encouraging quote from Senator Jeff Sessions:

Whether the Pho decision will spur congressional action is unclear.  U.S. Sen. Jeff Sessions, R-Ala., said after the decision was issued that he would introduce a bill this year to propose changing the law to reduce the ratio. "I still believe the guidelines are not appropriate on crack and powder cocaine," he said in a statement. "I think we need to make some improvements there based on the reality of what's going on in the courts of America."

Related posts:

• Eleventh Circuit affirms significant below-guideline sentence
• First Circuit rejects reduced crack/powder ratio
• Why Pho seems wrong: what "law" was violated?
• More Pho follow-up
• Framing Pho: keeping the decision from seeming too wrong
• Insightful report and analysis of Booker on crack
• Another crack at an amicus brief on crack sentencing

Now what in Florida and Texas?

Because the Supreme Court decided last night, as noted here, to permit Indiana to go forward with a lethal injection execution (after vacating a last-minut stay granted by the Seventh Circuit), I am now wondering how litigation will unfold in Florida and Texas, which are both scheduled to conduct executions on Tuesday according to this page at the Death Penalty Information Center.

This newspaper article from Florida discusses death row defendant Arthur Rutherford's case.  The article indicates that Rutherford's lawyer believes that the stay granted by the Supreme Court in Hill (discussed here and here) will lead to a delay in Rutherford's execution.  But, after last night's execution in Indiana, I do not think that's a given.  Adding intrigue, as the Florida article details, Rutherford is pursuing state court appeals claiming he has "new evidence that could exonerate him."

Meanwhile, I can find very little recent press coverage about the Texas defendant, Jaime Elizalde, scheduled to be executed on Tuesday.  But this article from two weeks ago indicates that he is also pressing innocence claims.  Hmmmm.

UPDATE:  This comment to a prior post by Prof. Adam Thurschwell and this comment dialogue at SCOTUSblog and richness and intrigue to what's going on in Hill and subsequent cases.  It does not necessarily answer, however, exactly how all the post-Hill litigation may play out over the next few months in various states.

How will the Hill case impact execution plans?

As evidenced by my commentaries here and here, I am curious and uncertain about how other planned executions might be impacted by the Supreme Court's decision to grant cert in the Hill case concerning procedures for challenging the constitutionality of a method of execution.  Recent articles from California and North Carolina suggest others are curious and uncertain, too.

Notably, Indiana has an execution scheduled for early Friday morning, and this article indicates that, after the governor denied clemency, the defendant's attorney is now "asking the U.S. Supreme Court to block his execution [citing] the court's decision to hear a case involving a Florida death row inmate challenging lethal injection as cruel and unusual punishment."  Also, Maryland has an execution scheduled for next week, and this article reports that a "hearing will be conducted Friday in federal court on a condemned Maryland inmate's effort to halt his execution ... [by] challenging the constitutionality of Maryland's lethal injection process."

Related recent posts:

• More Hill coverage and commentary
• A cruel and too usual jurisprudence?
• Does the SCOTUS cert. grant create a de facto moratorium?
• What's SCOTUS doing in the Hill case?

UPDATE:  Apparently no more than two Justices are really all that concerned about lethal injection.  As Lyle Denniston reports here, the Court on Thursday evening "cleared the way for Indiana to carry out after midnight the execution of Marvin Bieghler, refusing to hear his challenge to the process of lethal injection that the state uses to carry out a death sentence.... Justices John Paul Stevens and Ruth Bader Ginsburg noted that they would grant the stay."

Ultimately, I am not surprised that a majority of Justices are prepared to still allow states to go forward with execution plans.  But I remain surprised that the Court bothered to intervene in the Hill case just to make sure his claim about lethal injection (which appears doomed on the merits) gets formally considered (and rejected) through the right procedural mechanism.

FURTHER UPDATE: As detailed in Lyle Denniston's updates here, the litigation over the Indiana execution took some late night twists and turns before the (constitutionally uncertain?) lethat injection protocol went forward.  More details on the Indiana case can be found in this news account.

Of innocence and over-punishment

The New York Times has this interesting op-ed from Joshua Marquis, an Oregon district attorney and vice president of the National District Attorneys Association, which bemoans the fact that "Planet Hollywood" creates movies and TV shows suggesting "that our prisons are chock-full of doe-eyed innocents who have been framed by venal prosecutors and corrupt police officers with the help of grossly incompetent public defenders."  He concludes his commentary by asserting that "Americans should be far more worried about the wrongfully freed than the wrongfully convicted."

Over at TalkLeft, T Chris here bemoans "prosecutors like Marquis [who] blithely assure us that we shouldn't worry about wrongful convictions."  To add my two cents, I suggest no one come to a conclusion in this debate until they read at least some of this amazing five-part investigative report on the criminal justice system that appears in the San Jose Mercury News this week.  Here is an excerpt from Executive Editor Susan Goldberg's introduction to the series:

Today and for the next four days, we are publishing the results of an unprecedented, three-year investigation of criminal jury trials in Santa Clara County.  Its conclusions are inescapable and chilling: Too many things go wrong in our county's courtrooms.  Too many trials are less fair than they should be.  Too little is done to correct these problems, even though many officials are aware of them.  And, as a result, in some cases, people are going to prison for crimes they did not commit....

We began this project in late 2002, when we learned of questionable conduct by prosecutors in several trials.  Those cases made us wonder: How often does that happen?  So we began to devise a systematic way to examine trials by looking at the records of virtually every jury trial that had been appealed from Santa Clara County over a five-year period. Ultimately, that came to 727 cases.  Early on, it became clear that the story was not just about prosecutors, but about how each piece of the legal system -- including defense lawyers, trial judges and the appellate court -- had some responsibility for conduct that, in the worst instances, increased the chance of an innocent person being found guilty.

Ultimately, despite what the San Jose Mercury News reveals, I share some of Marquis' concern that much emphasis is placed on claims of innocence.  But this view is informed by my belief that Americans should be far more worried about over-punishment.  I think our society's extraordinary incarceration rates (and the racial skews in our whole criminal justice system) should be a greater focal point for those concerned about injustices in our criminal justice system.

Vermont judge increase notorious sex offender sentence

As detailed in news reports here and here and here, a "Vermont judge facing intense criticism for the 60-day jail sentenced he gave an admitted child molester changed his mind Thursday and increased the sentence to a minimum of three years." According to the AP account, "Judge Edward Cashman said he would have given the 3-year to 10-year sentence to Mark Hulett at the original sentencing, but at that point Hulett was not eligible for in-prison sex offender treatment.  He now is."

Over at TalkLeft, T Chris laments here that "Judge Edward Cashman caved to public pressure," although I am inclined to accept the Judge's new statements at face value.  Moreover, as I highlighted in prior posts about this case (linked below), what concerns me more is the broader political dynamics in which just one single seemingly too lenient sentence prompts an immediate political firestorm, but decades of seemingly too harsh sentences (e.g., long crack sentences for mules in the federal system) barely create a political ripple.

Related posts:

• The kind of case that can prompt needed reforms
• The one-way ratchet of sentencing reform
• Continued controversy over Vermont sentencing

Notable safety-valve Booker ruling from the Second Circuit

The Second Circuit today in US v. Holguin, No. 04-5277 (2d Cir. Jan. 26, 2006) (available here), thoughtfully discusses (and rejects) a set of Booker-based claims about judicial fact-finding in the application of the statutory safety-valve to mandatory minimum sentencing statutes.  Here is a sentence from the decision's official summary:

We hold that the District Court did not violate the defendant-appellant's constitutional rights nor did it commit sentencing error under United States v. Booker, 543 U.S. 220 (2005), when it rejected the defendant-appellant's request for relief under the "safety valve" statute, 18 U.S.C. § 3553(f), based on judicially-determined findings as to his criminal history and role under the United States Sentencing Guidelines.

Among other interesting aspects of Holguin is this interesting articulation of the meaning and reach of the Apprendi line of cases:

Apprendi, Blakely, and Booker teach that facts supporting a sentence must be found by a jury when they are either (1) a condition of guilt of the crime, or (2) permit a higher maximum sentence to be imposed.  Facts that permit a higher maximum sentence are treated like conditions of guilt of a crime because they effectively function to create a separate offense.

More Hill coverage and commentary

Howard Bashman has collected here a lot of additional media coverage of the Supreme Court's cert grant in Hill (background here and here).  A number of these articles (such as this one and this one) reveal that, even though the Hill case technically concerns the procedures for challenging the constitutionality of a method of execution, the broader claim that lethal injection is an unjust execution method will be getting a lot of attention as a result of the cert grant.

Related recent posts on Hill:

• A cruel and too usual jurisprudence?
• Does the SCOTUS cert. grant create a de facto moratorium?
• What's SCOTUS doing in the Hill case?
• Florida Supreme Court rejects challenge to lethal injection

A loud deafening silence from the Sentencing Commission

In our Legal Affairs debate last week, Frank Bowman lamented that the Sentencing Commission has been disconcertingly passive in its response to Booker:

One of the most puzzling features of the post-Booker landscape is the absence of the Commission as anything other than a gatherer of data.  The Commission has the time, the expertise, the data, and (one would think) the motivation to take a leading role in molding thinking about where we should go from here.  But the silence from the second floor of the Thurgood Marshall Building has been deafening.

This deafening post-Booker silence has now been broken by a loud rendition of the same old song.  Just released on the USSC's webpage is a "reader-friendly" version of the USSC's Proposed 2006 Guideline Amendments, which provides a compilation of the "unofficial text of proposed amendments to the sentencing guidelines ... for the convenience of the user in the preparation of public comment." 

The USSC's 88-page document with proposed amendments, which I've only had a chance to skim, is a remarkable testament to the USSC's remarkable disengagement with post-Booker federal sentencing realities.  Stunningly, the 88-page discussion of new proposed amendments does not even once mention the Booker ruling(!), let alone speak to how guideline sentencing could or should develop in Booker's wake.  Critical post-Booker "hot spots" like the crack guidelines or acquitted conduct or fast-track disparities are not addressed in any way.  Moreover, continuing the disconcerting severity patterns of the past, it appears that nearly every significant new amendment put forth by the USSC proposes an increase in applicable guideline ranges.   Aaaarrrrggggghhhhh!

Let me start the public comment period with this simple recommendation: The Sentencing Commission should acknowledge the Booker decision somewhere in the Guidelines Manual! 

Perhaps the new amendments are not as Booker oblivious as they seem, and I suppose I should understand why the USSC continues to run scared and apparently believes that avoiding any discussion of Booker is the best course of action.  But for the USSC to proceed with "business as usual" guideline amendment without even mentioning Booker strike me as almost a dereliction in duty.   Moreover, seeing the USSC try to stage our modern guidelines Hamlet without the Booker Prince makes me extremely pessimistic about the future script for the federal sentencing system.

How long will the prison edition of Survivor run?

As detailed in news stories here and here, "Richard Hatch, who won $1 million in the debut season of the reality show 'Survivor,' was found guilty Wednesday of failing to pay taxes on his winnings and taken straight to jail."  According to reports, Hatch will be sentenced on April 28 and the district judge "said he expected a sentence of between 33 months and 41 months, but it could be longer because prosecutors accuse Hatch of committing perjury during his testimony."  White Collar Crime Prof Blog has some commentary here.

My clever better half observed that it would be more fitting for Hatch to be sentenced on April 15, tax day.  And that got me to thinking that Hatch's (apparently lengthy) sentence would have more general deterrence value if it were imposed in the first two weeks of April.

A cruel and too usual jurisprudence?

I remain intrigued and a bit perplexed by the Supreme Court's decision to grant cert and full argument in the Hill case concerning the procedures for challenging the constitutionality of a method of execution.  (For background on the case, see this post and media coverage collected by Howard Bashman here.)   The Washington Post piece by Charles Lane provides rich background on the issues, and these comments at SCOTUSblog are also fascinating.

I am also intrigued and a bit perplexed by the possible impact of Hill.  Karl Keyes, noting that Texas carried out an execution Wednesday night (details here), rightly reiterates here that the narrowness of the issue in Hill means that scheduled executions in other states may proceed apace.  But, in this article, DPIC executive director Richard Dieter has this quote: "If you are a lawyer you are filing something just like Clarence Hill as we speak." 

Reviewing the course of litigation in Hill, I think the best explanation for the Supreme Court's actions is that the Court was troubled by the Eleventh Circuit's cursory rejection of the defendant's attempt to bring his claim as a 1983 action.  The 11th Circuit's ruling in Hill relied on a 2004 ruling by that circuit, but the Supreme Court seemed to reach a contrary conclusion on the basic 1983 issue in its subsequent unanimous ruling in Nelson v. Campbell. 

But if the 11th Circuit's sloppiness is the Court's core concern, I question whether it needed to grant cert and schedule full argument.  Couldn't some form of summary order and remand, citing Nelson, ensure Hill's claim gets considered on the merits below without creating new uncertainty about the constitutionality of an execution method used nationwide?  Unless there might now be five votes to declare lethal injection unconstitutional, the decision to take up Hill seems like a troublesome allocation of resources.  If Hill's claim on the merits is sure to be rejected (as similar claims have been rejected by lower courts nationwide), why is the Supreme Court so eager to make sure his claim gets rejected in the right procedural posture?

Ultimately, I have to chalk up the Hill case as another example in the Supreme Court's troublesome "culture of death."   As I have lamented in many prior posts (here and here and here and here), the Court's limited docket is devoted excessively to capital cases.  The Court in Hill makes time to figure out how one murderer's questionable Eighth Amendment claim should be considered procedurally.  But, to the determent of the criminal justice system, the Court cannot seem to find the time to resolve the Booker plain error mess, or the status of the prior conviction exception, or whether Blakely might be retroactive, or the many other non-capital sentencing issues that impact so many more defendants than anything having to do with the death penalty.

New Sentencing Commission report on immigration offenses

I just noticed that the US Sentencing Commission now has posted on its webpage a new report concerning immigration offenses.  This 32-page report, available here and entitled "Interim Staff Report on Immigration Reform and the Federal Sentencing Guidelines," looks more interesting than its title might suggest.  Here is its account of its coverage:

This report, organized by guideline, outlines certain issues arising out of immigration reform debate. Each immigration reform issue is analyzed in terms of how the issue is: 1) characterized through staff research, public comment, outreach and training, and information gathered from the Immigration Roundtable Discussion; 2) treated in the application and operation of the immigration guidelines; 3) informed by data available to the Commission, and 4) addressed in or corresponds to both legislative proposals or proposed amendments and issues for comment.  Additionally, this report concludes with a discussion of the particular issues facing the "border districts" and the impact of the operation of "fast track" or Early Disposition Programs on the sentencing of immigration offenses.

Seventh Circuit on limited remands and reasonableness

The Seventh Circuit today in US v. Della Rose, No. 03-4230 (7th Cir. Jan. 25, 2006) (available here), thoughtfully discusses the procedures surrounding Booker limited remands and the reasonableness of a sentence in a mail fraud case.  Though the defendant's claims are rejected, other defendants might find sweet the smell of some of the dicta in Della Rose.  For example, the Della Rose court says district courts have "much broader discretion" after Booker and it says that district courts can now give factors such as community contributions and collateral consequences "much more weight than the Guidelines themselves would have allowed."

Also, fans of intricate issues of guideline interpretation will also want to check out the Seventh Circuit's work today in US v. Chamness, No. 05-1902 (7th Cir. Jan. 25, 2006) (available here).

Does the SCOTUS cert. grant create a de facto moratorium?

As first reported in this post and as detailed more fully in this new AP story, today the Supreme Court agreed to hear "a Florida death row inmate's appeal that challenges that state's lethal injection method, just hours after the court dramatically stepped in to stop the man's execution."  And SCOTUSblog now has more details here on the schedule for Hill v. Crosby, docket 05-8794.

In addition to being surprised by this development, I am wondering whether the Court's grant of cert. could or should produce a de facto moratorium on lethal injection executions nationwide at least until the Supreme Court issues a ruling in Hill.  Though I could be wrong, I do not think there is anything especially unusual about Florida's lethal injection protocol, and thus I think the cert. grant at least raises questions for any state effort to now go forward with an execution using lethal injection. 

According to this page at the Death Penalty Information Center, roughly two dozen inmates are scheduled to be executed by eight different states before the Supreme Court is likely to resolve the Hill case this summer.  Will the Supreme Court (or lower courts) halt all these executions while the constitutionality of lethal injection is being considered in Hill?  (See updates below for further thoughts.)

Related prior posts:

• What's SCOTUS doing in the Hill case?
• Florida Supreme Court rejects challenge to lethal injection
• The legal attack on lethal injection
• Are four Justices ready to grant cert. on the constitutionality of lethal injection protocols?
• More on constitutional challenges to lethal injection
• Notable ruling on constitutionality of lethal injection
• Major Tennessee ruling upholds lethal injection protocol

UPDATE:  As Lyle Denniston clarifies in this post (which has the questions presented), the issues in the Hill case before the Court "appear to be procedural disputes, and thus the Court's answers are not likely to settle whether the executioin method Florida uses is unconstitutional under the Eighth Amendment's ban on cruel and unusual punishment."

Because Hill is about procedure, I suspect that other states might feel comfortable moving forward with lethal injections while Hill is being considered.  And yet, why would the Court use this case to address these procedural issues unless it thought there is some plausible merit to the underlying claims?

ANOTHER UPDATE:  The more I think about the grant in Hill, the more confused I am.  Formally, the case really does not address the constitutionality of lethal injection protocols, so perhaps states can and should feel entirely comfortable continuing with their execution plans.  But the grant in Hill at least suggests that death row defendants might be allowed another bite (via a 1983 claim) at the Eighth Amendment apple even after exhausting their habeas rights.  And every new constitutional bite creates a new layer of litigation in capital cases.  Is that what the Justices hoped to achieve via this grant in Hill?

Sex crimes and congressional power

Though not a sentencing case, folks who follow the regulation of sex crimes or the reach of congressional authority in the criminal justice area will want to check out today's split decision by a Ninth Circuit panel in US v. Clark, No. 04-30249 (9th Cir. Jan. 25, 2006) (available here).  The majority holds:

Where, as in this appeal, the defendant travels in foreign commerce to a foreign country and offers to pay a child to engage in sex acts, his conduct falls under the broad umbrella of foreign commerce and consequently within congressional authority under the Foreign Commerce Clause.

The dissent complains:

The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it.

UPDATE: Howard Bashman at How Appealing here provides more coverage and background on Clark.

What's SCOTUS doing in the Hill case?

As detailed here, late yesterday the Eleventh Circuit rejected various claims by death row defendant Clarence Hill, who was scheduled to be executed at 6pm on Tuesday in Florida.  And, according to this  story, "Hill had been strapped to a gurney and IV lines were running into his arms Tuesday night," but had not yet been executed when Justice Anthony Kennedy issued a stay around 7pm.

According to one press account, "Kennedy's order gave the court more time to consider whether the chemicals used in Florida's lethal injections cause pain and are cruel and unusual punishment."  The latest AP account likewise suggests the constitutionality of Florida's lethal injection protocol is the reason for the delay.  But the only information I can now find on the SCOTUS website are these orders indicating that at least some of Hill's claims were rejected by the full court.  Where's the SCOTUSblog team when I need them?

Notably, as discussed here, last week the Florida Supreme Court rejected Hill's claims that questions about Florida's lethal injection protocol should delay his execution.  Apparently, it was almost (but not quite) too late when the Justices had a chance to consider this claim.

UPDATE:  Lyle Denniston at SCOTUSblog is now reporting here that "the Supreme Court on Wednesday agreed to hear an appeal by Clarence E. Hill, a Florida death row inmate who is challenging the method that the state uses to carry out executions."  This is important and surprising news, which I will coment upon in a subsequent post.

Judicial complaint about plea deal's leniency

A fitting companion to this Florida story of a federal judge finding the guidelines too lenient in an alien smuggling case, I see from White Collar Crime Prof Blog the news of this California story involving a federal judge finding a plea deal too lenient.  Here are highlights:

A Los Angeles federal judge Monday rejected a plea agreement that would have allowed former Gemstar-TV Guide International Inc. Chief Executive Henry Yuen to escape prison time in exchange for pleading guilty to destroying evidence in a Securities and Exchange Commission probe.

U.S. District Judge John Walter said the agreed-upon sentence of six months of home detention, a $250,000 fine and a $1-million charitable donation "failed to reflect the seriousness of the offense." Walter said last month that he was inclined to reject the plea deal between Yuen and the Justice Department because it was too lenient and "sends the wrong message to corporate America."

Judicial complaint about the guidelines' leniency

Though often federal judges are heard to complain that the federal sentencing guidelines are too harsh, an alien smuggling case from Florida prompted a district judge yesterday to complain that the guidelines were too lenient.  Here are the basics from press accounts (here and here) discussing the case:

Two convicted Cuban immigrants were escorted into a federal courtroom Tuesday, fully expecting a judge to put them behind bars for six years for their roles in a smuggling operation that ended in tragedy. They were wrong.

U.S. District Judge K. Michael Moore delayed his decision, saying six years was not enough punishment under federal sentencing guidelines because a young boy drowned in the Oct. 13 illegal crossing of the Florida Straits.

UPDATE:  David Markus comments on this case here at his blog, and brings up the ever-popular judge as umpire theme.

Taking Booker and 3553(a) seriously

I have lamented today, and many times before (here and here and here), the failure of some federal courts to focus on Congress's commands in section 3553(a) of the Sentencing Reform Act.  Booker makes clear that all the provision of section 3553(a), and not just the diktats of the guidelines, are now to guide district court sentencing and appellate court review of sentences.  And yet so many opinions — especially coming from the circuits as they presume guideline sentences to be reasonable — still seem to take the guidelines more seriously than Booker and the text of section 3553(a).

But I should know better than to give up on the post-Booker world, and today I received hope in the form of an opinion recently filed by US District Judge Gregory Presnell.  Judge Presnell, who long ago already secured a place in my Sentencing Hall of Fame, provides a wonderful lesson in how to take Booker and the text of section 3553(a) seriously in US v. Pacheco, No. 05-cr-137 (M.D. Fla. Jan. 20, 2006) (available for download below).  And, along the way, Judge Presnell appropriately takes prosecutors to task for not doing the same.  Here's a selection from Pacheco, which is today's must-read:

After Booker, no one can reasonably dispute the fact that sentencing courts have discretion to impose a sentence lesser than the low end of the Guideline range, so long as that sentence is reasonable in light of the Section 3553(a) factors.  Nonetheless, the Department of Justice ("DOJ") continues to do so.  At every sentencing hearing before this Court, the prosecution recommends a Guideline-range sentence, making no effort to explain that recommendation in light of the Section 3553(a) factors.  After any below-Guideline sentence, the prosecutor routinely objects, and the only explanation offered is that the sentence falls short of the Guideline range. Obviously (though not openly), the government continues to maintain its policy that the only reasonable sentence is one that falls within or exceeds the Guideline range — a position that obviously contradicts the Supreme Court's pronouncements in Booker.  And DOJ has maintained this posture even though the Eleventh Circuit has explicitly rejected its argument that a sentence in the Guideline range is, per se, a reasonable sentence.

By continuing to insist that this Court rigidly adhere to the Guidelines, prosecutors are violating their obligation as officers of the Court and failing to provide this Court with any meaningful assistance in crafting a reasonable, just sentence.

Download judge_presnell_sentencing_order_in_pacheco.pdf

Implementing Atkins

This week brings two interesting stories concerning the application of Supreme Court's decision in Atkins barring the execution of defendants with mental retardation:

• As detailed in this story from North Carolina, federal District Judge Terrence W. Boyle, rejecting a state court's decision to the contrary, has "concluded that [death row defendant Elton] McLaughlin 'has shown by a preponderance of the evidence that he is mentally retarded' [and he] ordered that McLaughlin's death sentences be vacated and that he serve the rest of his life in prison."

• As detailed in this story from Florida, the Eleventh Circuit has rejected retardation claims by Clarence Hill, who is scheduled to be executed at 6pm on Tuesday.  The Eleventh Circuit's decision today in In re Hill , which concludes that his latest habeas application "is over 29 months late and is therefore timebarred," is available here.  Another Eleventh Circuit decision, rejecting an attempt to challenge Florida's lethal injection protocol, is available here.

UPDATE:  This AP story indicates that the Supreme Court granted a stay in the Hill case around the time of the defendant's scheduled execution.  However, these orders from the Supreme Court seem to indicate Hill's claims were ultimately rejected by the full court.

Hearding the Booker harmless error bullfrogs

As noted here, last week in McBride, Sixth Circuit Judge Boyce Martin had this colorful description of the litigation mess in the wake of Booker: "Achieving agreement between the circuit courts and within each circuit on post-Booker issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow."  Further proof of how jumpy the circuit bullfrogs can be comes today from the Fifth Circuit's ruling in US v. Woods, 04-11058 (5th Cir. Jan. 24, 2006) (available here).

Woods provides a terrific primer on Booker pipeline issues in the course of concluding that "a sentence imposed at the top of the Guidelines-determined range might be sufficient to prevent a defendant from prevailing under plain-error review, but not sufficient to demonstrate that a Booker error was harmless beyond a reasonable doubt."  In Woods, the Fifth Circuit explains why its position is consistent with the law in the Second and Seventh Circuits, but contrary to the approach of the Tenth Circuit (which it finds "less persuasive").

Eighth Circuit cracks up

The Eighth Circuit today issued interesting opinions in two crack sentencing cases: US v. Denton, No. 05-1978 (8th Cir. Jan. 24, 2006) (available here) and US v. Feemster, No. 05-1995 (8th Cir. Jan. 24, 2006) (available here).  Both include important discussions of appellate review for reasonableness, and Denton affirms a (within guideline) life sentence, while Feemster remands for resentencing to require the district judge to explain more fully a decision to impose a (below guideline) 10-year sentence.

There are lots of stories to draw from these cases, and I hope to comment further as time permits later today.  But one fact in the Denton case jumped off the page:  "Denton was offered a plea agreement with an anticipated sentence of 18 to 36 months, but he rejected it and went to trial."  Consequently, Denton's decision to put the government to its proof functionally increased his sentence from 18 to 36 months to life imprisonment.  Ouch.

UPDATE: A review of Denton and Feemster reinforces not only that the guidelines remain the gold standard for reasonableness review, but also that the circuit courts continue to ignore Congress's commands in section 3553(a) of the Sentencing Reform Act that courts are to impose sentence "sufficient, but not greater than necessary," to comply with the purposes of punishment. 

In Denton, a prosecutor obviously at some point thought a sentence in the range of 18 to 36 months was adequate.  Nevertheless, the district judge apparently decided to impose a sentence of life imprisonment, and the Eighth Circuit declares this sentence "not unreasonable" in two sentences of summary analysis.   Meanwhile, in Feemster, the district court twice explained why it thought the 30-year sentence suggested by the career-offender guidelines was greater than necessary, but the Eighth Circuit is now requiring the district court to provide a "more explicit and thorough consideration of all the factors" in 3553(a).

Follow-up on Ninth Circuit's victim rights ruling

As first discussed here, last Friday the Ninth Circuit addressed an important and essentially new issue of sentencing procedure by exploring "whether the Crime Victims' Rights Act, 18 U.S.C. § 3771, gives victims the right to allocute at sentencing" in Kenna v. US District Court for the Central District of California, No. 05-73467 (9th Cir. Jan. 20, 2006) (available here).  Today I see two interesting follow-up items:

1.  This article from The Recorder discusses the ruling and notes that, although the Kenna ruling is "a victory for crime victims, [Kenna's lawyer] said the ruling underscored that courts are not yet prepared to deal with new judicial guidelines mandated by the act.  It took more than eight months for Kenna's case to be decided, even though the law directs that such petitions be decided within 72 hours."

2.  Thanks to this tip from Appellate Law & Practice, I see that Professor Shaun Martin has more than a few choice words here about Judge Kozinski's work in Kenna.  Here's a taste: "Judge Friedman [in a short separate opinion] may say more smart things in those three paragraphs -- and definitely says a lot fewer stupid things -- than Judge Kozinski does in his 13-page opinion for the majority."

Capital news and notes

Today's papers have a number of interesting death penalty items this morning:

• This article from California details that "nearly three decades after capital punishment was reinstated in California, the constitutionality of using pancuronium bromide is one of several active disputes that could force systemic changes."

• This editorial from the Houston Chronicle contends that "efforts to determine whether a state has executed an innocent man reflect the country's growing unease with capital punishment."

• This article details that "the U.S. Army has issued new regulations governing the death penalty, raising speculation that the military might be preparing for its first execution since 1961. "

Of sentencing interest in the latest Harvard Law Review

The January issue of the Harvard Law Review is now on-line here, and there are two items that should be of particular interest for sentencing folks:

• Professor Bill Stuntz has a provocative and important article entitled The Political Constitution of Political Justice.  This article has already generated justifiable blogosphere praise/buzz (see here and here).

• This student comment is highly critical of recent sex offender legislation in Alabama, and it concludes that the new rash of tough sex offender laws "represent reflexive legislative reactions to public hysteria, not rational policy decisions" which in fact "waste not only public resources, but also an opportunity to actually protect the safety and well-being of potential victims of child sexual abuse."

Interesting Ninth Circuit opinion on "crime of violence"

A decision from the Ninth Circuit today in US v. Serna, No. 04-10597 (9th Cir. Jan. 23, 2006) (available here), provides another interesting window into the bizarro world of the federal sentencing guidelines.  I have previously noted how a "crime of violence" is interpreted under the guidelines can often be very important and very curious: crimes such as operating a vehicle without the owner's consent and fleeing a police officer can qualify as a "crime of violence" leading to large sentence increases.  But, through the Ninth Circuit's decision in Serna, we learn today that illegal possession of an assault weapon does not qualify as a "crime of violence" under the guidelines.

I had long ago hoped that Booker might lead to a shrinking of the importance of the curiouser and curiouser jurisprudence surrounding "crimes of violence."  Sadly, since the guidelines' diktats have remained the focal point of federal sentencing, it appears that Booker has not yet brought us out of this federal sentencing rabbit hole.

Looking ahead to SCOTUS Blakely action

As detailed over at SCOTUSblog, there wasn't any notable sentencing action in the Supreme Court's work today and now the Court goes into recess for four weeks.  Not only does this schedule allow everyone plenty of time to enjoy SuperBowl hype, it also provides time to gear up for the notable Blakely action that will be on tap when the Justice get back to work.  Specifically, there are at least two big Blakely stories that will unfold in the coming months:

• As shown from this docket sheet, the Gomez case from Tennessee (background in this post) is scheduled for its third SCOTUS conference on February 17.  And, intriguingly, a number of the Blakely cases coming from California will also be conferenced that day, as revealed by docket sheets in Black, Cunningham, Diaz, and Harless.  Consequently, by the second half of February, we ought to have some new information and insights concerning whether, when and how the Supreme Court may examine state sentencing systems that have elided Blakely.

• A bit of Blakely March madness will develop around the Supreme Court's consideration of Washington v. Recuenco (docket 05-83), which concerns whether Blakely errors can be subject to harmless-error analysis.  Though not yet officially scheduled, Recuenco will likely be argued in the second half of March.  I provided some coverage of Recuenco back in October when cert. was granted, and I plan to discuss the case a lot more as oral argument approaches.

Folks interested in these and other state Blakely stories should be sure to check out this recent issue of the Federal Sentencing Reporter, which provides thorough and thoughtful coverage of the state of Blakely in the States.  More background on that issue is available at this post.

UPDATE:  Based on this post about the argument schedule at SCOTUSblog, it now appears that Recuenco won't be argued until April (even though cert. was granted well before some of the cases now scheduled to be argued in March).  Hmmmm.

A very public plea for a (very unlikely?) clemency

As detailed in this CNN article, "after years of silence, the father of American-born Taliban soldier John Walker Lindh asked President Bush on Thursday to grant clemency to his son, who he says was wrongly maligned as a traitor and murderer."   I hope the Lindh family is not holding its breath: in the recent words of former pardon attorney Margaret Colgate Love, President Bush's clemency and pardon work has been "careful to the point of trivializing his pardon power."

Related posts with a lot more coverage of the President's clemency and pardon work:

• A thorough review of GWB's pardon work
• A new round of Bush pardons
• More pardons from President Bush
• More (minor) pardons from President Bush
• More insights on the recent Bush pardons
• Bush's stingy pardon practice
• More pardon buzz
• Media criticism of Bush's pardon practice
• The Washington Post on Bush's pardons

The state of sentencing in Oregon

Oregon Circuit Court Judge Michael Marcus, who has this fascinating site supporting his "Smart Sentencing" Project, was reported that Oregon has its newly revised "Criminal Benchbook" on the Oregon courts' public site here.   Judge Marcus has these interesting comments about this interesting resource:

The benchbook is 1160 pages, pdf format, searchable, hyperlinked in the table of contents [and elsewhere], and also navigable by the usual Adobe Reader tools.  Unique, and uniquely vetted by the Criminal Law Committee of the Oregon Judicial Conference [no other portion was deemed controversial], are the first 30 pages of the Sentencing chapter, which notes current sentencing issues and provides practical suggestions for smart sentencing analysis -- all beginning at page 727.

I have quickly scanned the sentencing chapter of the benchbook, and it makes for an interesting read.

Booker Debate Club highlights

As I had hoped, the Legal Affairs' Debate Club was a great setting to discuss post-Booker realities.  The full debate is available at this link, and Legal Affairs has graciously granted permission for the full text to be reprinted in a forthcoming issue of the Federal Sentencing Reporter.  Below I have excerpted some highlights of the extended exchanges I had with Professor Frank Bowman in our debate about the future of federal sentencing: 

DOUG: Congress should steadfastly resist any proposed quick fixes for the federal sentencing system. Congress should give the U.S. Sentencing Commission and other interested groups ample time to conduct in-depth analyses and assessments of post-Booker sentencing realities.

FRANK:  A year has passed since the Booker decision [and] we have a very good idea about how the post-Booker system has worked so far.... The Federal Sentencing Guidelines survived Booker.  They are advisory, but remain a legally relevant, and in some jurisdictions dominant, factor in determining federal sentences.  Nonetheless, since Booker, the rate of compliance with the Guidelines, by which I mean the percentage of cases sentenced within the guideline range calculated by the sentencing judge, has declined by about 11% nationally — from about 72% to about 61%.

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

Indeed, I have been disappointed to discover that a culture of guideline compliance is so entrenched in the federal sentencing system.... [W]hen I look over the post-Booker landscape, I am actually most concerned by how little change we've seen in judicial sentencing practices.

FRANK:  There is a substantial group of folks who, a year or so ago, were withering in their criticism of the pre-Booker guidelines and passionate in their cries for abolition of that assertedly awful system, but who are now arguing passionately that the post-Booker guidelines should be left unmolested....  What's going on here?  Why has a new system so very close in design, operation, and outcomes to the old one so many loved to hate suddenly become the apple of so many eyes?  The answer plainly lies in considerations of political pragmatism.

DOUG:  [T]hough I agree that pragmatism more than principle explains Booker's fans, I also think devotion to Booker is grounded in its potential.... But Booker's potential will be wasted if judges and the Sentencing Commission continue to cling to the existing guidelines like Linus clutching his security blanket.  I fear that it is some judges and members of the Sentencing Commission whose reaction to Booker has been unduly shaped by pragmatism rather than principle.  I sense many are still embracing and even extolling the current guidelines out of fear that Congress might over-react to any efforts to bring more humanity to sentencing decision-making.  But, rather than be stifled by such an understandable but unhealthy fear, judges and the Sentencing Commission should seize this unique post-Booker moment as an opportunity to begin incrementally developing a more fair and effective federal sentencing system.

FRANK:  In the end, I think the post-Booker system neither will nor should survive for long....  [W]hat will drive the Justice Department is its perception of what it has lost, and not what it has held onto. Moreover, though post-Booker sentencing practice viewed through the lens of national averages has changed surprisingly modestly so far, the direction of the observable changes is plain and not congenial to either Congress or the Justice Department.  Still more importantly, as time goes on and judges become more accustomed to the restoration of a measure of their old authority, they will surely exercise it more....  In consequence, whatever DOJ policymakers may think of the current state of things, they will act based on predictions of a future they will see as growing ever less attractive.

DOUG:  You are absolutely right that "what will drive the Justice Department is its perception of what it has lost, and not what it has held onto."  But ... post-Booker prosecutors have not lost the ability to help achieve justice in individual cases.  Rather, what prosecutors seem to have lost (though only somewhat) as a result of Booker is (1) their considerable power to roll over defendants during plea negotiations through the threat of harsh mandatory sentencing terms, and (2) their unfettered discretion to dictate precise federal sentencing outcomes through their charging and plea decisions.

FRANK:  If a fundamental reconfiguration of federal sentencing structures is to occur, someone or some institution outside of Congress, the Justice Department, and the robed judiciary will have to take the lead in formulating and advancing it.  Congress lacks the expertise for the job. DOJ has the expertise but not the motivation.  The judges don't do legislation.  Institutionally, that leaves the Sentencing Commission.  One of the most puzzling features of the post-Booker landscape is the absence of the Commission as anything other than a gatherer of data.  The Commission has the time, the expertise, the data, and (one would think) the motivation to take a leading role in molding thinking about where we should go from here.  But the silence from the second floor of the Thurgood Marshall Building has been deafening.